(dissenting) — The questions presented by the appeal in case No. 35265 are: (1) When a proposed plan to issue bonds for a specified purpose which involves an excess levy of taxes, has been submitted to the electors of a taxing district in accordance with the requirements of amendment 17 of the state constitution, and has gained the approval by the percentage of votes designated in that amendment, can the plan thus submitted and approved be altered in a material aspect without the assent of the electors; and (2) does the substitution of a new concert-convention hall, with a seating capacity of approximately 3,100 to be built within the shell of an existing auditorium, constitute a material alteration of a plan which called for the construction of a new concert-convention hall with a seating capacity of about 3,500 and the modernization and *794remodeling of the existing auditorium, the seating capacity of which is 6,500?
It is well settled that municipal taxes levied for one purpose ordinarily cannot be applied by the municipality to another purpose. Thompson v. Pierce County, 113 Wash. 237, 193 Pac. 706; Haraway v. Zambie, 203 Ark. 550, 157 S. W. (2d) 504; McFarland v. Town of Bourbonnais, 339 Ill. App. 328, 89 N. E. (2d) 849; Davis v. Laughlin, 147 Iowa 478, 124 N. W. 876; Chamberlain v. City of Tampa, 40 Fla. 74, 23 So. 572. 4 Cooley, Taxation (4th ed.) 3572, § 1819; 16 McQuillin, Municipal Corporations (3d ed.), 470-71, § 44.186; 64 C. J. S. § 2119.
It is equally well established that the proceeds of bonds may be used for the purpose authorized by vote, but not for a different purpose, nor for a more limited purpose involving a system radically different from that contemplated by the voters. Thompson v. Pierce County, supra; State ex rel. Traeger v. Carleton, 242 Minn. 296, 64 N. W. (2d) 776; Middlesex Concrete Products & Excavating Corp. v. Borough of Carteret, 28 N. J. 208, 145 A. (2d) 786; McNichols v. City & County of Denver, 120 Colo. 380, 209 P. (2d) 910; Shainwold v. Portland, 153 Ore. 167, 55 P. (2d) 1151; Lewis v. City of Fort Worth, 126 Tex. 458, 89 S. W. (2d) 975; Texsan Service Co. v. City of Nixon, (Tex. Civ. App.) 158 S. W. (2d) 88; 64 C. J. S. 551, § 1929. In accord, although dealing with revenue bonds (as opposed to general obligation bonds), is Hayes v. Seattle, 120 Wash. 372, 207 Pac. 607.
This rule applies, even though, as in this case, it is impossible to carry out the project as it was approved by the electors. State ex rel. Traeger v. Carleton, supra.
The appropriateness and justice of the rule, as applied to the facts of this case, are inescapable. The framers of our constitution placed a limit on the amount of tax which a taxing district could levy against the property of the owners therein, without the express authorization of the electors. Amendment 17 provides that such authorization can only be obtained by a favorable vote of three fifths of the electors casting ballots in an election at which the total *795number of ballots cast is not less than forty per cent of the total cast at the last preceding general election. Whether an excess levy can be imposed is a matter which the electorate must decide, acting through a specified majority, and if they authorize such a levy for a specific purpose, the taxing body (in this case the city council) has no authority to use the proceeds for any other purpose without the consent of the electors.
The defendants point to statutory provisions giving the city power to acquire sites for, and to construct thereon, municipal auditoriums and other public buildings; and they argue that it must necessarily follow that they have discretion in these matters. This same argument was made in Hayes v. Seattle, supra, and was thus aptly answered:
“Appellant quotes from a number of our cases where we have held that we will not, in the absence of fraud or arbitrary action, review proceedings taken by municipal authorities under a discretion lawfully given. We are not here reviewing a discretionary action which the city council has a right to exercise; we are holding that it has no power to exercise the discretion it is here undertaking to exercise— it is not a question of abuse of discretion, but one of power.”
Of course the governing body of the city has discretion in the selection of plans and design and in the construction of an auditorium or concert hall if the funds to be used are derived from ordinary revenues within the forty-mill limit; but when, in order to build such structures, it must ask the people for authority to levy an excess tax for the purpose, it has no discretion to substantially change the project which they have approved. In accord is State ex rel. Traeger v. Carleton, supra.
