2 Wash. 576 | Wash. | 1891
The opinion of the court was delivered by
— On the 1st day of June, 1891, an election was held in the city of Seattle, under the act of March 7, 1891, p. 267, entitled "An act to enable cities and towns to validate certain warrants and other obligations and evidences of indebtedness on the part of such cities and towns, issued by the corporate authorities thereof in excess of their legal
At the same election there was also submitted the proposition to fund this indebtedness when validated, by the issuance of bonds in pursuance of the act of March 7, 1891, p. 269, entitled “An act authorizing cities and towns to submit to the voters therein propositions to fund indebtedness of such cities and towns by the issuing of bonds therefor, at the same election at which the previous attempted incurring of such indebtedness, or any part thereof, may
“ (1) That at the date of issue of all the warrants proposed to be validated, from warrant No. 4251, in class 2, dated December 7, 1889, for the sum of $32.87, and payable out of the road fund of said city, its absolute indebtedness, excluding these warrants, was $160,169, which was one per cent, of the taxable property of said city, according to the last previous assessment thereof, August 30, 1889, the assessment having been $16,016,900. (2) That at the date of issue of all the warrants proposed to be validated, from warrant No. 1395 in class 3, dated May 3, 1890, for the sum of $36.81, payable out of the road fund of said city, its absolute indebtedness, excluding these warrants, was $240,253.50, which was one and one-half per cent, of the taxable property of said city according to the said assessment. (3) That there were outstanding, and not included in the above mentioned $240,253.50, of absolute indebtedness, or in any of the warrants claimed to have been validated, on the 5th day of May, 1890, certain ‘street improvement warrants? issued under and by virtue of § 8, ch. 3 of the charter of the city of Seattle, granted by the territorial legislature February 4, 1886, amounting in all to $303,817, and which should be considered as part of the general indebtedness of said city. (4) That prior to May 5, 1890, the city of Seattle had, by virtue of the power conferred upon it by § 5 of chapter 2 of its said charter of 1886, condemned and taken certain lands in said city to widen and extend Front, Second, Commercial, South Second and South Third streets, and to establish a certain public square at the northwest corner of Front street and Yesler avenue; that, in the course of such condemnation and taking, awards of damages had been allowed against it in the total sum of $247,000, which sum should be considered as a part of the general indebtedness'*581 of said city; for the reason that the said city has taken possession of said lands, but has paid no part of the said awards, and has collected less than one per cent, of the same from the property assessed to pay therefor. (5) That at the dates of the issuance of all the warrants in classes 3 and 4, issued after May 5, 1890 — that is to say, beginning with warrant No. 333, for the sum of $450, payable out of the fire fund of said city, and including said warrant, and all warrants dated and issued subsequently thereto, and included in classes 3 and 4 — the absolute indebtedness of said city, if said street improvement warrants and said condemnation awards were a part thereof, exceeded five per cent, of the taxable property of said city, as appeared by the assessment of August 30, 1889, to wit, $827,833. (61 That there has been no vote of said city to authorize its indebtedness to be increased beyond one and one-half per cent., other than the vote of June 1, 1891.”
The answer of the city admitted the facts stated in the complaint to be true, but alleged affirmatively;
“(1) That by § 5 of the act of February 26, 1890 (Acts 1890, p. 225), all of the indebtedness of the city of Seattle in excess of one per cent, of the assessment of 1889, and not in excess of one and one-half per cent, thereof, was validated and made legal indebtedness thereof. (2) That on February 26, 1890, the absolute indebtedness of the city of Seattle, including the indebtedness thus legalized, did not reach the limit of one and one-half per cent., nor was that limit reached until April 29, 1890, and after the issuance of warrant No. 1394, on the road fund, for the sum of $1,575, included in class 3. (3) That by the terms of the said street improvement warrants, and under the law governing their issuance, they were not primarily a general liability of the city of Seattle, but were chargeable to and payable out of particular funds, to be derived from local assessments. (4) That the said condemnation awards were likewise not a primary or general liability of the city, but were chargeable and payable out of local assessments only.”
The plaintiff interposed a general demurrer to the answer, upon the argument of which the court sustained it as a demurrer to the complaint, and dismissed the action.
First: Under the charter of 1886 the city of Seattle had the power to make street improvements either with funds drawn directly from the treasury or by creating local assessment districts upon the property, within which a special levy could be laid to pay for the entire expense. These warrants were the result of proceedings of the latter class. They show upon their face that they are payable out of the “street improvement funds, under ordinance No. —.” The agreements with the contractors for the work were to the effect that they should be paid “out of a special fund.” It is fair to presume that the special funds have been provided by the city in all these eases, and that in due course the money will be realized to pay off the warrants. What might be the liability of the city in case it should fail, neglect or refuse to collect special taxes in such cases, is not for us to say here. It suffices that there is no present liability on the part of the city to pay out of its treasury.
