Spear v. City of Bremerton 95 Wash. 264

95 Wash. 264

[No. 13993.

En Banc.

March 12, 1917.]

Jesse W. Spear et al., Appellants, v. The City of Bremerton, Respondent, Kitsap Hotel Investment Company et al., Interveners.1

Appeal — Decision—Review After Remand — Jurisdiction. Where, Upon exceptions and appeal from a judgment going beyond the directions of a remittitur, no objection is made to the method employed to review the form and substance of the judgment, the supreme court will treat the appeal as a proceeding in the same case and as sufficient to reinvest the court with jurisdiction.

Statutes — Curative Acts — Validity of Municipal Bonds — Power of Legislature. A curative act designed to correct objections to procedure and validate municipal bonds is a declaration of legislative policy within its jurisdiction, where the act was passed during the pendency of the action to test the validity of the bonds.

Municipal Corporations — Public Works — Sale of Bonds — Interest — Discount. A bond issue to pay for a water works system cannot be sold at a discount of five per cent, ostensibly to cover all commissions, attorney’s fees and expenses, but which was in fact a bonus for the benefit of the buyer increasing the rate of interest which the bonds were to bear.

Appeal from a judgment of the superior court for Kitsap county, Dykeman, J., entered November 22, 1916, upon remittitur from the supreme court, in an action for equitable relief.

Remanded with directions.

A. C. Durham and Robinson & Robinson, for appellants.

James W. Bryan, Ewing D. Colvin, and Marion Garland, for respondent.

Per Curiam. —

The remittitur in this case went down on November 21, 1916. The court entered a judgment upon the remittitur, to which exceptions were taken and from which an appeal is now prosecuted. The parties have stipulated that the case may be decided upon the transcript of the judgment and the brief of appellant. Both sides join *265in a request for a prompt decision because, as we are informed by counsel, of certain public considerations which are not a part of the record on either appeal.

No objection being made to the method employed to review the form and substance of the judgment, which, it is asserted, goes beyond the direction of this court, we shall treat the present appeal as a proceeding in the same case, and as sufficient to reinvest this court with jurisdiction.

After the petition for rehearing had been denied (90 Wash. 507, 156 Pac. 825; 93 Wash. 699, 160 Pac. 946), the legislature passed a curative act designed to cure the objections theretofore existing to the bonds to be issued by the city of Bremerton and to validate the issue. Laws of 1917, p. 38, ch. 12. This act was passed as an emergent measure and has been approved by the governor.

. The procedure, as well as the object sought to be attained, being impliedly if not actually assented to by counsel for respondents on this appeal, we shall treat the law of 1917 as a declaration of legislative policy upon a subject within the range of its power and to be sustained as the governing law, under the authority of Ettor v. Tacoma, 57 Wash. 50, 106 Pac. 478, 107 Pac. 1061, and Haynes v. Seattle, 87 Wash. 375, 151 Pac. 789.

The case will, therefore,, be remanded with directions to reenter a judgment consistent with the judgment from which the first appeal was taken, and consistent with the law of 1917 (Laws 1917, p. 38, ch. 12).

It is not to be understood that we approve the original judgment in so far as it sanctioned the attempt of the city of Bremerton to pay John E. Price & Company or any purchaser a sum in lieu of interest under the guise or subterfuge of a commission, attorneys’ fees, or other pretense. In that respect, the judgment from which this appeal is taken will be affirmed.

Remanded with directions to enter a judgment accordingly.

Spear v. City of Bremerton
95 Wash. 264

Case Details

Name
Spear v. City of Bremerton
Decision Date
Mar 12, 1917
Citations

95 Wash. 264

Jurisdiction
Washington
Court
Washington Supreme Court

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