Vonherberg v. City of Seattle, 568.

• Decision Date: 17 May 1927
• Docket Number: No. 568.,568.
• Citation: 20 F.2d 247
• Parties: VONHERBERG v. CITY OF SEATTLE et al.
• Court: U.S. District Court — Western District of Washington

20 F.2d 247 (1927)

VONHERBERG v. CITY OF SEATTLE et al.

No. 568.

District Court, W. D. Washington, N. D.

May 17, 1927.

Bausman, Oldham & Eggerman and Jay C. Allen, all of Seattle, Wash., for plaintiff.

Thomas J. L. Kennedy, Corp. Counsel, and J. A. Newton, A. C. Van Soelen, and Ray Dumett, Assts. to Corp. Counsel, all of Seattle, Wash., for city of Seattle.

James B. Howe, Edgar L. Crider, and Emery E. Hess, all of Seattle, Wash., for Puget Sound Power & Light Co.

NETERER, District Judge.

In addition to the facts set out in Re Puget Sound Power & Light Co. (Von Herberg v. City of Seattle et al.) 18 F.(2d) 57, it is only necessary to say that upon motion of the plaintiff a temporary restraining order was issued. The defendant city appeared and filed various motions and demurrers, upon disposition of which in the state court an answer and cross-complaint was filed, and moved that the Puget Sound Power & Light Company be brought in as a necessary party. The motion to bring in the additional party was granted, and thereafter the power company removed the cause to this court. A motion by plaintiff to remand was denied by Circuit Judge Dietrich.

The defendant city now moved to dissolve the temporary restraining order, and upon consent of the plaintiff the motion is granted. The city also moves to dismiss the action upon the ground that the issue has become moot, and in support of this motion files an affidavit of the assistant city treasurer that on February 25, 1927, the defendant city passed Ordinance 52051, entitled "An ordinance relating to and authorizing certain temporary loans to the light fund and the city railway fund, respectively, appropriating moneys therefor, providing for the repayment of such loans and declaring an emergency"; that pursuant thereto the city treasurer transferred from the "light fund" to the "railway fund" the sum of $600,000 as a temporary loan; that all warrants issued against the "railway fund" have been called for payment and are payable on presentation; that the city "railway fund" is now on a cash basis; that the installment of principal and interest due March 1, 1927, aggregating $1,145,665 of municipal street railway utility obligations, are paid; that $350,000 has been paid to the "city light fund" out of the "railway fund"; that the $135,000 transferred pursuant to Ordinance No. 52193 from the "light fund" to the "railway fund" has been paid; "that the daily receipts of the street railway system average more than $16,000 a day; that the temporary loan pursuant to Ordinance No. 52551 will be paid in full from said receipts within the next 60 days."

Whether the issue tendered by the first cause of action is moot is immaterial, so far as this motion is concerned. The motion is directed against the complaint, consisting of two counts. The second count challenges the right to transfer from the light fund, or from the water fund, to the railway fund. The plaintiff, as a general taxpayer and a holder of bonds issued against the light fund and the water fund, is qualified to challenge this right. Whether the transfer of $600,000 from the water fund to the railway fund and the calling in of the warrants issued against the railway fund, including the warrants held by the plaintiff, makes the issue tendered by that cause of action moot, is not necessary to determine.

Payment of $135,000 transferred from the light fund to the railway fund prior to the date of the bringing of this action, by transferring $600,000 from the same fund after bringing the action, cannot affect the action. If the transfer was wrong when made, it cannot be made right and the action defeated by committing a like wrong to right the prior wrong after the action is commenced. The action may not be defeated by subsequent transfers of funds to pay prior transfers, and by repetition evade review. The city council is a continuing body, and its act is capable of repetition, and from the complaint it is threatening to continue, and the defendant's conduct confirms the complaint, and manifestly...