802041MAJ
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80204-1 - Lane v. City of Seattle File Date 10/16/2008
Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 80204-1
Title of Case: Lane v. City of Seattle
File Date: 10/16/2008
Oral Argument Date: 02/28/2008

SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
Docket No: 05-2-07351-9
Judgment or order under review
Date filed: 05/30/2007
Judge signing: Honorable Michael S Spearman

JUSTICES
--------
Gerry L. AlexanderSigned Majority
Charles W. JohnsonSigned Majority
Barbara A. MadsenSigned Majority
Richard B. SandersSigned Majority
Tom ChambersSigned Majority
Susan OwensSigned Majority
Mary E. FairhurstSigned Majority
James M. JohnsonMajority Author
Debra L. StephensSigned Majority

COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
 Michael Paul Ruark  
 Attorney at Law
 Po Box 90016
 Bellevue, WA, 98009-9016

 Brian Richard Paige  
 Itron Inc
 2111 N Molter Rd
 Liberty Lake, WA, 99019-9469

Counsel for Respondent(s)
 Gregory Colin Narver  
 City Hall
 600 Fourth Avenue, 4th Floor
 P.o. Box 94769
 Seattle, WA, 98124

 William Howard Patton  
 Foster Pepper PLLC
 1111 3rd Ave Ste 3400
 Seattle, WA, 98101-3299

 Suzanne Lieberman Smith  
 Seattle City Attorneys Office
 Po Box 94769
 Seattle, WA, 98124-4769

 Kinnon William Williams  
 Williams & Williams, PSC
 18806 Bothell Way Ne
 Bothell, WA, 98011-1933

 Joseph Halder Marshall  
 Williams & Williams PSC
 18806 Bothell Way Ne
 Bothell, WA, 98011-1933

 Ian Richard Sievers  
 City of Shoreline Attorney
 17544 Midvale Ave N
 Shoreline, WA, 98133-4921

 Margaret A. Pahl  
 Office of the Prosecuting Attorney
 516 3rd Ave Rm W400
 Seattle, WA, 98104-2385

 Howard Phillip Schneiderman  
 Office of the Prosecuting Attorney
 516 3rd Ave Rm W400
 Seattle, WA, 98104-2385

 William E. Blakney  
 King Co Admin Bldg
 500 4th Ave Ste 900
 Seattle, WA, 98104-2316

Counsel for Respondent/Cross-Appellant
 David Florian Jurca  
 Helsell Fetterman LLP
 1001 4th Ave Ste 4200
 Seattle, WA, 98154-1154

 Jennifer Suzanne Divine  
 Helsell Fetterman LLP
 1001 4th Ave Ste 4200
 Seattle, WA, 98154-1154

 Connie K. Haslam  
 Helsell Fetterman LLP
 1001 4th Ave Ste 4200
 Seattle, WA, 98154-1154

Amicus Curiae on behalf of Washington Fire Commissioners Association
 Brian K. Snure  
 Snure Law Office PSC
 612 S 227th St
 Des Moines, WA, 98198-6826
			

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

No. 80204-1

ARTHUR T. LANE, KENNETH                            )
GOROHOFF and WALTER L.                             )
WILLIAMS, individually and on behalf of            )             No. 80204-1
the class of all persons similarly situated,       )
                                                   )                En Banc
       Respondents/Cross-Appellants,               )
                                                   )
                  v.                               )       Filed October 16, 2008
                                                   )
THE CITY OF SEATTLE,                               )
                                                   )
       Respondent/Cross-Respondent,                )
                                                   )
KING COUNTY FIRE DISTRICT NO. 2;                   )
KING COUNTY FIRE DISTRICT NO. 4                    )
(a.k.a. Shoreline Fire Department);                )
NORTH HIGHLINE FIRE DISTRICT                       )
NO. 11; KING COUNTY FIRE                           )
DISTRICT NO. 16 (a.k.a. Northshore Fire  )
Department); KING COUNTY FIRE                      )
DISTRICT NO. 20; THE CITY OF                       )
SHORELINE, a Washington municipal                  )
corporation; and KING COUNTY, a                    )
Washington municipal corporation,                  )
                                                   )
       Respondents,                                )
                                                   )
                                                   )
THE CITY OF BURIEN, a Washington                   )
municipal corporation; THE CITY OF                 )
LAKE FOREST PARK, a Washington                     )
municipal corporation,                             )
                                                   )
       Appellants.                                 )
                                                   )
                                                   )

