Kitsap County v. City of Bremerton
| Decision Date | 25 March 1955 |
| Docket Number | No. 33203,33203 |
| Citation | 281 P.2d 841,46 Wn.2d 362 |
| Parties | KITSAP COUNTY, Plaintiff-Relator, v. CITY OF BREMERTON, a municipal corporation; Ronald E. Danielson and Roberta Osborn, Defendants. |
| Court | Washington Supreme Court |
John C. Merkel, Bremerton, Ronald Moore, Jerome Walstead, Willard H. Walker, Kelso, for relator.
Ronald E. Danielson, Roberta Osburn, Bremerton, for defendants in error.
Kitsap county (hereinafter referred to as relator) commenced this action under the Declaratory Judgments Act, RCW 7.24.010 et seq., to test the validity of chapter 74, Laws of 1951, and certain sections of chapter 156, Laws of 1951. The complaint joined as defendants the city of Bremerton (hereinafter referred to as Bremerton) and two attorneys (hereinafter referred to as defendants), who had been elected in the 1954 general election to serve as justices of the peace in Bremerton for a period of four years commencing January 10, 1955. Bremerton is a first class city with a population in excess of twenty thousand and is located within the above-mentioned county.
The complaint alleges that the jurisdiction of the court is based upon the ground that chapter 74, Laws of 1951, and chapter 156, Laws of 1951, are unconstitutional as violative of certain provisions of the state constitution; that if these acts are valid they 'will result in large and unnecessary expenses to the plaintiff.' Paragraph VIII reads as follows:
Paragraph IX of the complaint further states:
'Wherefore, plaintiff prays:
To this complaint Bremerton and defendants separately answered and cross-complained, the latter denying that the acts referred to in the complaint were unconstitutional except certain sections thereof which are not involved in this case. After a trial on an agreed statement of facts, the court concluded that certain portions of chapter 156, Laws of 1951, had been held unconstitutional by this court in Manus v. Snohomish County Justice Court District Committee, 44 Wash.2d 893, 271 P.2d 707, and State ex rel. Kurtz v. Pratt, Wash., 273 P.2d 516, and that chapter 74 and the remaining sections of chapter 156, Laws of 1951, were constitutional and valid. Judgment was entered accordingly.
All three parties, by written stipulation, requested this court to issue a writ of certiorari to review the declaratory judgment entered by the trial court. This was done. Bremerton has not appeared or participated otherwise in the proceedings in this court. Relator and defendants filed their briefs in this court and orally argued the cause.
Relator's position, briefly stated, appears to be that section 4, chapter 156, Laws of 1951, increases the salaries of the defendants as justices of the peace from twelve hundred dollars per annum to fifty-four hundred dollars per annum (and authorizes the county commissioners in cities of the first class to further increase such salary to any sum not exceeding sixty-five hundered dollars), that such increases represent added expense to the county, and that, therefore, Kitsap county can challenge the validity of that section. Then, claiming that section 4 and section 2 (), are not severable, relator asserts its right to attachk the validity of section 2. Practically all of relator's brief is devoted to argument attacking the validity of section 2 and of chapter 74, Laws of 1951.
For reasons stated below, we are convinced (a) that Kitsap county has no standing to question the validity of section 4, chapter 156, Laws of 1951, and (b) that there is no justiciable controversy between the parties. It necessarily follows then that relator may not attack section 2, chapter 156, Laws of 1951, or chapter 74, Laws of 1951.
Chapter 74, Laws of 1951, provides:
'In all cities having a population of five thousand or more, the justices of the peace shall be attorneys at law, duty admitted to practice in the supreme court of the state.' Section 2, chapter 156, Laws of 1951, provides:
'Justices of the peace in such cities [having a population of 5,000 or more] shall be attorneys at law duly admitted to practice in this state.'
Section 4, chapter 156, Laws of 1951, provides:
'In cities having a population of more than 20,000 the justices of the peace shall devote their full time to the duties of the office and receive a salary of five thousand four hundred dollars per annum: Provided, That in cities of the first class the county commissioners shall have the power to raise the salaries of justices of the peace to an amount not to exceed six thousand five hundred dollars per annum: Provided further, That where justices of the peace in cities over the population of 20.000 are also acting as police judges their salaries shall be fixed by the legislative body of the city, three thousand dollars of which shall be charged against the counties and the remainder shall be paid by the municipality.'
Article 4, section 10, of the state constitution, as amended in 1952 by the twenty-eighth amendment, reads, in part, as follows:
'* * * In incorporated cities or towns having more than five thousand inhabitants the justices of the peace shall receive such salary as may be provided by law, * * *.'
We now consider the right of relator to attack section 4, chapter 156, Laws of 1951, on the theory that the increase in salaries of the defendants as justices of the peace in Bremerton 'will result in large and unnecessary expenses' to relator.
Nowhere in the entire record do we find any challenge to the relator's right to maintain this action. It is elementary that one attacking the validity of an act must show that its enforcement operates as an infringement on the complaining party's constitutional rights. Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345. Without such a showing, the validity of an act cannot be questioned. This court is not bound by the apparent consent of the parties (or the failure of the defendants to object) to the exercise of jurisdiction by the court in an action brought under the declaratory judgment act to test the validity of an act of the legislature. Adams v. City of Walla Walla, 196 Wash. 268, 82 P.2d 584.
We are unable to conceive of any situation wherein the enforcement of the above-quoted section operates as an infringement upon any constitutional right of relator. The fact that the legislature has directed the county to pay an increased salary to a justice of the peace affords no basis for an attack on the constitutionality of chapter 156. None of the provisions of the state constitution mentioned in the complaint forbid such action by the legislature.
Nor do we find any authority to support the proposition that a county, as such, may maintain an action to test the validity of such an act of the legislature. Authority to the contrary effect is found in Scott County v. Johnson, 209 Iowa 213, 222 N.W. 378, 383, wherein the Iowa court quoted with approval its earlier case of Iowa Life Ins. Co. v. Board of Supervisors, 190 Iowa 777, 180 N.W. 721, as follows "This brings us to a crucial point which has been inadvertently overlooked by the parties. The attack upon these sections of the statute is made by the defendant county. It is not a taxpayer. It has never suffered discrimination by the operation of either or both of these sections. It never can suffer discrimination thereby. It is a mere collector of taxes thereunder, and perhaps a beneficiary thereof. The only power conferred upon it to collect or to receive taxes is conferred upon it by the very sections under attack and their co-ordinate sections. What does it avail the defendant to show the variance of the statutes as a ground of unconstitutionality, and thereby to destroy its own power to collect taxes at all? In other words, what standing has it to denounce an act of the legislature as unconstitutional, by the operation...
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