State ex rel. Bowen v. Kruegel

• Decision Date: 30 December 1965
• Docket Number: No. 38236,38236
• Citation: 409 P.2d 458,67 Wn.2d 673
• Court: Washington Supreme Court
• Parties: The STATE of Washington on the relation of David L. BOWEN, E. F. de la Bretonne, V. R. Hill, C. T. Houghan and J. R. Kelly, Appellants, v. Carl W. KRUEGEL, as Clerk of the City of Richland, Respondent.

Page 673

67 Wn.2d 673

409 P.2d 458

The STATE of Washington on the relation of David L. BOWEN E. F. de la Bretonne, V. R. Hill, C. T. Houghan and J. R. Kelly, Appellants, v. Carl W. KRUEGEL, as Clerk of the City of Richland, Respondent.

No. 38236.

Supreme Court of Washington, En Banc.

Dec. 30, 1965.

George C. Butler, Richland, for appellants.

Rembert Ryals, Richland, for respondent.

HALE, Judge.

Down river from the city of Richland, adjoining its easterly limits near where the Yakima river flows into the Columbia, is a community known as the Richland Y.' A majority of its inhabitants, hoping to make their district a part of Richland, petitioned for annexation, and the city council and mayor of Richland showed their approval by enacting an ordinance granting annexation. Many registered electors of Richland showed their disapproval of an annexation so consummated without a vote of Richland's electorate and petitioned the city council to repeal the ordinance of annexation or put it to a referendum in accordance with the terms of the Richland charter.

The controversy, dealing generally with relationships between the sovereign state and its first-class cities, evokes the particular question of whether cities of the first class may by charter effectively provide for the referendum election of an annexation ordinance in the absence of express statutory authority for such election.

The facts are not in dispute. Pursuant to RCW 35.13.020, a sufficient number of residents of the Richland Y, an unincorporated area contiguous to Richland, filed with the city council their petition that an annexation election be held within the Richland Y; they then filed this petition with the Benton County Commissioners. The city council, by resolution in compliance with RCW 35.13.020, notified the petitioners of its approval. Thereupon the county commissioners held an election within the Richland Y at which a majority of residents voted for annexation. On February 23, 1965, the city council enacted ordinance No. 332, annexing the Richland Y to and making it a part of the city of Richland.

Within 30 days of the effective date of ordinance 332, relators circulated a petition in Richland protesting the ordinance and to have it submitted to a vote of the Richland electors by referendum. Having obtained 2,077 qualified signatures on their referendum petitions, 649 more than necessary, relators presented the petitions to the city clerk to be canvassed and submitted to the city council. The city clerk brought matters to issue by declining to validate the petitions and relators brought mandamus in the superior court to compel the city clerk specifically to ascertain whether the referendum petitions had sufficient valid signatures and to then transmit them to the city council for the calling of a referendum election.

From judgment of dismissal pursuant to a memorandum decision, the relators as electors and freeholders of Richland bring this appeal.

Relators rely upon provisions of the Richland charter which state that proposals to repeal any ordinance concerning matters within the legislative 'as distinguished from administrative' powers of the city, may, upon compliance with certain enumerated conditions, be submitted by referendum to a vote of the peopel. ¹ They contend that the city of Richland acted within its constitutional powers in providing for referendum elections of legislative ordinances; that annexation is a legislative act; and that article 1, § 1, of the state constitution declaring that all political power is inherent in the people upholds the power of referendum in this case.

We recognize that the enactment of an ordinance of annexation by a city council constitutes legislation within the legislative as distinguished from the administrative powers of the city, and, were this case not primarily one affecting sovereign state power, the mere stating of relators' contentions would be to affirm them. But the fundamental problem remains whether, in view of the state's paramount powers in annexation, effect shall be given to provisions of a city charter authorizing the referendum of annexation ordinances enacted pursuant to and in accordance with statute.

Defendant, on behalf of the city council, would resolve this problem on the theory that power of annexation to cities of the first class rests exclusively in the state; that the legislature can constitutionally delegate this power without losing it; and that, in the case of first-class cities, the legislature has delegated the power of annexation to the city council, reserving no powers to that end in the electorate.

That cities are creatures of the sovereign state may be seen from article 11, § 10, of the state constitution which says that the legislature shall provide for the incorporation and organization of cities and that all city charters shall be subject to and controlled by general laws. In RCW 35.22, the legislature has adopted a code for the organization and establishment of cities of the first class, affording them certain powers of government and capabilities as corporate entities. And though the power of referendum in annexation cases is nowhere prohibited, neither is such power anywhere conferred upon the city electorate. In neither RCW 35.22.280, enumerating numerous specific powers conferred by the state in first-class cities, nor in RCW 35.22.570, granting them the general powers customarily authorized, do we find a grant of the power sought to be exercised by the relators here, namely a power in the electorate to override by referendum election an annexation ordinance.

The power of annexation has been conferred by the state legislature on cities of the first class not in the specifically enumerated powers of RCW 35.22.280, but instead under RCW chapter 35.13 generally. and as in this case from Laws of 1961, ch. 282, p. 2279, which appears to be a substantial amendment to but likewise re-enactment of many of the provisions of RCW chapter 35.13.

The residents of the Richland Y petitioned for annexation under RCW 35.13.020, Laws of 1961, ch. 282, § 7, p. 2283 which calls for the first of two legislative actions by the legislative body of the city, I.e., expressing Inter alia its approval or disapproval by Resolution. They then sought to complete annexation by following the procedures described in RCW 35.13.100, Laws of 1961, ch. 282, § 17, p. 2287, which calls for the second and final legislative action of the city's Legislative body, I.e., adoption of an Ordinance of annexation.

That the legislature intended to confer powers of annexation on the city council where the legislation refers to Resolutions and the council and mayor together where the statute refers to Ordinances and not in the freeholders or electorate, may be seen in the legislature's employment of the term Legislative body in Laws of 1961, ch. 282, p. 2279, the statute under which these annexation procedures were undertaken.

Laws of 1961, ch. 282, § 1, p. 2279, says that the Legislative body of a city or town may initiate annexation by resolution asking the county commissioners to hold an election in any contiguous unincorporated territory. Section 2, p. 2280, says, Inter alia, that the Legislative body of a city or town may approve or disapprove an annexation provision brought by others. Section 7, p. 2283, provides that petitions for annexation shall be filed with the Legislative body of the town to which annexation is proposed, and thrice more in this section the city council is referred to as the Legislative body. Again, in § 17, p. 2287, the city clerk is directed to transmit to the Legislative body of the city at its next regular meeting the findings of the county commissioners relating to annexation. Thrice more in this section we note the term Legislative body, and subsequently in §§ 18 and 19 the city council is unmistakably identified as the Legislative body.

The language used by the legislature in prescribing the particular methods of annexation employed by the residents of the Richland Y as set forth in RCW 35.13.020 and RCW 35.13.100, each section being an integral part of Laws of 1961, ch. 282, p. 2279, seems peculiarly adapted to vesting the ultimate power of annexation in such cases with the city council and not in the electorate or the city as a corporate entity. We hold,...