       J.M. JOHNSON, J.?In this 
                                            2

No. 80204-1

case we must decide who will pay for fire hydrants in the city of Seattle and 

its suburbs. Seattle Public Utility (SPU) used to pay for them, passing the

cost along to its ratepayers.  The ratepayers object and want Seattle to foot 

the bill.  If Seattle has to pay for its hydrants, it wants Lake Forest Park to 

pay for the hydrants in Lake Forest Park.  Lake Forest Park, in turn, wants 

fire districts in Lake Forest Park to pay.  The fire districts want someone, 

anyone, else to pay.  On top of all that, the ratepayers want interest on 

improper past hydrant payments they recover and want Seattle?s new tax on 

SPU declared illegal.  Finally, the fire districts claim they are no longer even 

parties to the litigation.  

       We affirm the trial court on most issues.  The court correctly held that 

providing fire hydrants is a government responsibility for which a government 

must pay, that Seattle?s new tax on SPU is constitutional, and that 

municipality Lake Forest Park must pay for hydrants within its boundary.  

The trial court erred only when it failed to give the claiming ratepayers the 

statutory interest rate on the invalid hydrant fees.  

                                            I

       For years, SPU paid for hydrants by charging its water ratepayers a flat 

                                            3

No. 80204-1

hydrant fee added to their water charges.  In 2003, this court held that Seattle 

City Light could not charge its ratepayers for streetlights.  Providing 

streetlights is a government function, and the court held that a municipal

government must pay out of the city?s general fund.  Okeson v. City of 

Seattle, 150 Wn.2d 540, 78 P.3d 1279 (2003).  Recognizing the legal 

equivalence between hydrants and streetlights expressed in that decision (and 

argued by the city), Seattle had SPU stop charging ratepayers for hydrants.  

Instead, Seattle began to pay for the hydrants out of its general fund.  To 

make up the cost, Seattle raised taxes on SPU, which led SPU to raise rates 

on water ratepayers to make up the difference. 

       SPU also provides local hydrants to areas outside the city of Seattle

and concluded that those municipal governments should pay their share.  SPU 

sent a bill for hydrants to Lake Forest Park, Burien, and to local fire districts, 

all of which refused to pay.  SPU then sued Lake Forest Park and Burien for 

payment and later joined the fire districts.

       Meanwhile, a class made up of ratepayers (?Lane et al.,? as 

representatives, hereinafter ?Lane?) sued SPU for hydrant payments made by 

ratepayers for the preceding three years.  The statute of limitations limits that

                                            4

No. 80204-1

claim to three years.  RCW 4.16.080(6).  Lane also sued Seattle to enjoin the 

newly raised city taxes on SPU, which had resulted in SPU?s raising its rates 

on ratepayers.

       After a lengthy pretrial process, each party moved for summary 

judgment.  The trial judge held (1) SPU could not charge ratepayers to pay 

for hydrants; (2) Seattle?s tax on SPU was valid; (3) SPU had to pay back the 

Lane ratepayers, but only at one percent interest; (4) Lake Forest Park and 

Burien had to pay Seattle for their share of the hydrant costs; and (5) the fire 

districts had no obligation to pay.  Each of these rulings has been challenged.  

We granted direct review.

