14 Wash. 376 | Wash. | 1896
The opinion of the court was delivered by
Appellant brought this action to compel the city treasurer of the city of. Tacoma to pay a ■certain warrant for the sum of $303.67. Said warrant was made and delivered by the city of Tacoma on September 29, 1893; was presented for payment on September 30,. 1893; and the treasurer of said city then and there indorsed upon said warrant, “Not paid for want of funds.” It is conceded in .this case that there are sufficient funds in the treasury to pay the warrant in controversy if it is legal to pay it out of the revenues raised by the city for the present fiscal year; the contention of the appellant being that this
On July 28, 1880, ordinance No. 29 was passed by the city of Tacoma, a city of the first class, which ordinance provides, among other things, that the treasurer shall redeem warrants in the order of their number and date. On March 23,1888, ordinance No. 194 was approved, providing among other things, that all revenue accruing to the city of Tacoma, except the tax levy for a “road property tax,” a “poll tax,” and money arising from street improvement assessments, or other improvement assessments, or special tax levied for a special purpose, shall be collected and credited to the general fund. On November 2,1895, subsequent to the issuance of this warrant, the city of Tacoma passed an ordinance (No. 1029) providing for a levy of 11 mills upon the dollar upon all the taxable property of the city, for the purpose of raising sufficient revenue to carry on the different departments of the municipal government of the city for the fiscal year beginning on July 1, 1895, and ending on Juné 30, 1896, and proportioning the funds to be raised from such assessment to the interest fund, to the salary fund, and to the general expense fund. On February 15, 1896, ordinance No. 1051 was passed, providing for the disbursement of the money raised by means of the assessment above mentioned, and under the provisions of which ordinance the fund raised by the assessment would be absorbed to the exclusion of claims against the general fund; and it is
We do not think there is anything in respondents’
Outside of these contentions, and on the general principles involved in the case, this case falls squarely within the rule announced by this court in Mason v. Purdy, 11 Wash. 591 (40 Pac. 130) where the court, in an exhaustive opinion, held that § 63 of the revenue act of 1893, declaring that county taxes shall be based upon the estimated county expenses for the ensuing year, cannot be construed as restricting the funds arising from the annual tax levy in any given year to the payment of such obligations only as may be incurred during the fiscal year following such levy. That case was decided upon well-prepared briefs, which, while not probably so elaborate as the respondents’ brief in this case, presented all the points here involved; and it was there held that, under our system of laws, which permits the carrying of an indebtedness, the object of the law in providing for the ascertainment of the expenses of the fiscal year was not for the purpose of confining the payment of the money, raised under the assessment provided for, to hills contracted in that year aloné, but was for the purpose of eliciting information which would prevent the extension of the debt beyond the constitutional or legal limit, still allowing payments to be made upon prior warrants, but assuring the redemption of as many warrants in value as claims were engendered against the county during the year. The
“ For these and other reasons, it is our opinion that the contention of the appellants that the object of the tax levied by the board of county commissioners, within the meaning of this constitutional provision, was the payment of all the county expenses for the ensuing fiscal year, and not the payment of the different classes of county expenses as therein provided for and segregated, cannot be sustained. It follows from what we have said, that, under the constitution, the legislature was at liberty to provide for the levy of taxes by the board of county commissioners for the payment of obligations already incurred by the county, as well as those thereafter to be incurred. The only remaining question is to decide whether or not it has done so.”
And the court, after referring to the circumstances existing in the several counties of the state, which were presumed to have been within the knowledge of the legislature at the time it enacted the law in question, concludes:
“ That these customs existed had been decided by the courts, which not only recognized the practice, but in numerous cases held that it was rightful. In doing so, they held that the warrants were entitled to payment in the order of their issue, out of any moneys in the funds upon which they were drawn, and that they had practically the same force as judgments, so that proceedings in mandamus were the proper means by which to secure their payment. ... It thus appears that it had been the universal custom among counties, recognized and upheld by every department of the government, to carry their indebtedness in the shape of these warrants, and to provide for their payment, in accordance with their date of issue, out of any moneys in the hands of the treasurer belonging to the fund upon which they were drawn, without reference to the tax levy from which such fund had been derived.”
In addition to the universal custom, which has prevailed almost from the organization of the territory up to the present time, to pay these warrants in the order of their issuance, the same session of the legislature which enacted the law relied upon by counsel for respondents (viz. Laws 1893, p. 167, § 2), two days before the law was passed providing for the assessment and collection of taxes in cities of the first class, passed the following comprehensive and unrestricted act (Laws 1893, p. 76), entitled
“An act in relation to county, school, city, and town warrants, and the manner of their payment
“SectioN 1. That all county, school, city and town warrants shall be paid according to their number, date and issue, and shall bear interest from and after their presentation to the proper treasurer :• provided, that no compound interest shall be paid directly or indirectly on any of said warrants.
“Sec. 2. No county auditor or clerk of the board of county . commissioners shall issue any county warrant within less than ten days from and after the date of the allowance of such warrant.”