The defendants say that it was not necessary to submit to the voters a plan as detailed as that which was submitted, and that if the ballot title had been couched in broader terms, they would have had authority to do that which they now seek to do. This may be true, but this court cannot assume that such a broad authorization would have been given by the voters; and in any event, the authorization which they actually gave was specific.
*796The trial court found that the proposed change was substantial and constituted a material deviation from the plan approved by the voters. I think the correctness of this determination cannot be seriously questioned. The proposal submitted to the voters and approved by them called for the construction of a new concert-convention hall and the remodeling and modernization of the existing auditorium. Under the proposed change, the auditorium would be converted into a concert and convention hall, and the existing auditorium facilities would be destroyed. A vast reduction in seating capacity would be effected. This is not a minor alteration or a change of detail which the city may make without express, authorization, but is an entirely different project — one which the electors who approved the bond issue and tax levy may not approve at all.
I am convinced that the defendants had no power to use any part of the bond fund for the construction of a concert-convention hall within the shell of the existing auditorium unless they obtained the consent of the electorate.
Now comes the question presented in the second case (No. 35603): Can a substantial change in the use approved by the voters be authorized by a simple majority of those voting in an election at which the total ballots cast are less than forty per cent of the number cast at the last preceding general election; in other words, does the mandate of amendment 17 apply when a change in authorization is sought? The majority opinion holds that it does not. I am unable to agree.
The conclusion of the majority is that since this election did not involve the actual levying of an excess millage tax, a simple majority of the votes cast was sufficient. It cites the referendum provisions of the city charter, and states that these provisions are controlling. Art. IV, § 1-A, provides that the legislative powers of the city shall be vested in a mayor and city council, and further provides generally for the initiative and referendum. Section 1-H provides for the referendum as to any ordinance which has passed the city council and mayor “acting in their usual prescribed manner as the ordinary legislative authority of the city.”
*797These provisions of the charter, of course, provide for the enactment of local legislation which is within the power of the legislative hoáy. If the position of the majority is correct, a measure which the mayor and council have no power to enact (in this instance, an ordinance amending the voters’ authorization to levy an excess tax) may be brought within that power by the simple expedient of applying to the election the requirements of the charter referendum instead of those imposed by amendment 17 of the constitution. The fallacy in this is that the charter does not give to the voters the power to enact ordinances, which are beyond the power of the council to enact in the first instance.
If the referendum provisions of the charter govern, and only a majority of votes cast in the election are required, then it must be held that the people have the power, under the charter, to enact ordinances which a mayor and council cannot enact, and nowhere in the charter or in law do we find such a provision. Amendment 17 gives such a power, but it also prescribes the percentage of votes which must be cast in order to exercise that power. An ordinance can be amended only by the body which has the power to pass it. 62 C. J. S. 832, § 434 b.
While this court has not had before it the precise question presented in this case, it has consistently held that, under charter provisions for reference of a measure to the voters, if the referred measure is. adopted by the voters, it cannot subsequently be altered, amended, or repealed by any public body, but can be changed or altered only by no less authority than that which called it into being. State ex rel. Ausburn v. Seattle, 190 Wash. 222, 67 P. (2d) 913, 111 A. L. R. 418; State ex rel. Leo v. Tacoma, 184 Wash. 160, 49 P. (2d) 1113; State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P. (2d) 602; State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P. (2d) 1020, 33 P. (2d) 905; Stetson v. Seattle, 74 Wash. 606, 134 Pac. 494.
In this case, that authority is three fifths of the electors voting in an election in which the total number of ballots cast is not less than forty percentum of those cast in the last preceding general election.
*798It is true, as stated by the majority, that there is no actual levy of taxes involved in the decision to change the use of the bond fund. I do not think, however, that this fact renders the constitutional provision inapplicable. If the rule that a change cannot be made without the authorization of the voters, means anything at all, it means that the question must be referred back to those who authorized the levy, and their approval must be voiced with the same authority. While amendment 17 does not expressly require that an amendment to a special levy be approved in the same manner as the original levy, this requirement is found in the rule of law and is consistent with the dictates and in harmony with the spirit of that provision of the constitution.
I would affirm the judgment in case No. 35265, and reverse it in case No. 35603.
Hill, Ott, and Foster, JJ., concur with Rosellini, J.November 18, 1960. Petition for rehearing denied.