State ex rel. Billington v. Sinclair

• Decision Date: 29 July 1947
• Docket Number: 30154.
• Citation: 28 Wn.2d 575,183 P.2d 813
• Parties: STATE ex rel. BILLINGTON v. SINCLAIR et al.
• Court: Washington Supreme Court

183 P.2d 813

28 Wn.2d 575

STATE ex rel. BILLINGTON v. SINCLAIR et al.

No. 30154.

Supreme Court of Washington

July 29, 1947

Department 1

Rehearing Denied Sept. 12, 1947.

Action for writ of mandate by the State of Washington on the relation of Kenneth Billington against Fred W. Sinclair and others as Mayor and Commissioners of the City of Vancouver to compel the defendants to pass an ordinance or submit it to a vote of City electors. From a judgment for relator defendants appeal.

Affirmed.

MILLARD J., dissenting.

Appeal from Superior Court, Clark County; J. E Murray, Judge.

Donald Simpson, City Atty., and William C. Bates, both of Vancouver for appellants.

Ned Hall, of Vancouver, for respondent.

ABEL Justice.

The facts in this case are not in dispute. Plaintiff, a resident and taxpayer of the city of Vancouver, Washington, brought this action for a writ of mandate to compel defendants, the mayor and commissioners of the city of Vancouver, to pass an ordinance or submit it to a vote of the city electors. The 1940 census gave Vancouver a population of 18,788. On June 15, 1942, the city, being then a municipal corporation of the third class, adopted the commission form of government under which it is now operated.

Plaintiff filed with the city clerk of Vancouver a petition which conformed with the provisions of Rem.Rev.Stat. § 9110, concerning special elections under the city's form of government. This petition followed the provisions of Rem.Rev.Stat. §§ 8951, 8952, 8953, and 8954, which sections provide that a city of more than 20,000 population may adopt a charter and qualify as a city of the first class. The city clerk found the petition to be sufficient, made his certificate to that effect, and presented the petition to the defendant commissioners.

The petition requested the mayor and city commissioners to enact or submit to a vote of the people a proposed ordinance contained in the petition. The proposed ordinance, if passed, would initiate the statutory proceedings to adopt a charter and to qualify the city of Vancouver as a city of the first class. The defendant mayor and commissioners have refused either to enact the ordinance or to submit it to a vote of the people, and they will continue to refuse to act unless ordered by this court to do so.

The superior court of Clark county entered judgment, ordering defendants forthwith to take action upon the petition by enacting the ordinance or by submitting it to a vote of the people of the city of Vancouver, and, further, ordered issuance of a peremptory writ of mandate compelling such action. Defendants, the mayor and commissioners of the city of Vancouver, have appealed.

Appellants claim error because of the fact that the city of Vancouver adopted the commission form of government on June 15, 1942, and Rem.Rev.Stat. § 9112, provides in part, as follows: 'Any city which shall have operated for more than six years under the provisions of this act may abandon such organization hereunder and accept the provisions of the general law of the state of Washington applicable to cities of its population. * * *'

The petition upon which this action is based was filed with the city clerk of Vancouver on February 13, 1946, and appellants claim that, in the event the commissioners of the city of Vancouver enacted this ordinance or submitted it to a vote of the people, they would be violating the provisions of Rem.Rev.Stat. § 9112, by requiring the abandonment of the commission form of government Before the expiration of the six-year period.

Respondent claims that the language of Rem.Rev.Stat. § 9112, is not exclusive, but is simply one method of abandoning the commission form of government, and that, under art. XI, § 10, of our state constitution, the residents of a city containing 20,000 or more inhabitants have a constitutional right to frame a charter for their own government, and that this constitutional right cannot be abrogated, restricted or limited in any manner by the legislature. This section of the constitution provides: '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 and existing charter, including amendments thereto, and all special laws inconsistent with such charter. Said proposed charter shall be published in two daily newspapers published in said city for at least thirty days prior to the day of submitting the same to the electors for their approval, as above provided. All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given for at least ten days Before the day of election in all election districts of said city. Said elections may be general or special elections, and, except as herein provided, shall be governed by the law regulating and controlling general or special elections in said city. Such charter may be amended by proposals therefor submitted by the legislative authority of such city to the electors thereof at any general election, after notice of said submission published as above specified, and ratified by a majority of the qualified electors voting thereon. In submitting any such charter or amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others.'

The first legislature that met, after the adoption of the constitution, passed Laws of 1890, chapter VII, p. 140, § 12, Rem.Rev.Stat. § 8933, which has been modified, but is still the law, and which provides, in part, that cities having 20,000 or more inhabitants, according to the last preceding Federal or state census, shall constitute cities of the first class, and shall be organized and governed under the laws relating to cities authorized to frame and adopt their own charters. The same legislature passed the following acts, which are still the law:

Laws of 1890, chapter VII, p. 143, § 23, Rem.Rev.Stat. § 8947: 'Cities of the first class shall be organized and governed according to the law providing for the government of cities having a population of twenty thousand or more inhabitants, in accordance with section 10, Article XI, of the Constitution of this state.'

Laws of 1890, p. 215, § 1, Rem.Rev.Stat. § 8951: 'Any city now having, or which may hereafter have, a population of twenty thousand or more inhabitants may frame a charter for its own government.'

Laws of 1890, p. 216, § 2, Rem.Rev.Stat. § 8952, provides for a census enumeration to determine the city's population.

In the interpretation of constitutional provisions, courts are required to give effect to the intent and purpose of the framers. In 16 C.J.S., Constitutional Law, § 16, page 51, the rule is stated as follows: 'The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. Effect should be given to the purpose indicated by a fair interpretation of the language used. The intent may be shown by implication as well as by express provisions.'

In 1 Cooley's Constitutional Limitations (8th Ed.) 124, 127, the same rule is stated as follows:

'The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. * * *' "Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have

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