City of Seattle v. Clark

• Decision Date: 27 June 1902
• Citation: 69 P. 407,28 Wash. 717
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE v. CLARK.

69 P. 407

28 Wash. 717

CITY OF SEATTLE v. CLARK.

Supreme Court of Washington

June 27, 1902

Appeal from superior court, King county; Arthur E. Griffin, Judge.

Action by the city of Seattle against J. B. Clark to collect a liquor license. From a judgment for defendant, plaintiff appeals. Reversed.

Mitchell Gilliam and Wm. Parmerlee, for appellant.

Preston Carr & Gilman and John F. Dore, for respondent.

WHITE J.

This is an action brought by the appellant for the purpose of recovering from the respondent the sum of $304.69, claimed to be due as the increased license rate for the sale of intoxicating liquors at retail in accordance with the provisions of an amendment to the city charter of Seattle passed at the general election in March, 1902. Prior to said election the license fee for retail liquor licenses in said city was fixed by ordinance at $600 per annum. The freeholders' charter of the city of Seattle, in addition to the laws for the government of cities of the first class originally provided that the city had power 'to license tax, confine within limits of time and place to be by the city council prescribed, and to otherwise regulate the selling or giving away of intoxicating, spirituous, malt vinous, mixed or fermented liquors, and the collection of the license money therefrom for the use of the city: provided, that no license shall be granted to any person or persons who shall not first comply with the general laws of the state in force at the time the same is granted, nor shall any license be granted authorizing the selling or giving away of any such liquors within one mile of any military post or reservation established by the United States. The sum required for such license shall in no case be less than the amount required by the general laws of the state for houses or business of like character, and no remission of such license shall be made during the period for which it is granted; and bonds required to be given by keepers or proprietors of saloons or drinking houses shall not in any case be fixed at less than two thousand dollars.' Subdivision 32, § 18, of the charter of Seattle. In March, 1902, the people, by a vote of 6,213 against 4,877, amended this charter provision so that after the words 'United States' it read: 'The sum required for such license shall in no case be less than one thousand dollars, except that licenses for the selling or giving away of such liquors in quantities of not less than one gallon shall in no case be less than four hundred and fifty dollars, and shall in no case be less than the amount required by the general laws of the state for houses or business of like character, and no remission of such license shall be made during the period for which it is granted and bonds required to be given by keepers or proprietors of saloons or drinking houses shall not in any case be fixed at less than two thousand dollars.' Since the 8th of March, 1902, said amendment has been a part of the charter of the city of Seattle. On the 4th of June, 1901, the city council passed an ordinance, the material portions of which are as follows 'That on and after the date of the passage and approval of this ordinance any license granted for the sale of intoxicating liquors by the city of Seattle shall be granted with a proviso that if an amendment of the city charter which is to be submitted to the people at the next city election to be held in March, 1902, fixing the amount to be paid for such license, shall carry, then each license hereafter granted shall be at the rate provided in said charter amendment from and after the time said charter amendment shall take effect.' On the 10th of January, 1902, the city of Seattle, through its proper officers, issued to respondent a license to sell liquor at wholesale and retail for the period of one year; collecting from him the sum of $600 as a license fee. As a condition to the obtaining of this license, the respondent was required to sign the following, which was indorsed upon the license: 'This license is granted upon the condition that if an amendment to the city charter which is to be submitted to the people at the next city election to be held in March, 1902, fixing the amount to be paid for licenses for the sale of intoxicating liquors, shall carry, then, from the adoption of such amendment, the licensee herein named shall pay for this license for the unexpired term thereof at the rate fixed by such charter amendment.' There is an allegation in the complaint that there is a balance due, under said increased license rate, of $304.69, which respondent refuses to pay, and that he still continues to carry on and conduct his business under said license. To the complaint the respondent filed a general demurrer, which, upon argument, was sustained by the court; and, the appellant electing to stand upon its complaint, judgment for costs was rendered against it. From the order sustaining the demurrer and from said judgment for costs this appeal is prosecuted.

It is contended by the respondent that the license fee is but $600, and that said amendment is void. Two points are relied upon: First, that fixing by charter amendment the license fee was a delegation of the legislative power of the city to the people; second, that, under the laws of the state of Washington, sole and exclusive authority and power to regulate the sale or disposal of spirituous liquors within the corporate limits of the cities of the first class are vested in the mayor and common council, and that the people, by a vote amending the charter, cannot fix the license fee to be charged for the sale of intoxicating liquors.

Section 2934, Ballinger's Ann. Codes & St., reads as follows: 'The mayor and council or other governing body of each incorporated city, incorporated town, or incorporated village in the state of Washington shall have the sole and exclusive authority and power to regulate, restrain, license, or prohibit the sale or disposal of spirituous, fermented, malt, or other intoxicating liquors within the corporate limits of their respective cities, towns, or villages: provided, that the annual license fee for the sale of such spirituous, fermented, malt, or other intoxicating liquors shall, in no instance, be less than three hundred dollars or more than one thousand dollars, which said license fee shall be paid annually in advance to the treasurer of the city, town, or village, who shall pay ten per cent. thereof into the general fund of the state treasury, and hand the remaining ninety per cent. into the general fund of the city, town, or village treasury.' Section 10, art. 11, of the constitution, is in part as follows: 'Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed. Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith; and cities or towns heretofore or hereafter organized and all charters thereof framed or adopted by authority of this constitution shall be subject to and controlled by general laws. Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had, at which election there shall be chosen by the qualified electors of said city fifteen freeholders thereof, who shall have been residents of said city for a period of at least two years preceding their election, and qualified electors, whose duty it shall be to convene within ten days after their election, and prepare and propose a charter for such city. Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organic law thereof, and supersede any existing charter, including amendments thereto, and all special laws inconsistent with such charter. * * *' Section 11 of the same article is as follows: 'Any county, city, town, or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.'

The respondent contends that section 2934, supra, is still in force; that it is a general law of the state, and, under the constitutional provision, the city council is controlled thereby. It must be remembered that section 2934, supra, was enacted during the territorial period, and if continued in force it is by virtue of the constitutional provision that laws in force in the territory of Washington which are not repugnant to the constitution remain in force until altered or repealed by the legislature. The section under consideration gave to the mayor and council or other governing body of incorporated cities, incorporated towns, and incorporated villages in the territory of Washington the sole and exclusive authority and power to regulate, restrain, license, or prohibit the sale or disposal of intoxicating liquors within the corporate limits of such towns; and it fixed the minimum and maximum amount to be paid for the license, and provided that after it was paid a certain per cent. should be paid to the territorial treasurer. Laws 1888, p. 124, § 2; Ballinger's Ann. Codes & St. § 2934. Under section 10, art. 11, of the constitution, the first state legislature...