State Ex Rel. Keck v. City of Sunnyside , 181 Wash. 511 ( 1935 )

GERAGHTY, J., dissents. The entire city of Sunnyside is within the boundaries of sub-district 7, of drainage improvement district No. 3, of Yakima county. December 16, 1921, the county commissioners, pursuant to §§ 31 and 32, chapter 130, Laws of 1917, p. 540 (Rem. Comp. Stat., §§ 4431, 4435), levied an assessment against the city of Sunnyside, in the sum of $50,540.56, as and for special benefits accruing to the city by reason of the improvement. The special benefits consisted of better drainage of streets and alleys and in facilitating the construction of a sewer system and providing an outlet therefor. The assessment was payable in fifteen annual installments, with interest.

At the time the assessment was made (and at all times since), the city was indebted in excess of the debt limitation imposed upon municipal corporations by § 6, article VIII, of the state constitution. The city, however, in compliance with § 35, chapter 130, Laws of 1917, p. 549 (Rem. Rev. Stat., § 4441, P.C. § 1945-88), levied taxes annually to meet the obligation, until 1930. Beginning with that year, the city has failed to provide for payment of installments due under the assessment, as required under that section of the act.

The plaintiff, a holder of bonds of the drainage district, which were issued to raise funds with which to make the improvement, brought this action to compel, by writ of mandate, the mayor and city council of Sunnyside to levy taxes in a sufficient amount to pay the installments of the drainage district assessment against the city accruing in the years 1934 and 1935. From a judgment dismissing the action, plaintiff appeals.

The problem for solution presents two phases: (1) Is the special assessment a debt of the city of Sunnyside; and (2), if so, is it such a debt as is contemplated by § 6, article VIII, of the constitution?

[1] The first phase of the question would seem too plain for argument. The assessment is made by law a general obligation of the city. It is not a lien on any specific property. It is payable only by the exercise of the city's general power of taxation. Chap. 130, Laws of 1917, § 35 (Rem. Rev. Stat., § 4441, P.C. § 1945-88). That it is a debt, is the very purpose of this action to establish.

[2] But is it a debt which comes within the constitutional limitation? The fact that it is an involuntary, rather than a voluntary, obligation does not, of itself, remove the constitutional inhibition. Lake County v. Rollins,130 U.S. 662, 9 S. Ct. 651; Village of Kenmore v. Erie County, 252 N.Y. 437,169 N.E. 637; Eaton v. Mimnaugh, 43 Ore. 465, 73 P. 754;People ex rel. Seeley v. May, 9 Colo. 404, 12 P. 838; Kerrv. State ex rel. Wimbish, 33 Okla. 110, 124 P. 284; FiscalCourt of Franklin County v. Commonwealth, 139 Ky. 307,117 S.W. 301; Barnard Co. v. Knox County, 105 Mo. 382, 16 S.W. 917, 13 A.L.R. 244. In Lake County v. Rollins, supra, the court said:

"Neither can we assent to the position of the court below that there is, as to this case, a difference between indebtedness incurred by contracts of the county and that form of debt denominated ``compulsory obligations.' The compulsion was imposed by the legislature of the State, even if it can be said correctly that the compulsion was to incur debt; and the legislature could no more impose it than the county could voluntarily assume it, as against the disability of a constitutional prohibition."

This court, however, has long been committed to the doctrine that obligations of municipalities incurred in the performance of duties made mandatory by the constitution, or such obligations as are necessary to maintain corporate existence, are not debts within the limitation of § 6, article VIII, of the constitution.Rauch v. Chapman, 16 Wash. 568, 48 P. 253, 58 Am. St. 52, 36 L.R.A. 407; Duryee v. Friars, 18 Wash. 55, 50 P. 583;Farquharson v. Yeargin, 24 Wash. 549, 64 P. 717; Hull v.Ames, 26 Wash. 272, 66 P. 391, 90 Am. St. 743; Gladwin v.Ames, 30 Wash. 608, 71 P. 189; Pilling v. Everett, 67 Wash. 109,120 P. 873; Patterson v. Edmonds, 72 Wash. 88,129 P. 895; State ex rel. Taro v. Everett, 101 Wash. 561,172 P. 752; McCarthy v. Kelso, 129 Wash. 121, 223 P. 151; Rummensv. Evans, 168 Wash. 527, 13 P.2d 26.