       After review, but before oral argument, Burien decided it had spent too 

much money litigating and withdrew.  Thus, Burien was the only party 

originally stating a claim against the fire districts.  Without an opposing party 

appealing their judgment, the fire districts are no longer parties, and we do 

not reach the issue between Burien and the fire districts. The remaining 

issues are resolved below.

                                           II

A.     SPU Cannot Charge Ratepayers for Hydrants, which Are a General 
       Government Responsibility

                                            5

No. 80204-1

       ?No tax shall be levied except in pursuance of law; and every law 

imposing a tax shall state distinctly the object of the same to which only it 

shall be applied,? Wash. Const. art. VII,  5.  If providing hydrants is a 

government function, and if charging ratepayers for those hydrants is a tax,

not a fee, the charge violates this part of the constitution. Seattle imposed a 

?charge? rather than a tax, which it was not authorized by law to impose.

       We treat governments differently if they are acting as governments or 

as businesses.  Okeson, 150 Wn.2d at 549.  We review most government 

decisions to determine whether they had a rational basis and occasionally use 

this standard to strike down a government decision.  E.g., Associated 

Grocers, Inc. v. State, 114 Wn.2d 182, 187-88, 787 P.2d 22 (1990); 

O?Meara v. Wash. State Bd. Against Discrimination, 58 Wn.2d 793, 799, 

365 P.2d 1 (1961); In re Hendrickson, 12 Wn.2d 600, 612, 123 P.2d 322 

(1942).  In contrast, we review business decisions under the business 

judgment rule and infrequently reverse a business decision.  See Scott v. 

Trans-System, Inc., 148 Wn.2d 701, 709, 64 P.3d 1 (2003). We must first 

decide if providing hydrants is a government responsibility or a proprietary

responsibility.

                                            6

No. 80204-1

       It is conceded that Okeson decides that question.  We held that 

streetlights are a government function and strongly suggested that providing 

hydrants is the same. We confirm that holding today.

       The next step is deciding whether charging ratepayers to pay for 

hydrants was a tax or a fee, since a city must be authorized by statute to 

impose a tax but has broader power to impose a fee.  Okeson, 150 Wn.2d at 

550.  We have created a three-factor test to decide whether a charge is a tax 

or a fee; no single factor determines the matter.  Covell v. City of Seattle, 127 

Wn.2d 874, 879, 905 P.2d 324 (1995).  The three factors are the purpose of 

the cost, where the money raised is spent, and whether people pay the cost 

because they use the service.  Id.

       Our decision here directly follows our decision in Okeson.  There, the 

purpose of the cost was to increase revenue for the city and not to regulate 

the installed streetlights, indicating a tax.  Okeson, 150 Wn.2d at 553.  The 

money did go into a streetlight fund, which made it more like a fee.  Id.  But 

ratepayers bore the same streetlight cost no matter how much electricity they 

used, leaning toward tax.  Id. at 554.  Since all citizens may use and benefit 

from lighted areas, we held the charge to be an invalid tax.  Id.

                                            7

No. 80204-1

       Here, the purpose of charging ratepayers a hydrant charge is also to 

increase revenue for the city and not to regulate hydrants or water usage, 

indicating a tax.  The money goes to a hydrant fund, making it more like a 

fee.  But, ratepayers pay the same fixed hydrant cost whether they use

hydrants or not, indicating a tax.  All benefit by having water available to put 

out fires.  Moreover, we had expressly discussed fire hydrants as an example 

of government services in Okeson.  Seattle had argued that the Okeson 

streetlights were just like hydrants, and SPU had always charged ratepayers 

for hydrants.  The hydrant issue was not before us, but the argument of 

Seattle and implication of our decision were clear: for purposes of deciding a 

tax or fee, hydrants are very much like streetlights.  Id. at 552. As in Okeson, 

the charge here is a tax.