That is all there is of this act. It is plain, positive and direct. It is an act in relation to the manner of the payment of warrants only, uncoupled with any other provisions. And § 2, p. 167, above referred to, must be construed with reference to this act, for it is not at all probable that the legislature intended to repeal the provisions of this direct act so soon after its
On the general proposition, however, of the right of the legislature to pass an act which would impair the obligation of a contract entered into under a prior act, under the provisions of the constitution of the United States, we are constrained to hold that a law providing for the diversion of a fund out of which a warrant was to he paid in the order of its issuance would be invalid so far as any warrants that were issued prior to the subsequent act were concerned. It is true that in California it has been held that a statute providing that claims against the county are entitled to payment according to priority of time in which they were presented must be construed as requiring the priority of payment only as between the warrants of any given year. This statute was construed in Shaw v. Statler, 74 Cal. 258 (15 Pac. 833), and in San Francisco Gas Co. v. Brickwedel, 62 Cal. 641; hut the decisions were based squarely upon an article of the California constitution providing that no indebtedness or liability should he incurred (except in the manner stated) exceeding in any year the income and revenue actually received by such county, city, town, township, board of education, or school district; and the supreme court rightly construed that limitation to mean that each year’s income and revenue must pay each year’s indebtedness and liability. It especially referred to the system previously prevailing in the municipalities of the state before the adoption of that restrictive provision of the constitution; and the earlier cases, before the enactment of
But, say the respondents in this case, “nobody is attempting to impair this obligation except' appellant. His warrant will be paid by the city according to its number, daté, and issue against the general fund. But that language does not exclude the special tax levy in question, nor the creation of new funds, if the general fund is left unimpaired.” We see nothing to indicate that the tax provided for under the new ordinance is a special tax. It seems to us to be as general as any other tax that is levied for municipal purposes. The case of Esser v. Spaulding, 17 Nev. 289 (30 Pac. 896), seems to be in point on some propositions in favor of respondents’ contention. There a provision of the statute which provides that, whenever there is a surplus in the salary fund, the board of county commissioners may transfer it to the general fund, and, whenever there is a deficiency, the board shall transfer to the salary fund a sufficient fund to meet all warrants drawn against the salary fund, was held to work no impairment of the obligation of contracts between a county and a person holding a certificate of indebtedness thereof payable out of the general fund, who was injuriously affected by the transfer to the salary fund. It is true, that this case is really not in point, from the fact that it held that no contract was entered into between the county and receiver of the warrant, while the contrary is the settled law of this state. Neither does the case of Charles River Bridge v. Warren Bridge, 11 Pet. 427, upon which the Nevada court seems to base its judgment, involve the principles that are involved in this case. However, the court says :
“ If we admit there was a contract, what was its extent ? Only that certificates against the general fund*385 should be paid out of that fund in the order of presentation or allowance. The salary law does not impair the obligation of that contract, even though'it exists, unless it is impaired by the passage of a general law, the effect of which is merely to postpone payment. The contract to pay out of the fund stated in the certificates has not been changed or impaired. It is still incumbent on the county to pay out of the general fund, and in the order of presentment or allowance.”
We are not impressed with either the logic or fairness of this reasoning. It is not difficult to see that the court awarded to the plaintiff in that case the letter, while depriving him of the spirit, of the law. It was not only the right to have his warrant paid out of a certain fund that was guaranteed to the plaintiff in that case or in this, but that guaranty carried with it the idea that the fund itself should not be diverted from the purposes to which the law under which he contracted applied it. It might as well be said that if the city of Tacoma, being the possessor of two springs of water, had contracted with the plaintiff that he should have a right to the use of one spring for the purpose of watering his stock or for domestic purposes, and, after having entered into that contract and received its pay, had inserted a pipe into the current which fed the spring, thereby conveying the water which would have emptied into the spring into another channel, and when the purchaser remonstrated it could say to him: “Your right has not been interfered with. The spring is there, and you have the first right to the use of it.” W e hardly think that the admissibility of such a practice would be urged in a court of justice, and yet it seems to us that it is a parallel case. It is the fund, and not the shell which contains the fund, that the plaintiff is interested in;
In Cloud v. Town of Sumas, 9 Wash. 399 (37 Pac. 305), it was held that the remedy of the holder of the warrant in case of the refusal of the treasurer of the corporation to pay the warrant in its order is to pro
On page 4 of the statement of facts by respondents, after setting forth the assessment, it is said:
“ Then for the fiscal year 1895-96 the city of Tacoma has the power to levy 20 mills for all purposes. This would produce the sum of $530,104. Having, however, levied but 11 mills, it has yet to its credit, unappropriated and unexpended, the sum of $238,547. In other words, by a mandamus proceeding, the plaintiff can secure that large sum to be placed in the general fund for the payment of his and other similar warrants. There is nothing in this record to show that this will not be sufficient to pay all general fund warrants. ”
The judgment will be reversed, and the' cause remanded, with instructions to enter judgment in accordance with the prayer of the plaintiff.