State ex rel. Gray v. Martin, 30292

• Decision Date: 13 February 1948
• Docket Number: 30292
• Citation: 189 P.2d 637,29 Wn.2d 799
• Parties: STATE ex rel. GRAY v. MARTIN et al.
• Court: Washington Supreme Court

189 P.2d 637

29 Wn.2d 799

STATE ex rel. GRAY v. MARTIN et al.

No. 30292

Supreme Court of Washington

February 13, 1948

Department 1

Action by the State, on the relation of Neil D. Gray, for writ of mandate against Genevieve Martin, as clerk of the City of Tacoma, and another, to compel defendants to receive, file and canvas referendum petitions. From an order dismissing the petitions, relator appeals.

Reversed and writ of mandate granted.

Appeal from Superior Court, Pierce County; Donald A. mCdonald, judge.

Copeland & Tollefson, of Tacoma, for appellant.

Clarence M. Boyle, Dean Barline, Horace G. Geer and Robert E. Cooper all of Tacoma, for respondents.

Skeel McKelvy, Henke, Evenson & Uhlmann and Altha P. Curry, all of Seattle, amici curiae.

ROBINSON Justice.

The relator, a qualified elector and registered voter in the city of Tacoma, instituted action for an alternative writ of mandate, seeking thereby to compel the defendants named therein to receive, file, and thereupon canvass certain referendum petitions tendered to them by the relator and others, and, if found sufficient, thereafter to transmit them to the city council of the city of Tacoma, for such action as is prescribed by law.

The facts are few and not in dispute. On April 16, 1947, the city council of the city of Tacoma, Washington, unanimously passed Ordinance No. 13082, which authorized and directed the purchase and condemnation by legal proceedings of certain real estate situated in the outskirts of Tacoma and commonly known as the Sixth Avenue site for the purpose of establishing, constructing, and operating a municipal airport and air navigation facilities. By its express terms, the ordinance declared the proposed project to be for a 'public use and necessity,' and further declared the existence of a public emergency, making it necessary that the ordinance take effect immediately.

On April 17, 1947, the day after its passage, the ordinance was duly published.

Within the time required by law, relator presented to the city clerk of Tacoma and her deputy a number of petitions signed by relator and others, for a referendum of the adopted ordinance. The municipal officers refused to accept the petitions, for the reason, as set forth in their affidavit, that the ordinance contained a statement that a 'public emergency' existed and therefore came within the express provisions of the city charter exempting from referendum all ordinances containing 'a statement that a public emergency specified therein exists.' Relator, then, by petition, commenced this action in the superior court for an alternative writ of mandate, seeking the relief stated above as against the city clerk and her deputy. Upon a hearing Before the court without a jury, the petition was dismissed. Relator thereupon appealed.

The primary question presented by this action is whether or not Ordinance No. 13082 is an emergency ordinance within the meaning of Sections 23(d) and 116 of the charter of the city of Tacoma, which excepts certain ordinances from the charter's provisions relating to referendum.

The relator, Neil D. Gray, appellant herein, contends that the ordinance is not emergent within the meaning of the charter, and that it is therefore subject to referendum; the respondent city officers, on the other hand, contend that the ordinance is emergent, and therefore not subject to referendum.

The pertinent provisions of the charter here involved read as follows:

'Section 23(d). Every ordinance shall, within ten days after its passage, be published once in the official newspaper of the city and no ordinance shall take effect or be in force until after the expiration of ten days from such publication, subject always to the provisions of this charter concerning referendum, except ordinances containing a statement that a public emergency specified therein exists, ordinances relating to local improvements and assessments therefor, and authorizing the issuance of local improvement bonds, ordinances adopting annual budgets, levying annual tax and making appropriations, which shall take effect immediately after publication; provided, that no ordinances granting a franchise, right or privilege shall become effective until after the expiration of thirty days from the date of its publication.