       Lake Forest Park tries to distinguish Okeson.  It points out that water 

companies within cities must, by statute, provide hydrants (RCW 80.28.010), 

but no similar law requires electric companies to provide streetlights.  This is 

not determinative.  After all, state law requires police to report accidents

(RCW 46.52.070) and school districts to educate special education children

(RCW 28A.155.040), but these laws do not justify taxing such transactions.

                                            8

No. 80204-1

       Lake Forest Park also claims a relationship between hydrant charges 

and user benefit by pointing out that houses near hydrants may have lower 

insurance rates.  This might be more persuasive if SPU charged a different 

cost based on proximity to hydrants.  The direct benefit of a hydrant system is 

enhanced fire suppression, which is a shared benefit, and the record shows no 

differential.

       Amici also point to three cases where Washington courts upheld 

charges on customers when first connecting to waterworks.  Landmark Dev., 

Inc. v. City of Roy, 138 Wn.2d 561, 980 P.2d 1234 (1999); Hillis Homes, 

Inc. v. Pub. Util. Dist. No. 1, 105 Wn.2d 288, 714 P.2d 1163 (1986); Irvin 

Water Dist. No. 6 v. Jackson P?ship, 109 Wn. App. 113, 34 P.3d 840 (2001).  

These cases are inapposite.  One-time connection fees are different from 

monthly hydrant charges.  Connection fees capture start-up costs for new 

customers, which are costs of the waterlines for water service.  Hydrant fees 

capture the costs of hydrants, which are government costs.  

       Finally, Lake Forest Park says, ?the heights of irony will be scaled if 

SPU can purchase art for its facilities and recover the cost in rates . . . but 

cannot recover the cost of complying with lawful regulations.? Br. of 

                                            9

No. 80204-1

Appellant Lake Forest Park at 9-10.  This makes a mountain out of an irony 

molehill.  The question is not whether there will be art and hydrants, but who 

must pay for them.  Art for public facilities is a business expense (sometimes 

imposed by statute or ordinance).  Hydrants, like streetlights, are a 

government expense for which a government must pay.

       Thus, charges for hydrants are taxes, not fees.  Since ?[n]o tax shall be 

levied except in pursuance of law; and every law imposing a tax shall state 

distinctly the object of the same to which only it shall be applied.? Wash. 

Const. art. VII,  5.  Since Seattle did not declare the charge to be a tax until 

2005 or state a lawful object of a tax or statutory authority, the imposition 

was unconstitutional.  See Okeson, 150 Wn.2d at 556.

B.     Lane Has Standing To Challenge Seattle?s Tax and SPU?s Rate 
       Increases, but Those Increases Are Not Invalid

       Seattle recognized the legal similarity between streetlights and 

hydrants, and so, in 2003, began paying for hydrants out of the general fund.  

To pay, Seattle either had to raise tax revenue or take funds from other 

services.  The city council decided to raise revenue.  It did so by raising the 

tax rate on SPU from 10 to 14 percent.  Since it wholly controls SPU, it had 

SPU make up the difference by raising rates on customers.  This situation has 

                                           10

No. 80204-1

a similar result for nearly every party involved as if SPU just charged 

ratepayers for hydrants, with two exceptions: for residents of other areas, 

their local government will repay the charges; for Seattle ratepayers, the tax 

charge is now subject to referendum or political efforts to change, including 

election of council members opposing the tax.  Lane still objects.  This issue 

raises two subissues: whether Lane has standing and whether the tax is legal.

       1.     Lane Has Standing To Challenge Seattle?s Tax on SPU

       Seattle challenged Lane?s standing to challenge the tax at trial but has 

dropped the argument here.  However, standing is a matter of our jurisdiction.  

