De Grief v. City of Seattle

• Decision Date: 24 May 1956
• Docket Number: No. 33528,33528
• Citation: 297 P.2d 940,50 Wn.2d 1
• Parties: Roy DE GRIEF, Appellant, v. The CITY OF SEATTLE, Allan Pomeroy, as the mayor of said city, and M. B. Mitchell, David Levine, Robert Harlin, Bob Jones, Charles M. Carroll, Alfred R. Rochester, Clarence F. Massart, J. D. Braman and Myrtle S. Edwards, as the members of city council of the city of Seattle, Respondents.
• Court: Washington Supreme Court

Page 1

50 Wn.2d 1

297 P.2d 940

Roy DE GRIEF, Appellant, v. The CITY OF SEATTLE, Allan Pomeroy, as the mayor of said city, and M. B. Mitchell, David Levine, Robert Harlin, Bob Jones, Charles M. Carroll, Alfred R. Rochester, Clarence F Massart, J. D. Braman and Myrtle S. Edwards, as the members of city council of the city of Seattle, Respondents.

No. 33528.

Supreme Court of Washington, En Banc.

May 24, 1956.

Rehearing Denied April 17, 1957.

McMicken, Rupp & Schweppe, Seattle, for appellant.

A. C. Van Soelen, Arthur Scharamm, Seattle, for respondents.

DONWORTH, Justice.

This case involves the constitutionality and, in the alternative, the proper interpretation of chapter 290, Laws of 1955, which is entitled:

'An Act creating and establishing municipal courts in cities of the first class having more than five hundred thousand inhabitants, defining and prescribing their jurisdiction, regulating their practice and procedure; providing judges and personnel thereof; and fixing salaries.'

The action was instituted by one of the police judges of the city of Seattle (who is herein referred to as appellant) against the city, its mayor, and members of its city council (referred to as respondents) to enjoin the enforcement of the statute and of ordinance No. 84122 of the city of Seattle, which was enacted to implement the statute, and became effective on the same day. The prayer of the complaint was for both injunctive relief against their enforcement and for a judicial declaration that the statute and the ordinance are both unconstitutional and void in certain particulars and in their entirety.

The trial court entered a temporary injunction (which is still in effect) enjoining the enforcement of the statute and the ordinance during the pendency of this litigation. Thereafter, respondents' demurrer to the complaint, on the ground that it failed to state facts sufficient to entitled appellant to the relief prayed for, was argued and sustained in part and overruled in part. Since appelant stood on his complaint, and respondents declined to plead further, the court entered a final judgment enjoining the operation of that portion of ordinance No. 84122 fixing the salary of a judge of the municipal court at eight thousand dollars for the year 1955, but denied a permanent injunction against the enforcement of chapter 290, Laws of 1955. From this latter portion of the judgment, this appeal has been prosecuted.

The principal allegations of appellant's complaint may be summarized as follows:

Appellant is a resident and taxpayer of the city of Seattle, and on November 2, 1954, was a duly elected justice of the peace of that city for a term expiring January 1, 1959. On January 10, 1955, he was appointed by the mayor as police justice. (Chapter 84, Laws of 1941, which authorizes such appointment, provides that such police justice or police judge shall be designated as municipal judge of the city).

The city of Seattle is a city of the first class, having a population of 467,591 inhabitants, as shown by the last Federal census (made in 1950), and there has been no state census made subsequent to 1950, pursuant to Art. II, § 3 of the state constitution.

Appellant is receiving a salary as justice of the peace of $6,500 per year, plus an additional salary from the city as police judge of $1,500 per year. He has the right to practice law when not otherwise engaged in the performance of his judicial duty, and this right is extremely valuable to him, having for some years past resulted in an income of between $5,000 and $6,000 per year.

Chapter 290, Laws of 1955 (herein referred to as the act), was enacted pursuant to Art. IV, § 1 of the state constitution, and 'takes effect June 9, 1955.' (The complaint was filed June 3, 1955, and, as now appears by supplemental transcript, was served on the attorney general June 7, 1955).

The act purports to create a new municipal court in cities with more than five hundred thousand population, and to displace the presently incumbent police justices prior to the end of the term for which they were elected. It also imposes new and higher financial obligations on such cities in the middle of the budget year, which could not be anticipated by them, all as more particularly shown by the letter of May 2, 1955, written by the corporation counsel to the city council, a copy of which is attached to the complaint.

