The opinion
Tolman, J.
(dissenting) — -Without committing myself as to the other points involved, in my opinion one of the reasons advanced by the appellant to demonstrate that the ordinance is invalid is unanswerable. That reason is that the ordinance, by setting aside the
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proceeds of. the bond issue to pay the amounts due to policemen and firemen for services heretofore rendered, thereby creates an unlawful preference, and places these particular employees in a class by themselves, to be paid in spot cash as soon as the bonds are sold; while all other employees of the city and all of its other general creditors have accepted and must accept warrants, and must await their turn as warrants on the general fund are called in the order of their issuance.
Section 4118, Rem. Rev. Stat. [P. C. § 5471], among other things, provides:
“Whenever the treasurer of any county, city, town, or other municipality shall have in his hands, as such treasurer, the sum of five hundred dollars belonging to any fund upon which warrants are outstanding, it shall be his duty to make a call for such warrants to that amount in the order of their issue, . . . ”
In the case of
Munson v. Mudgett,
15 Wash. 321 , 46 Pac. 256 , this act was upheld, and in
State ex rel. Thurston County v. Department of Labor and Industries,
167 Wash. 629 , 9 P. (2d) 1085 , again upholding the statute, it was said:
“It is elementary that the duties and powers of a municipal corporation relating to the payment or disbursement of public funds are wholly regulated by statute. Under our statute, a municipal corporation is required to disburse public funds and pay its obligations by warrant. It can pay in no other manner. Nor can it prefer one warrant over another, but is required to pay them serially and in the order of their issuance.”
As appears from the majority opinion and from the case of
State ex rel. Knez v. Seattle,
176 Wash. 283 , 28 P. (2d) 1020 , 33 P. (2d) 905 , warrants should have been issued to these policemen and firemen at the time the services were rendered; and had those employees
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taken the proper steps, warrants would then have been issued to them. Under the statute from which I have quoted, those warrants would have been called in the order of their issuance. Possibly even now, warrants might be issued
nunc pro tunc
as of the date when the services were
rendered;
but even so, under the statute those warrants would still be payable along with all other warrants on the general fund in the order of their issuance.
It will not do to say that the services of policemen and firemen are any more a necessity than the services of other employees of the city, such as those concerned with the city health and sanitation, the maintaining of the streets and sidewalks, and other like activities.
From- the beginning of statehood, municipal employees have all alike been paid, without preference one over the other, out of the general fund. I know of no statute law which authorizes any other or different method of payment; and to permit the city to segregate those having claims against the general fund into classes and to prefer one class over any other, might result in very grave injustice and a very deplorable situation. The statute, by its terms, forbids any such preference. The municipalities of the state are the creatures of the legislature, and they must obey its mandate.
It may be, as found by the trial court, that the issuance of warrants for the back pay due these policemen and firemen would demoralize the city’s finances and endanger public safety, but the same relief could be obtained by providing for a bond issue of the same amount to replenish the general fund and to retire outstanding warrants against it in the order of their issuance, leaving the city’s finances in exactly as good condition as if their present plan were consummated, while the result would be to retire old warrants in the
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order of their issuance, placing all employees of the city and all of its general creditors on an equality. It has been said that equality is equity, and it seems certain that the city’s affairs will he better administered if all are treated equally and no creditor is preferred over another.
It is true, as stated by the majority, that the appel--lant is not a creditor; but he is a taxpayer, and as such, he has a legal right to maintain an action to enjoin the unlawful disbursement of the public funds to which he is a contributor. Since the statute forbids any preference, there is here an attempt to unlawfully disburse eight hundred and fifty thousand dollars, which concerns every taxpayer, and therefore, in my opinion, the judgment should be reversed, with directions to enter a judgment enjoining the city from issuing the bonds for the purpose designated by the ordinance.
Blake, J., concurs with Tolman, J.