Without jurisdiction, we cannot hear a case, even if every party concedes 

standing.  High Tide Seafoods v. State, 106 Wn.2d 695, 702, 725 P.2d 411 
(1986).1

       To have standing, a party must be in a law?s zone of interest and must 

suffer some harm.  Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d 173, 186, 

1 This rule is in flux.  Compare Branson v. Port of Seattle, 152 Wn.2d 862, 879-80 & 
n.10, 101 P.3d 67 (2004) (Chambers, J., concurring) (a case may be heard even if a party 
lacks standing, as long as the issue is one of great public interest and well briefed), with
High Tides, 106 Wn.2d at 702 (unanimously holding, ?[i]f a plaintiff lacks standing to 
bring a suit, courts lack jurisdiction to consider it.?).  This case does not lend itself to 
deciding whether standing is jurisdictional in Washington, since neither party briefed the 
matter.  And in any event, even if we are not required to raise the issue, we certainly have 
the discretion to.  In re Recall of West, 156 Wn.2d 244, 248, 126 P.3d 798 (2006).

                                           11

No. 80204-1

157 P.3d 847 (2007).  Lane obviously has suffered harm; if his argument is 

right, he must pay more in taxes than is legally allowed.  His zone of interest 

argument, though, is on shakier ground because he does not directly pay the 

tax.  After all, he is complaining about Seattle?s tax on the water utility SPU.  

If Lane has standing at all, it is only as a taxpayer interested in making his 

government follow the law.

       Lane points us to RCW 80.04.440, which allows any person harmed by 

a public utility?s unlawful acts to bring suit.  Even though Lane?s challenge is 

to Seattle?s tax on SPU and not to SPU?s illegal acts, he rests on RCW 

7.24.020, allowing for declaratory judgments of laws directly affecting a 

party.  

       The standing issue here was analyzed in our decision in Nelson.  There, 

we held that a car buyer has standing to challenge a tax applied directly to his 

dealer and seller because the buyer ultimately paid the tax.  Nelson, 160 

Wn.2d at 186.  In the same way, the tax on SPU is passed on to Lane 

directly, and so he is within the interest zone of RCW 80.04.440.  He has 

standing to challenge the tax and rate increase.

       2.     Seattle?s Tax and SPU?s Rate Increases Are Constitutional

                                           12

No. 80204-1

       Lane complains that Seattle is frustrating the holding in Okeson.  He 

argues that raising taxes on SPU and passing the increases along to ratepayers 

is just the same as SPU charging ratepayers for hydrants.  The problem with 

the argument is that Okeson did not go so far as Lane would take it.

       We voided the charge in Okeson because Seattle did not adopt the 

charge as a lawfully authorized tax, violating article VII, section 5 of the state 

constitution, and because a tax would have exceeded the six percent statutory 

limit.  Either reason was sufficient to support our holding in its entirety.  

Okeson, 150 Wn.2d at 556-57.  We simply held that if Seattle wanted to 

charge Seattle City Light ratepayers for streetlights, it would have to comply 

with statutes in enacting the tax (with the attendant possibility of a 

referendum, Wash. Const. art. II,  1(b)).  Such tax, if adopted, would be 

subject to the applicable statutes and a six percent total cap.

       Seattle has complied here.  It explicitly said it was taxing SPU, the tax

was properly adopted, and the tax expressly stated it was subject to 

referendum.  Also, the six percent limit referenced in Okeson does not apply 

to taxes on businesses providing water.  RCW 35.21.710; RCW 

82.16.010(4).  Seattle has statutory authority to impose this tax on SPU

                                           13

No. 80204-1

(RCW 35.22.280(32)).

       Lane?s whole argument rests on our constitution?s requirement that 

?[n]o tax shall be levied except in pursuance of law; . . . .?  Wash. Const. art. 

VII,  5.  He argues that imposing a tax with the same effect as SPU?s

charging ratepayers for hydrants is contrary to the law announced in Okeson.  

       This argument fails for the same reason as above.  The law is not that 

Seattle must charge for hydrants to a broad range of taxpayers.  Instead, it is 

simply that cities must have statutory authority to impose taxes and must 

enact them properly as ?taxes.? This tax meets both requirements.  The tax 

and the resulting rate raise are lawful.  