In Argenti v. San Francisco, 16 Cal. 256, there was no restriction upon the use of the funds derived from special assessments. It went into the treasury, and its identity was lost; besides which the contract sued upon was general in its terms, obligating the city to pay. The case turned upon a question of agency. In Atchison v. Byrnes, 22 Kan. 65, the city failed to make a sufficient assessment, and refused to issue the bonds contracted for. In Craycraft v. Selvage, 10 Bush, 696, the city was held liable only for that portion of the contract which fronted land not subject to assessment. As to other frontage the contractor was relegated to the land. In French v. Burling
Second; Under its charter of 1886 the city of Seattle had the power to widen streets and. to condemn such real estate as might be necessary therefor. This power was given upon the theory that it would be exercised for the special benefit of particular localities, and would be paid for by the property benefited. As required in § 101, the assessment of benefits was a part of the proceedings for condemnation, as necessary as any other part. It is shown by the record here that there was such an assessment in each case of condemnation, but that less than one per cent, of the amount assessed has been paid. With this failure to collect we have nothing to do. If the city has taken possession of the condemned lands, it is for the unpaid owners thereof to pursue such plain remedies as the law provides them. We are of the opinion that the neglect of the city does not place their claims in the category of the city’s general indebtedness. The orderly progress of the business would have required that they be paid before they surrendered possession; but, if they waived their right to prepayment their resort should none the less be to the source provided by law for their re-imbursement. The
The act of February 1, 1888 (page 74), permitted cities to incur indebtedness without a popular vote up to one per cent, of its taxable property. Therefore, under her assessment for 1889 of $16,016,900, the city of Seattle could lawfully owe $160,169, and no more, until the act of February 26, 1890, extended the limit to one and one-half per cent., viz., $240,253.50. But, before going further, we will revert to the indebtedness sought to be validated at the election of June 1. It does not clearly appear by the ordinances that any part of the sums covered by classes 1, 2, 3 and 4 was within the one per cent, limit, and therefore valid without a vote, but the complaint does show clearly that all of class 1, and up to and including warrant No. 4250 of class 2, were warrants within the one per cent, limit, and therefore there was no necessity for any vote to render them valid indebtedness; or, in other words, warrant No. 4251, in class 2, was the first warrant which made the city debt more than $160,169, which was then the lawful limit. That warrant was issued and dated December 7, 1889. "Whatever warrants were issued, then, from No. 4251, December 7, 1889, to February 26, 1890, were void, and expressed no liability of the city.
Firsts We hold that the act really embraced but one subject, viz., placing cities and towns upon the level of the constitution, as regarded their power to incur indebtedness. Merely incidental to this primary object was the declaration of what should be considered indébtedness within the meaning of the act, and the method of providing for its payment.
Second: The application of the act to cities and towns existing at the adoption of the constitution was not in violation of that instrument. True, § 10 of article 11 required the incorporation; organization and classification of cities in proportion to population; but at the same session of the legislature, by various acts, this requirement was complied with, and the same authority was conferred upon such municipal corporations as should be thereafter organized. At the date of this act it must be remembered there were no incorporated cities or towns in the state except such as had been created by special laws or charters, and there had been no law under which one could be created since the adoption of the constitution. The legislation of the session, therefore, taken in pari matei'ia, was uniform and universal in its operation. That it was not all contained in one act, is not a sufficient ground for now making it wholly one-sided and unfair, which would be the result of striking out this act.
Third: The first clause of § 5 provides “that any indebtedness now owing by any such city or town, contracted
“For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes.”
And § 12 of article 11 is as follows:
“The legislature shall have no power to impose taxes upon counties, cities, towns or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.”
The constitution of the State of Illinois in 1848 contained the clause above quoted from article 7, in hcec verba, and in that state there are many well considered cases which hold that it is incompetent for the legislature to directly lay any burden of taxation for municipal purposes upon the cities of that state. See People v. Mayor, etc., 51 Ill. 17. In other states not having such a constitutional provision the power of the legislature over municipal corporations has, in some cases, been held to be well nigh omnipotent, as in Sage v. Brooklyn, supra. We find no
From February 26,1890, there was a short period when, according to the pleadings, the indebtedness of the city of Seattle did not exceed the one and one-half per cent, limit. The warrants covering this period, although they needed no validation, were also included in the classes submitted for validation at the election of June 1st. Then, however, there followed a class of warrants the last of which, páyable out of the road fund, was issued August 2, 1890, and the last of which, payable out of the fire fund, was issued August 16, 1890, all of which it is agreed were in excess of the one and one-half per cent, limit, and were without any legal authority until March 7, 1891, when the act of that date, providing for an election for the validation of such warrants was passed with an emergency clause. Strictly, the act had no application to any of the warrants included in the propositions to validate, excepting those here spoken of, although some doubt as to the construction of the former acts may have justified the submission of all to the test of a vote. The criticism made to the act of February 26, 1890, that it was not general, but applied only to cities and towns “now having a corporate existence in this state,” is renewed to this act; but there is no propriety in the objection. It is a curative act, and only applies to what had been done before the date of its passage. If, instead of the objectionable words, the act had read, “any city or town,” the effect would have been just the same.
