73 Wash. 272 | Wash. | 1913
This action was brought by the plaintiffs, as taxpayers, to prevent the delivery of certain bonds to the defendant International Contract Company by the city of Ellensburg, and also to enjoin the International Contract Company from proceeding under a contract for the construction of certain water works for the city. Upon issues joined, the case was tried to the court without a jury, and resulted in a dismissal. Plaintiffs have appealed from that judgment.
The facts are not disputed, and are in substance as follows: The city of Ellensburg is a city of the third class. The city and its inhabitants are supplied with water for fire, domestic, and other purposes by a water works system operated by a private corporation under a franchise from the city. On August 7,1911, the city passed Ordinance No. 549, which specified and adopted a system and plan for the construction of a water supply by the city. It declared the estimated cost of the plan, and provided that the system to be constructed should be paid for by bonds payable, principal and interest, from the revenues of the system. The ordinance also provided for a submission of the system and plan, together with the method of payment, for ratifica
“It is proposed that said above described water works plant be connected with distributing system located within the limits of said city, which shall be constructed by said city by local assessment upon the property specially benefited thereby, or by such other method as the city may adopt.” Ordinance No. 549.
On August 11, 1911, the city council passed a resolution declaring the intention of said city to construct a water distributing system within the limits of the city, the cost and expense of which was to be borne by the property specially benefited. Thereafter, on September 5, 1911, the water works plan as proposed by Ordinance No. 549 was submitted to the voters, and the same was approved by the necessary vote. Thereafter, on October 16, 1911, the city passed an Ordinance No. 558, which provided for the construction of the water distributing system in accordance with the resolution of August 11, 1911, and provided for the payment therefor by bonds at the cost and expense of the property specially benefited thereby by special assessment against the property within the district to the amount of $50,000, the estimated cost thereof.
After the approval of Ordinance No. 549, which provided for the water works plan and system without the city, but did not include the distributing system, the city council
The appellants argue that the court erred in dismissing the action for several reasons, which we shall notice in their order. (1) It is contended that, because the proposed work was not an addition to or betterment of existing water works, and did not specify a plan for a completed system and declare the estimated cost and submit such plan for the ratification of the qualified voters, the city was without authority to proceed with the work. In short, as we understand appellants’ position, it is that the city was authorized only to adopt a complete system for obtaining and delivering water to the consumers. It will be noticed that the city attempted to, and did by Ordinance No. 549, adopt a plan with all the necessary requirements for obtaining a water supply. That ordinance did not provide for a distributing system within the city. Counsel for appellants maintain that the supply and distributing systems constitute the whole of the water works, and that the city could not adopt one without the other. We are of the opinion that this result does not necessarily follow. The statute (Rem. & Bal. Code, § 8005), provides:
“Any incorporated city or town within the state be, and is hereby, authorized to construct, condemn and purchase, purchase, acquire, add to, maintain, conduct and operate waterworks, within or without its limits, for the purpose of fur*nishing such city or town and the inhabitants thereof, and any other persons, with an ample supply of water for all uses and purposes, public and private.”
The next section provides :
“Whenever the city council . ... of any such city or town shall deem it advisable that the city or town shall purchase, acquire, or construct any public utility mentioned in section 8005 . . . the common council . . shall provide therefor by ordinance, which shall specify and adopt the system or plan proposed, and declare the estimated cost thereof, as near as may be, and the same shall be submitted ... to the qualified voters.” Rem. & Bal. Code, § 8006.
“We find no warrant for holding that a council may, by mere resolution, do piecemeal what it may not do as an entirety. If it could adopt and purchase or lease a source of supply without plan or submission, it could, with equal show of reason, carry out as separate acts in the same way each detail of a new water system, and the statute would be nugatory.”
But that was said in reference to a case where we held that the city could not adopt a plan by mere resolution, or pur
(2) It is argued that the resolution creating the local improvement district, passed by the city council on August 11, 1911, was in excess of the powers of the city council, for the reason that it was passed before the special election of September 5, 1911. We think there is no merit in this contention, because the distributing system was adopted by a resolution of the city council and was independent of the plan which was submitted to the voters. In other words, the vote of the people on the supply plan did not necessarily control the jurisdiction of the city council to order the local improvement. The local improvement was for the purpose of furnishing water directly to the property benefited, while the supply system was a general benefit to the whole city. The statute (Laws 1911, p. MS, § 8), provides: That any local improvement may be initiated directly with the city or town council by a resolution declaring its intention to order such improvement. No submission to the voters is necessary,
(8) Appellants next contend that the initiation of the local improvement district was a part of the proposed water system, and was an evasion of the requirement to submit that portion of the plan and its estimated cost to the vote of the people; that the system constitutes a general benefit to the community at large and cannot possibly be of any special benefit to the city, by reason of the fact that a private water system is already in use; that the owners of real estate within the city receive no benefit other than the general public received. It is no doubt true that the distributing system proposed to be constructed upon the improvement district plan will be used in connection with the water supply system. But, as we have seen above, these two works may be constructed separately and paid for in the manner provided for in the contracts. It was understood by all the voters of the city who had informed themselves of the proposed plan as submitted for a water supply, that a distributing system would thereafter be constructed. So that the voters knew what was sought to be attained, and they consented thereto. We think it cannot be said that there was any evasion.
On the other points, to the effect that the distributing system constitutes a general benefit and is of no special benefit; those questions can only be urged to the council on a hearing upon the assessment roll for the local improvement. Laws 1911, p. 444, § 10.
(4) Appellants further argue that the ordinances did not provide for the issuance of bonds in payment of the work, and that there was no notice to contractors that the work was to be paid for in bonds. As we have seen above, the bonds were offered for sale and no bids were received therefor. Calls were then made for bids, and bidders were notified that bids would be made upon blank forms furnished by the engineer. And bids were made upon these forms, which provided that payment may be made by delivering bonds at par. The act
It is immaterial that notice to the contractors did not state that the work upon which bids were asked would be paid for in bonds, as the notices provided that blank forms for bids furnished by the engineer only could be used; these blank forms did provide for payment in bonds. At most this was a mere irregularity which did not affect the validity of the contracts. Kneeland v. Furlong, 20 Wis. 460; North Yakima v. Scudder, 41 Wash. 15, 82 Pac. 1022.
(5) Lastly, it is contended by the appellants that the contract which the city finally made with the International Contract Company was not in conformity with Ordinance No. 557 relating to local improvements, because that ordinance provides that a reserve fund of twenty-five per cent of the estimate shall be withheld for a period of thirty days after final completion of the improvement, while the contract provides for a reserve fund of only fifteen per cent. Moran v. Thompson, 20 Wash. 525, 56 Pac. 29, is cited to sustain this position. That was a case where the charter required a certain amount to be withheld, and the city council, of course, was bound by the provisions of the charter; while in this case the reserve fund of twenty-five per cent was provided for by ordinance. The power which provided for the reserve fund of course could waive it. This reserve was for the benefit of the city, and the city was authorized, of course, to waive that provision if it saw fit to do so, which it apparently did in this case. In any event, this provision of the ordinance applied only to the improvement district and not to the water supply contract.
We find no error in the judgment. It is therefore affirmed.
Crow, C. J., Parker, and Gose, JJ., concur.