On May 23, 1955, the city council passed ordinance No. 84122 for the purpose of making the act effective in the city of Seattle.

Since, in addition to attacking the constitutionality of the act, appellant is contending that the act is not presently applicable to the city of Seattle, paragraph VIII of the complaint is set forth in full:

'That said Chapter 290 of the Laws of 1955 does not apply to the City of Seattle, in that said City of Seattle does not have, as required by Section 1 of said Chapter 290, a population of more than 500,000 'as shown by the federal or state census, whichever is the later;' that by the last federal census, viz., of 1950, the population of Seattle was 467,591, and that there was not been since 1950, nor for many years past, a state census, viz., an actual enumeration of the inhabitants of the state, as contemplated by Article II, section 3 of the Constitution of the State of Washington; that under the provisions of Chapter 5 , Laws of 1947, and Chapter 96, Laws of 1951, (R.C.W. 43.62.010 et seq.) a state census board is created which does not enumerate but estimates the population of cities and towns for the purpose of allocating to cities and towns certain state funds, particularly motor vehicle excise funds; that according to the last certificate filed by the so-called state census board with the Secretary of State in 1954, the estimated population of the City of Seattle as of April 1, 1954 was 548,000; but that such so-called census is an estimate merely of the populations of cities and towns within the state and is not a 'state census', within the meaning of the State Constitution, or within the intent of the legislature.'

The remainder of the complaint alleges five grounds on which the act is said to be invalid. These need be considered only in the event that we should come to the conclusion that the act is presently operative as to the city of Seattle.

Having stated in substance all the material allegations of the complaint, we turn to the consideration of appellant's first assignment of error, to wit, that the trial court erred in holding that chapter 290, Laws of 1955, is by its terms presently applicable to the city of Seattle. (If so, the act became operative therein on June 9, 1955.)

In order to pass upon this question, we must have in mind the language of several sections of the act, particularly § 1, which reads 'There is hereby created and established in each incorporated city of this state having a population of more than five hundred thousand inhabitants, as shown by the federal or state census, which ever is the later, a municipal court, which shall be styled 'The Municipal Court of ........ (name of city),' hereinafter designated and referred to as the municipal court, which court shall have jurisdiction and shall exercise all the powers by this act declared to be vested in such municipal court, together with such powers and jurisdiction as is generally conferred in this state either by common law or statute.' (Italics ours.)

In contrast to the italicized language in § 1, we find in § 10 of the act, relating to the creation of additional departments of the municipal court, the following provision:

'There shall be two departments of the municipal court, provided that the legislative body of the city shall create one additional department for each additional one hundred fifty thousand inhabitants over five hundred thousand, as determined by the most recent federal or state census. The latter shall be as provided by Chapter 96, section 2, Laws of 1951 (RCW 43.62.030). Each department shall be presided over by a municipal judge who shall be elected as hereinafter provided. The departments shall be established in such places as may be provided by the legislative body of the city. * * *' (Italics ours.)

The reference to chapter 96, Laws of 1951, RCW 43.62.030, in § 10 of the act, and the omission of any reference thereto in § 1 thereof, make it very difficult to interpret the intention of the legislature as to when chapter 290, Laws of 1955, was to become operative.

By chapter 96, Laws of 1951, the legislature created a state census board whose duty it is to 'determine,' as of April 1 of each year, the population of each city and town in the state. Its report is required to be filed with the secretary of state on June 1, and after January 1 of the following year the report shall be used as the basis for the allocation of state funds to cities and towns during that year. In § 3 the legislature provided:

'The tax commission or any other state officer or officials of cities and towns shall upon request of the board furnish such information, aid, and assistance as may be required by the board in the performance of its duties. The action of the board in determining the population shall be final and conclusive.'

There is nothing in this statute other than the above quoted section to indicate what method the board shall adopt in determining the population of the cities and towns. The complaint, in effect, alleges that the 1954 report of the state census board contains merely an estimate of the population of Seattle which is not based on an actual enumeration of its inhabitants and is not a state census within the meaning of the constitutional provision, Art. II, § 3, or the intent of the legislature in enacting chapter 290, Laws of 1955. These are legal conclusions of the pleader which are not admitted by the demurrer.

We, therefore, find the same words 'state census' in both § 1 and § 10 of the act, but it is only in the latter sect...