Municipal League of Bremerton v. Tacoma , 166 Wash. 82 ( 1931 )

I dissent.

"It is the office of courts of justice to decide the rights of persons and of property, when the persons interested cannot adjust them by agreement between themselves, — and to do this upon the full hearing of both parties. And any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended . . ." Lord v. Veazie, 49 U.S. 251.

In my opinion, a study of the pleadings fails to indicate that the three plaintiffs have any pecuniary interest adversely affected by the acts complained of. This case presents merely a colorable dispute, and represents an attempt on the part of appellants to obtain the court's opinion upon a question where there is no genuine disagreement between plaintiffs and defendants.

Appellants' brief generally gives evidence that the controversy is only colorable. Counsel for appellants proceeds to deride that former decision of this court (Farwell v. Seattle,43 Wash. 141, 86 P. 217) which, as a real party plaintiff to this action, he would in good faith be required to support. It is quite apparent the real purpose of appellants' brief is to persuade this court to overrule rather than to sustain the Farwell case, and thereby accomplish the result which was attempted, but not achieved, by the proponents of twenty-two bills introduced in the legislature since the Farwell case, authorizing, in one form or another, the sale of electricity by municipal corporations outside their corporate limits.

Since the decision in the Farwell case, one initiative measure and one referendum act having the same object have been submitted to the people and defeated at the polls. To fail to recognize this case as a fictitious lawsuit and order its dismissal as such, in my opinion, is to inspire interested parties to attempt to accomplish in the courts what they could not achieve in the legislature or by the vote of the people, and to encourage a method of effecting legislation neither contemplated nor countenanced by our constitution.