Section 2 of the act of February 26, 1890, and the other acts of that session, then went further, and permitted a further indebtedness up to the five per cent, limit, whenever three-fifths of the voters therein assent thereto. This we'conceive to mean that, before any such additional debt shall be lawfully created, an election shall have been had, and the authority voted. But here the vital question appears whether the legislature is bound by the terms of the constitution, so that it can, under no circumstances, permit the vote of assent to be taken after the benefit for which the debt is sought to be undertaken has been re
There were some minor objections to the issuance of the bonds in question which we shall now notice. The city council passed ordinance No. 1706, calling the election on June 1st, on the question of the validation of the excess indebtedness; and it also passed ordinance No. 1707, calling an election upon the same day, under the act of March 7, 1891, p. 269, to determine whether bonds should issue covering the indebtedness sought to be ratified, and other existing indebtedness of the city embraced in the four classes of warrants hereinbefore mentioned. The additional points raised mainly relate to the ordinance No. 1707, and will be treated seriatim,.
First: There was but one notice of election embracing the two ordinances. Under the statute but one election was provided for, although there were to be separate votes on the separate propositions. We hold that but one notice was required or proper.
Second: Before the election was ordered, the city authorities entered into a contract with N. W. Harris & Co., of Chicago, 111., the substance of which was that the election should be called, and that whatever of the warrants in the said four classes should be valid warrants on the 1st day of July, 1891, should be funded by the issuance of city bonds, which should be sold to Harris & Co., they agreeing to take them upon terms specified. The question
etFourths To borrow money for corporate purposes on the credit of the corporation, and to issue negotiable bonds therefor on such conditions and in such manner as shall be prescribed in its charter.”
The charter of October 1, 1890, of the city of Seattle, in the fifth subdivision of § 22, art. 4, empowers the city council to borrow money for corporate purposes on the credit of the city, and to authorize the issue of negotiable bonds therefor in accordance with the charter and the constitution and laws of the state. This, under the law, would leave the matter of issuing bonds to the wisdom of the council, both as to the propriety of the issue and the details. But by § 30, art. 4, there is this further provision:
"When loans shall be created exceeding one and a half per centum oí the taxable property in the city, and bonds therefor issued by the city under this charter, the city council, in authorizing and providing for the same, shall direct the times and manner of payment and rates of interest; but no such bonds shall be issued except as pro*593 vided by law, nor unless the proposition for creating such indebtedness shall have been previously submitted to the electors of the city at a regular general or special election, of which thirty days’ notice shall have been published in the city official newspapers, and such proposition shall have then received the assent of three-fifths of the voters voting at such election. The mode and manner of submitting such proposition to the voters shall be prescribed by ordinance. And, in case such three-fifths of the voters are in favor of such loan, the city council may, after such election, by ordinance confirm the loan; but no bonds shall be issued therefor until after such confirmation, nor until the city council shall have made specific provision for payment annually of interest on such bonds, and for a fund to pay the interest on such bonds, and a sinking fund to be raised by annual tax at least five years before the bonds are due, sufficient to pay and discharge such bonds at maturity j and the faith and property of the city shall be and is hereby pledged for the final payment of any and all such loans.”
Inasmuch as a part of the bonds proposed in this instance were to fund indebtedness in excess of one and one-half per cent., § 30 made it necessary to submit the entire proposition in substantially the form in which it was submitted} and there was no error.
Thirds The amount of bonds proposed to be issued and voted was §460,000. The face of the warrants to be funded is §370,979.44, and the interest accrued thereon was estimated in ordinance- 1707 to be §48.200.56, making a total of §419,180. Objection is made that the proposition to fund was indefinite as to amount, and for that reason Cannot stand. There is no perceptible reason why the sum needed could not have been reached without leaving so wide a margin as the difference between §460,000 and §419.180. But the only authority given the city officers is to issue bonds to an amount sufficient to take up the warrants, the face value of which is §370,979.44, and the legal interest thereon; and until it shall appear that they are about to exceed that authority there would be no
Fourth: Some question was made as to whether the ordinance should not have provided for bonds of the kind prescribed by the act of March 26, 1890, p. 520, but we do not consider any of the provisions of that act as applying to any bonds other than those specially provided for therein, viz., for those issued to raise money for water, sewer, or light plants. The judgment of the court below is therefore affirmed.