Opinion
No. 34608.
June 16, 1958.
MUNICIPAL CORPORATIONS — PROPERTY — SALE OR OTHER DISPOSITION — RIGHT OF TAXPAYER TO APPEAL. A resident and taxpayer of the city of Bellingham had no right to appeal from a judgment of a trial court, entered under the provisions of Laws of 1953, chapter 133, § 1 (cf. RCW 39.33.010), authorizing the transfer of certain city-owned land to Whatcom county, since the statute provides no right of appeal and this right is purely statutory in noncriminal cases.
DECLARATORY JUDGMENT — PROCEEDINGS — JUDGMENT AND REVIEW — RIGHT OF APPEAL. An appeal by a resident and taxpayer of the city of Bellingham from a judgment authorizing the transfer of certain city-owned land to Whatcom county was not authorized under the declaratory judgment act (RCW 7.24), where there was a failure to comply with the jurisdictional requirement of RCW 7.24.110 that the attorney general be served, it was neither alleged nor proved that there would be any general damage to the taxpayers, nor was any attempt made to prove how the transfer would adversely affect the appellant either as a taxpayer or otherwise.
SAME. In such a proceeding, an argument by the taxpayer that he would be damaged by the transfer of land because he would be taxed to repay county bonds issued to construct a health district building thereon, held to be insufficient to sustain the action.
MUNICIPAL CORPORATIONS — PROCEEDINGS OF CITY COUNCIL — ORDINANCES — RIGHT TO CHALLENGE. The mere fact that a resident taxpayer and citizen disagrees with the discretionary decision of a city council provides no basis for a suit challenging the validity of the council's action.
[2, 4] See 174 A.L.R. 549; 37 Am. Jur. 799.
Appeal from a judgment of the superior court for Whatcom county, No. 35794, Dawson, J., entered September 13, 1957, upon findings, granting a petition by a city to transfer certain real estate. Appeal dismissed.
Walter F. Fisher, for appellant.
Charles R. Olson, for respondent.
The governing bodies of the city of Bellingham and the county of Whatcom decided to construct a county-city health district building on property now owned by the city of Bellingham. In order to qualify for Federal aid in the financing of the structure, it was determined that title to the property had to be transferred to Whatcom county. The city council passed an ordinance authorizing the transfer, and the city and county entered into a contract.
Pursuant to Laws of 1953, chapter 133, § 1, pp. 253, 254 ( cf. RCW 39.33.010), the city filed a petition in the superior court for a determination of the factual question — whether the land involved was (1) necessary to the needs of Whatcom county, or (2) surplus or excess to the future foreseeable needs of the city of Bellingham.
Raymond F. Chamberlain appeared at the hearing; he alleged that he was a resident taxpayer and a citizen of Bellingham, and he demurred to the petition. The trial court overruled the demurrer. Chamberlain then filed an answer, challenging the petition on its merits and alleging that RCW 39.33.010 is unconstitutional.
After the hearing, the trial court found the land in question to be surplus and excess to the future foreseeable needs of the city of Bellingham. It held RCW 39.33.010 to be constitutional and authorized transfer of the land on such terms as would be mutually agreeable to the city and county. Mr. Chamberlain has appealed.
In this court, respondent city has challenged appellant's standing to sue in this action. We think the challenge is well taken.
[1] RCW 39.33 sets up no procedure for anyone to controvert the petition by demurrer or answer. Apparently, the statute only contemplates a hearing at which all interested parties can express an opinion and introduce pertinent evidence for or against the granting of the petition without the necessity of intervention by formal pleadings. We expressly withhold opinion on the constitutionality of RCW 39.33.010 until it is properly presented. The statute provides no right of appeal from the judgment of the superior court. Since the right of appeal is purely statutory in noncriminal actions, appellant has no right of appeal unless he qualifies under some other section of the code. All-Rite Contracting Co. v. Omey (1947), 27 Wn.2d 898, 181 P.2d 636; In re a Minor (1951), 39 Wn.2d 744, 238 P.2d 914.
[2] The only other statute brought to our attention as possible authorization for this appeal is the declaratory judgment act (RCW 7.24). Appellant has not complied with that act, however, in that he has not served the attorney general, as required by RCW 7.24.110. This requirement is jurisdictional. Parr v. Seattle (1938), 197 Wn. 53, 84 P.2d 375. Further, he has alleged no grounds which would entitle him to bring a declaratory judgment action. He neither alleged nor proved any general damage to the taxpayers; in fact, he made no attempt to prove how the transfer would adversely affect him, either as a taxpayer or otherwise. See Heisey v. Port of Tacoma (1940), 4 Wn.2d 76, 102 P.2d 258.
[3, 4] The only possibility of damage called to our attention in oral argument is the fact that he will be taxed to repay county bonds issued to finance the construction of the health district building. This is not sufficient, since he made no attempt to show that the county has no authority to undertake this project or to issue bonds therefor — nor did he attempt to show that the county could or would not buy other land and continue with the project, if it should not be able to obtain the land in question. In fact, the record reveals that appellant was attempting to establish only that other city land would have been more suitable for the health district building. The mere fact that a resident taxpayer and citizen disagrees with a discretionary decision of the city council provides no basis for a suit challenging the validity of the council's action.
The appeal should be dismissed. It is so ordered.
MALLERY, DONWORTH, and HUNTER, JJ., concur.
HILL, C.J. concurs in the result.
September 10, 1958. Petition for rehearing denied.