[3] What may be considered obligations incurred in the performance of "mandatory duties" and what expenditures may be considered as "necessary to corporate existence" is not always easy to determine, as an examination of the cited cases will show. While the criterion by which the question is to be determined is clear, the character of the obligation depends, in a large measure, upon the circumstances under which it is incurred. For instance, in Farquharson v. Yeargin, supra, it was held that indebtedness incurred for the building of a court house did not fall under the constitutional limitation, because it appeared from the evidence that the town of Republic had been destroyed by fire, and, therefore, it was to be presumed that the erection of the building was necessary to house the government of Ferry county. The court there said:

"While, ordinarily, warrants issued in payment of money expended in building a court house would not fall under the class of compulsory obligations, the conditions existing in Republic at the time of the erection of the court house were such as to bring the warrants for the erection of this particular court house within the rule laid down in Rauch v.Chapman, supra, because it may be fairly inferred that no other building could be had for the purpose owing to the destruction of the town by fire."

The same thought is expressed in Patterson v. Edmonds,supra, where the court had under consideration warrants issued in excess of the city's debt limit for the repair of streets. There the court said:

"It might be that if some part of a street should become dangerous so suddenly as to require immediate attention, it would justify the incurrence of an indebtedness to repair it as a work of necessity; but certainly the injury caused by all ordinary wear and tear, the necessity to repair which can be foreseen for a period of time preceding the point of danger, can be repaired at the cost of property benefited without resorting to this extraordinary remedy."

So, in the instant case, it is not inconceivable that the city of Sunnyside might have been confronted with conditions that would have made the construction of a sewer system imperative in order to protect the health of its inhabitants. In such case, any necessary indebtedness incurred would fall within the rule ofMcCarthy v. Kelso, supra, and would not fall under the ban of the constitutional limitation.

But there is no such necessity shown here. At most, the improvement was in the nature of a convenience to the city of Sunnyside, in that it facilitated the disposal of surface waters and sewage. But that is not sufficient to take the obligation out of the purview of the constitutional limitation. Patterson v.Edmonds, supra; Robb v. Tacoma, 175 Wash. 580, 28 P.2d 327, 91 A.L.R. 1010. What was said in the latter case is peculiarly pertinent here. Involved there was a bond issue that had failed to receive approval of three-fifths of the electors voting on the proposed issue. It was sought, nevertheless, to sustain the issue on the ground that it was necessary for the protection of public health to construct certain sewers. Disposing of this argument, the court said:

"There is quite a difference between the issuance and enforcement of orders, generally, to abate a nuisance or to prevent the spread of a threatened epidemic, on the one hand, and, on the other, an order compelling a city to install a vast sewage system necessitating a bonded indebtedness of three million dollars.

"Furthermore, we do not think that an emergency, as contemplated by the statute and our decisions, is presented by the pleadings in this case. The condition complained of did not suddenly appear, but had been a recurring topic of discussion for a long time, as appears by the answer. . . . However opportune the time and conditions may be for such project, and however worthy the motives of the city may be, those are matters which can not affect or measure the power of the city or the extent to which it may go in the creation of general indebtedness. We are satisfied that no case of legal emergency is presented, and we therefore hold that the demurrer to the affirmative defense was properly sustained."

The assessment in the instant case, being an obligation which was not incurred under mandatory constitutional authority, and not being an obligation necessary to corporate existence, falls within the constitutional limitation of § 6, article VIII.

Judgment affirmed.

MILLARD, C.J., BEALS, TOLMAN, HOLCOMB, MAIN, MITCHELL, and STEINERT, JJ., concur.