C.     SPU Must Pay the Statutory Interest Rate on Back Payments

       SPU illegally charged ratepayers for hydrant costs before 2005, so it 

had to refund the charges for three years as allowed by the applicable statute 

of limitations.  Lane wants his payments to be with interest; Seattle opposes.  

The trial court gave Lane interest at one percent.  Lane appealed, saying he is 

entitled to more.  Seattle says he is entitled to none (or, at most, one percent). 

       Governments cannot be sued for money without their consent.  

Architectural Woods, Inc. v. State, 92 Wn.2d 521, 526, 598 P.2d 1372 

                                           14

No. 80204-1

(1979).  More to the point, local governments cannot be sued for interest 

without the State?s consent.  Our Lady of Lourdes Hosp. v. Franklin County, 

120 Wn.2d 439, 455-56, 842 P.2d 956 (1993).  But absent sovereign 

immunity, parties must pay 12 percent interest on judicial awards from the 

time of judgment to the time of payment.  RCW 4.56.110(4); RCW 

19.52.020.  They must also pay 12 percent on the time from the injury to the

judgment if the damages are liquidated, that is, if it is ?possible to compute 

the amount with exactness, without reliance on opinion or discretion.?  Prier 

v. Refrigeration Eng?g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968); RCW 

19.52.020.  The damages here are clearly liquidated because they are based 

only on the amounts customers wrongly paid.  So if SPU is not immune from 

judgment, it must pay 12 percent interest on both the pre- and postjudgment 

award.

       Lane offers three reasons why he should be awarded statutory interest 

on his refund payments from SPU, and if he is correct on any of them, he 

receives interest at the judgment rate.  His best argument is that a statute 

waives immunity for claims against government-run utilities, allowing interest 

on part of those claims.

                                           15

No. 80204-1

       RCW 80.04.440 allows people to sue water companies for ?all loss, 

damage or injury? resulting from an illegal act.  On its face, ?all loss?

includes interest.  Depriving a party of money for a time deprives him of its 

productive use during that time.  ?Justice delayed is justice denied? is literally 

true for money.  If a losing party has wrongfully kept another?s money at 12 

percent interest for six years before giving it back, it is the same as taking the 

lost value.  ?All loss, damage or injury? includes interest on money 

improperly taken or withheld.

       Seattle argues that the statute does not include the word ?interest.?  

Neither does it expressly include ?medical bills? or ?lost work time? or

?profits,? but the phrase ?all loss, damage or injury? has been held to include 

those.  See, e.g., Nat?l Union Ins. Co. of Pittsburgh, Pa. v. Puget Sound 

Power & Light, 94 Wn. App. 163, 168, 175, 972 P.2d 481 (1999).  Seattle

says we would have to infer state consent to interest payments from the 

statute. However, ?all loss, damage or injury? is clear, broad, and inclusive.  

We have no authority to judicially amend the broad statute to read ?all loss 

(except interest).?  

       The trial court seems to have split the difference and held the statute 

                                           16

No. 80204-1

waived immunity for interest, but not for interest at the judgment rate.  

Instead, the trial court gave one percent interest because the monthly amounts 

were so small that a reasonable investor could have placed the money only in 

a low interest account.  We reject this approach for two reasons.

       First, RCW 80.04.440 says nothing about a reasonably prudent 

investor.  It consents to suit for all ?loss, damage or injury? and does not 

exempt from those losses the usual judgment interest.  Second, any

reasonably prudent investor test invites complex factual questions about 

investment returns.  The legislature has decided the number by setting the 

statutory rate of 12 percent, RCW 4.56.110(4); RCW 19.52.020 (set for all 

judgments), and we have no reason to deviate from it.  ?All loss? includes 

interest at the judgment rate. SPU must pay back the payments at the 

statutory rate.

