The finding of fact by the trial court upon which the majority rests its judgment is duplicitous and inconsistent. That finding, quoted in extenso in the original opinion and in part quoted in the supplemental per curiam opinion, expressly finds (1) that there was an actual payment of the old bonds in the full amount authorized by the voters before the new bonds authorized by the city council were issued. If that part of the finding be true, then the debt authorized by the voters was paid and extinguished, and there was no debt in existence authorized by the voters to be refunded by anyone or at all.
Notwithstanding the finding of such actual payment which extinguished the debt, the finding proceeds (2) to recite the enactment of a refunding ordinance and the issuance of new refunding bonds by the city council, and the finding continues:
"Therefore, inasmuch as the refunding bond indebtedness is a mere continuation of the preceding indebtedness, which was authorized by a vote of the electorate *Page 378 in 1907, we have placed this refunding bond issue of $400,000, authorized by Ordinance C5165 within the same, viz., the 3 1/2% classification, which includes all indebtedness authorized by popular vote."
Since, by the supplemental per curiam opinion, the majority seems to recognize the force of our previous holdings in Stateex rel. Atkinson v. Ross, 43 Wash. 290, 86 P. 575, and Stateex rel. Jones v. McGraw, 12 Wash. 541, 41 P. 893, and seeks to distinguish and not to overrule those cases, I am less concerned with the results here, but on principle and as a matter of ordinary logic, it seems to me self-evident that we ought not directly or indirectly to approve the inconsistency embodied in the finding of the trial court or the erroneous conclusion drawn therefrom.
Manifestly, when the four hundred thousand dollars in bonds became due, the voters who had authorized the issue should have been given the opportunity to authorize or refuse to authorize the refunding of that issue. If the debt could not be contracted in the first place without a popular vote, then it should follow that it could only be refunded by a popular vote. If, however, the first part of the trial court's finding be accepted as controlling and if the bond issue was actually paid and retired, the authorization given by the voters in 1907 ended with the retirement of the bonds which their vote had sanctioned; and the city council could only act with reference to a refunding issue of bonds within the 1 1/2% classification as authorized by the constitution.
Therefore, when, as shown by the second part of the trial court's finding, the city council passed ordinance C5165, it made the debt of four hundred thousand dollars a debt within the 1 1/2% classification and the trial *Page 379 court was in error when it scheduled the four hundred thousand dollars of bonds authorized by the city council as being within the 3 1/2% classification.
BLAKE, J., concurs with TOLMAN, J.