nothing prevents a town from creating a municipal electric utility in an area already served by a public utility district
How later courts described this case
- nothing prevents a town from creating a municipal electric utility in an area already served by a public utility district
- “‘In the erection and operation of gas works, electric light plants, waterworks and the like, . . . a municipal corporation acts as a business concern.’” (emphasis added) (quoting 1 OSCAR L. POND, A TREATISE ON THE LAW OF PUBLIC UTILITIES § 5, at 14-15 (4th ed. 1932))
Written by the judges who cited it.
The opinion
Finley, J.
(specially concurring) — I concur in the result, but disagree with the views of the majority in the following respects:
*235 It appears to me that the factual situation involved in the instant case was not anticipated by the Washington legislature. Consequently, existing statutes do not solve this problem. Its solution, therefore, would depend upon the application of case law and precedent developed and established through judicial decisions. The applicable rule, sometimes characterized as an equitable doctrine or principle, appears to be well stated in Bayha v. Public Utility Dist. No. 1, 2 Wn. (2d) 85, 97 P. (2d) 614 :
“Two municipal corporations, having concurrent jurisdiction and having in part the same granted powers, cannot exercise such identical powers, at the same time, in the same territory.” (p. 103.)
See, also, Royer v. Public Utility Dist. No. 1, 186 Wash. 142 , 56 P. (2d) 1302 .
Realistically, the concept at the basis of the foregoing rule seems to be founded upon the working practicable principle, tersely stated, that, in a conflict of jurisdiction between two municipal corporations, the one first in time is first in right. Taylor v. City of Fort Wayne, 47 Ind. 274 ; Birmingham School Dist. v. School Dist. No. 2, 318 Mich. 363 , 28 N. W. (2d) 265 .
It is recognized that a distinction is frequently made between proprietary and governmental functions of a municipal corporation, and that the distinction has been held to be controlling in numerous situations. I cannot agree with the majority that the distinction between proprietary and governmental functions qualifies, in any way, in the instant case, the application of the equitable rule quoted above. The rule, as set forth in Bayha v. Public Utility Dist. No. 1, supra, seems to have been followed in the following cases: Priest v. James, 125 Ore. 72 , 265 Pac. 1092 —conflicting port districts; Independent Dist. of Sheldon v. Board of Supervisors of Sioux County, 51 Iowa 658 , 2 N. W. 590 , and Trumbull County Board of Education v. State ex rel. Van Wye, 122 Ohio St. 247 , 171 N. E. 241 — conflicting school districts; People ex rel. Bancroft v. Lease, 248 Ill. 187 , 93 N. E. 783 — conflicting drainage districts; In re Sani *236 tary Board of East Fruitvale Sanitary Dist., 158 Cal. 453 , 111 Pac. 368 — conflicting sanitary districts; Allied Amusement Co. v. Bryam, 201 Cal. 316 , 256 Pac. 1097 — conflicting improvement districts (streets).