Martin v. Tollefson

• Citation: 24 Wn.2d 211,163 P.2d 594
• Decision Date: 20 November 1945
• Docket Number: 29787.
• Parties: MARTIN v. TOLLEFSON et al.
• Court: United States State Supreme Court of Washington

163 P.2d 594

24 Wn.2d 211

MARTIN v. TOLLEFSON et al.

No. 29787.

Supreme Court of Washington, En Banc.

November 20, 1945

Action by Genevieve Martin, as city clerk of the City of Tacoma against Thor C. Tollefson and others involving the constitutionality of an act. From a judgment holding the act unconstitutional, defendants appeal.

Affirmed.

Appeal from Superior Court, Pierce County; E. D Hodge, judge.

Thor C Tollefson, Theo L. DeBord, and J. D. Barline, all of Tacoma for appellants.

Howard Carothers, Clarence M. Boyle, George F. Abel, and Hugo Metzler, Jr., all of Tacoma, for respondent.

ROBINSON Justice.

The parties to this action have agreed that the only question involved on this appeal is: 'Is Chapter 60 of the Session Laws of the State of Washington for 1945 unconstitutional and in violation of Article II, Section 28, subsection 8 and Article XI, Section 10 of the Constitution of the State of Washington?'

It will, therefore, be unnecessary to state how the question arose. The trial court held the act unconstitutional, and appellants are here contending that it is not. We quote the act in full, italicizing certain words in the body of the act and the same words in its title:

'Elections in First Class Cities.

'AN ACT relating to elections in first class cities having a population in excess of 100,000 and not greater than 150,000, as shown by the 1940 census of the United States, and repealing inconsistent acts.

'Be it enacted by the Legislature of the State of Washington:

'Section 1. Candidates for office in cities of the first class having a population in excess of one hundred thousand (100,000) and not greater than one hundred fifty thousand (150,000), as shown by the 1940 census of the United States, shall be nominated at primary elections to be held in such cities on the second Tuesday in February preceding the general election at which such offices will be filled: Provided, That the two candidates receiving the highest number of votes cast for each office to be filled shall be the nominees and their names shall appear on the ballot to be voted upon at said general election.

'Sec. 2. All acts or parts of acts in conflict herewith are, to the extent of such conflict, repealed.

'Passed the House February 13, 1945.

'Passed the Senate March 6, 1945.

'Approved by the Governor March 14, 1945.'

If the above act, which will hereinafter be referred to as Chapter 60, is constitutional, it will require a change in the election procedure now provided by the Tacoma city charter, as it is conceded by appellants that: 'In order to comply with the provisions of Chapter 60 of the Session Laws of 1945, it will be necessary for the City Clerk of the City of Tacoma to certify to the Pierce County Election Board the list of offices to be filled and the names of the candidates for such offices about two weeks earlier than required by the City Charter; the opening and closing dates for the filing of declarations of candidacy will be advanced about two weeks, and Section 106 of the City Charter, providing that the candidate receiving a majority of the votes cast at the primary election shall be elected, will become inoperative.' Appellants' Brief, p. 6.

In short, the effect of Chapter 60 is to amend the Tacoma charter. As to what effect, if any, it would have as to the charter of Spokane, the only other city in the state having a population of between 100,000 and 150,000, as shown by the census of 1940, we are not informed.

The constitutional provisions involved are as follows:

'Art. 2, § 28. The legislature is prohibited from enacting any private or special laws in the following cases:----

* * *

* * *

'8. For incorporating any town or village, or to amend the charter thereof.'

Section 10 of Article XI is more than a page in length. That portion upon which respondent chiefly relies reads 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. * * *' (Italics ours.)

The appellants contend:

(1) That, in the absence of constitutional prohibition, the enactment of special laws is within the power of the legislature. The following is a fairly representative example of the appellants' numerous quotations in support of this contention: 'In the absence of constitutional prohibition, express or implied, the enactment of special or local laws is clearly within the power of a state legislature.' 25 R.C.L. 819, § 67. (Italics ours.)

(2) That subsection 8 of section 28 of Article II of the constitution merely forbids the legislature from passing any private or special act incorporating 'any town or village,' or amending the charter thereof. Chapter 60 affects only cities having a population in excess of 100,000, and not greater than 150,000, and, therefore, its enactment is not prohibited by that constitutional provision.

(3) That section 10 of Article XI of the constitution in no way prohibits the legislature from annulling city charters by private or special laws.

(4) That, in any event, Chapter 60 is not a private or special law, or at any rate it should not be construed to be, and, in support of the latter part of the contention, it is said: 'We also submit that it was the intent of the legislature to pass an act which was constitutional rather than unconstitutional, and it was its intention that the act in question should be prospective in its nature and that, therefore, by judicial construction, the words '1940 census of the United States' should be construed to mean the 'last official census of the United States.' As such, the statute would be a general law rather than special and would be prospective in its operation.' Appellants' Brief, pp. 30, 31.

That the first of the above numbered contentions is sound will be conceded. We think that contention (2) is also well taken. To reject it, since all doubts must be resolved in favor of constitutionality, it would be necessary for the court to be convinced that, when the framers of the constitution used the words 'town or village' in subsection 8 of section 28 of Article II, they used them generically, as respondent contends, meaning any and all municipalities, or, at the very least, that they meant to include municipalities of a population of more than 100,000. We are inclined to the view that they used the words 'town or village' in contradistinction to 'city,' and, although we have no way of determining just where the makers of the constitution drew the line between 'town or village,' on the one hand, and 'city,' on the other, we do at least know that they considered a municipality of 20,000 inhabitants or more to be a city; for, we find the following language in section 10 of Article XI: 'Any city containing a population of twenty thousand inhabitants or more * * *.' (Italics ours.)

It is our opinion, and we so hold, that, since Chapter 60 deals only with municipalities having a population in excess of 100,000, it does not violate subdivision 8 of section 28 of Article II of the state constitution.

We, however, take issue with appellants' contention (3). We think section 10 of Article XI of the constitution does prevent the amendment of city charters by special or private enactments, although it does not do so in the direct manner used in prohibiting amendment, by special acts, of the charters of villages or towns.

In support of their contention, appellants say, in their brief: 'Article XI, Section 10 of the Washington Constitution sets forth the manner in which cities and towns may organize and incorporate, and the manner in which cities of over 20,000 inhabitants may adopt a charter. With the exception of the first clause of the section, it is submitted that the entire section is a grant or authorization of powers and not a limitation of powers.' Appellants' Brief, p. 17.

And, again, on the following page, appellants say, of the same constitutional provision: 'This section merely guarantees to cities and towns the right to organize or incorporate and, to cities of over 20,000 inhabitants, the right to be governed by a charter framed and adopted in accordance with this section.'

We agree with appellants that section 10 of Article XI of the state constitution is chiefly concerned with grants. The people, under our system of government, are the source of all governmental power, and they adopted the constitution for the purpose of creating certain agencies through which that power should be exercised. In so doing, they made a grant of legislative power directly to the cities in section 10, Article XI. We quote the exact terms of this grant: '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, * * *.'

Had the people who created the constitution stopped at that point which, since they possessed all governmental power, they could, of course, have done, we take it that no one would contend that the state legislature could change or amend a duly adopted city charter by the passage of any act whatever, whether general or special. But the...