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'Sec. 116. If, prior to the date when any ordinance, excepting ordinances containing a statement that a public emergency specified therein exists, ordinances relating to local improvement districts and assessments therefor, and authorizing the issuance of local improvement bonds, ordinances adopting annual budgets, levying annual tax and making appropriations, shall take effect, a petition signed by qualified electors equal in number to at least ten percentum of the last preceding vote cast for all candidates for Mayor, shall be filed with the City Clerk and verified as to sufficiency of signatures, as in the case of an initiative ordinance, such ordinance shall be suspended from taking effect, and the Council shall immediately reconsider the same, and if it does not repeal such ordinance, it shall submit it to the qualified electors for their approval or rejection at the next general municipal election, occurring not less than forty-five days thereafter, under a ballot title prepared therefor by the corporation counsel.' (Italics ours.)

The preamble and pertinent parts of Ordinance No. 13082 read:

'An ordinance authorizing and directing the Corporation Counsel of the City of Tacoma to institute and prosecute an action in the Superior Court of the State of Washington for Pierce County, under the right of eminent domain, for the condemnation and acquisition in fee simple of certain tracts and parcels of land for the purpose of establishing, constructing, maintaining, equipping and operating a municipal airport and air navigation facilities in Section 2, 3, 10 and 11, Township 20 North, Range 2 East W.M.; and declaring a public emergency and that this ordinance shall take effect immediately after publication.

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'Section 2. That the acquisition of said land for the purpose herein mentioned is for a public use and necessity.

'Section 3. That nothing in this ordinance shall be construed as a waiver by the City of Tacoma of its right to decline to take and pay for said property after the amount of damages has been ascertained and within the time allowed by law.

'Section 4. That in order to provide adequate transportation facilities for the inhabitants of the City of Tacoma and for the support of the City government it is imperative that the provisions of this ordinance become effective without delay and by reason thereof a public emergency is hereby declared to exist making it necessary that this ordinance take effect immediately after publication and that the same shall take effect immediately after publication.' (Italics ours.)

It has become well settled in this jurisdiction that the question of whether or not laws passed by the state legislature are emergent as exceptions to the referendum provisions of the state constitution is a judicial question. State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11; State ex rel. Case v. Howell, 85 Wash. 281, 147 P. 1162; State ex rel. Satterthwaite v. Hinkle, 152 Wash. 221, 277 P. 837; State ex rel. Reiter v. Hinkle, 161 Wash. 652, 297 P. 1071; State ex rel. Robinson v. Reeves, 17 Wash.2d 210, 135 P.2d 75, 146 A.L.R. 280; State ex rel. McLeod v. Reeves, 22 Wash.2d 672, 157 P.2d 718; State ex rel. Kennedy v. Reeves, 22 Wash.2d 677, 157 P.2d 721; State ex rel. Pennock v. Reeves, Wash. 179 P.2d 961.

Counsel have cited no cases from this jurisdiction directly in point, and we have found none, regarding the application of the above rule to city ordinances. However, we have no hesitancy in declaring that the same rule does apply to such ordinances. The same reasons which underlie the rule with reference to state legislation, as set forth in the Brislawn case, supra, apply with equal force to legislation in the form of ordinances adopted by a city council. Municipal ordinances constitue legislation enacted and adopted by a legislative body, a city council, or similar body, which derives its power from the state constitution. Since courts have the power to decide the constitutionality of a city ordinance, Brown v. Seattle, 150 Wash. 203, 272 P. 517, 278 P. 1022, they likewise must have the power to determine whether or not a certain ordinance is an emergency ordinance within the requirements of the city charter under which it is enacted and by the express provisions of which the right of referendum is reserved to the people as to such ordinances as are not emergent. See Notes (1928), 55 A.L.R. 779.

In our consideration of the question here involved, we proceed upon the principle that, in judicially determining whether or not a statute or ordinance is emergent, the court will give great weight to the declaration of emergency, as expressed by the legislative body. This rule, which requires a declaration of emergency by the legislative body, was most recently reaffirmed in State ex rel. Pennock v. Reeves, supra, , State ex rel. Hamilton v. Martin,

173 Wash. 249, 23 P.2d 1. We must give to the action of the legislature and its declaration of an emergency, every favorable presumption.'

In the solution of the question here presented it should be observed that the people of the city of Tacoma, through their city charter, have reserved to themselves the power of referendum over all ordinances, save only those which are emergent. As stated in the Brislawn case, supra, the electors, by this reservation, fixed a limit beyond which the legislature cannot go without doing violence to the will and voice of the people....