D.     Lake Forest Park Is Liable for Hydrant Payments

       If Seattle must pay for hydrants located in Seattle, it asks Lake Forest 

Park to pay for those hydrants located in Lake Forest Park.  Seattle argues, 

and the trial court held, that RCW 43.09.210 makes the cities liable.  The 

statute reads: ?All service rendered by . . . one department . . . to another, 

                                           17

No. 80204-1

shall be paid for at its true and full value by the department . . . receiving the 

same, . . . .?  RCW 43.09.210.  This law applies to services that one 

government body provides for another, including when one city provides 

another city with services.2  Cf. State v. Grays Harbor County, 98 Wn.2d 

606, 608, 656 P.2d 1084 (1983) (?The word ?department? plainly refers to an 

administrative division or branch of government, . . . .?).  Since SPU provided 

a service to Lake Forest Park, Lake Forest Park is liable for SPU?s cost.

       Moreover, SPU provided the hydrants because Lake Forest Park 

required it to do so by ordinance.  Lake Forest Park Mun. Code 

15.04.015(A)(3). Since providing hydrants is governmental, see above, Lake 

Forest Park also consented to pay for the hydrants when it passed this 

requirement.  True, Lake Forest Park passed the ordinance before Okeson, 

but this does not avoid its liability.  

       Lake Forest Park would apply the three-part test from Covell to argue 

that Seattle would be imposing a tax on another city, which it cannot do.  The 

Covell factors are the purpose of the cost: where the money raised is 

allocated and whether the cities pay the cost because they use the service.  

2 Otherwise, resident taxpayers of the providing city would be paying for services to 
others.

                                           18

No. 80204-1

127 Wn.2d at 879.

       The purpose of charging Lake Forest Park for hydrants is clearly to 

raise money, indicating a tax.  There is no evidence that the funds are 

segregated, also leaning toward a tax.  But, most importantly, here there is a 

direct relationship between the costs charged and the service provided.  Lake 

Forest Park requires SPU to provide hydrants, and SPU is charging just for 

the costs of the hydrants required by Lake Forest Park.  We hold that the 

hydrant charge to Lake Forest Park is not a tax, but rather a cost of providing 

a government service, which Lake Forest Park must pay.

       Lake Forest Park argues that if we require it to pay for hydrants, cities 

may extend their utility services to other jurisdictions without consent and 

then charge the cost.  This possibility is speculative (and improbable).  SPU 

will not likely install fire hydrants where uninvited.  Right-of-way problems 

alone would block this eventuality.  SPU operates in Lake Forest Park only 

with that city?s permission, and it is providing a service only Lake Forest 

Park required.

       Lake Forest Park also argues that even if it has to pay for hydrants, it 

should have to pay only for costs before January 1, 2005.  On that day, 

                                           19

No. 80204-1

Seattle?s tax on SPU started.  Under Lake Forest Park?s theory, since Seattle 

already recovered the costs of hydrants starting in 2005, it would get a 

windfall if Lake Forest Park also had to pay.  We reject this argument.  RCW 

43.09.210 draws no distinction that would exempt pre-2005 charges.

       RCW 43.09.210 requires Lake Forest Park to pay for the hydrants 

within its boundary.

                                           III

       In summary, we hold that (1) providing hydrants is a government 

responsibility for which the general government of the area must pay;

(2) charging every SPU ratepayer a flat hydrant fee amounted to an improper 

tax; (3) the ratepayers may recover past improper hydrant fees, together with 

interest at the judgment rate; (4) Seattle?s new tax on SPU is legal; and 

(5) Lake Forest Park must pay for the hydrants within its boundary.

AUTHOR:
       Justice James M. Johnson

WE CONCUR:
       Chief Justice Gerry L. Alexander                 Justice Susan Owens

       Justice Charles W. Johnson                       Justice Mary E. Fairhurst

                                           20

No. 80204-1

       Justice Barbara A. Madsen

       Justice Richard B. Sanders                       Justice Debra L. Stephens

       Justice Tom Chambers

                                           21