State ex rel. Swan v. Jones

• Decision Date: 10 November 1955
• Docket Number: No. 32831,32831
• Citation: 289 P.2d 982,47 Wn.2d 718
• Court: Washington Supreme Court
• Parties: The STATE of Washington on the relation of Edgar M. SWAN, Appellant, v. R. DeWitt JONES, Prosecuting Attorney for Clark County, State of Washington, Respondent.

Page 718

47 Wn.2d 718

289 P.2d 982

The STATE of Washington on the relation of Edgar M. SWAN, Appellant, v. R. DeWitt JONES, Prosecuting Attorney for Clark County State of Washington, Respondent.

No. 32831.

Supreme Court of Washington, En Banc.

Nov. 10, 1955.

Everal Carson, Edgar M. Swan, Vancouver, for appellant.

R. DeWitt Jones, David C. Hutchison, Vancouver, for respondent.

FINLEY, Justice.

In this action, the relator is a citizen, resident, freeholder, and taxpayer of the city of Vancouver, Washington. He applied to the Clark county superior court for an order directing the respondent, the county prosecuting attorney, to institute proceedings in the nature of quo warranto against seven individuals, purportedly acting as members of the City Council of Vancouver, Washington. Relator's objective was to oust the individuals from office. However, in effect, the lawsuit questions the validity of the 'home rule' charter adopted by a substantial majority of the citizens of Vancouver at an election in February of 1952, and the legality of the subsisting city government. The trial court refused to issue the order, denied relator's application, and dismissed the action. This appeal followed.

The facts are relatively simple. According to the 1950 census, the population of Vancouver, Washington, was then in excess of forty thousand. Under the authority of Art. XI, § 10, of the state constitution, the citizens of Vancouver had the right and were entitled to adopt a 'home rule' charter for the government of their city. Pursuant to this authority, they enacted a city ordinance, which provided for the election of fifteen freeholders, to formulate and draft a 'home rule' charter. The freeholders were duly elected, and a charter was drafted. Among other things, Art. XI, § 10, of the state constitution provides that a proposed 'home rule' 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, * * *.' (Emphasis supplied.)

In 1951, two newspapers were being published in the city of Vancouver. Customarily, the Columbian and Sun was published five days a week. The proposed 'home rule' charter was published in thirty daily editions or issues of the Columbian and Sun prior to the day of the election. Customarily, the Clark County News was published weekly. However, under a contract with the city, the Clark County News went into daily publication. Thereupon, the proposed 'home rule' charter was published in thirty daily issues of the Clark County News. There was no distribution of the paper by mail. The city of Vancouver was divided into four areas or sections. One thousand copies of the Clark County News were distributed on successive days in one of the four areas or sections of the city. Every fifth day, the distribution pattern was again commenced and completed, until the proposed 'home rule' charter had been published for thirty days in thirty such issues of the Clark County News, distributed in the above-described manner. In addition to the foregoing, wide and general publicity was given to the proposed 'home rule' charter election by way of radio programs, newspaper stories, and articles appearing in both of the local newspapers and in the Oregon Journal and the Oregonian. The latter two large, modern, metropolitan newpapers are published daily in Portland, Oregon, and have a substantial and general circulation in Vancouver, and in Clark county, Washington. Notices of the special election were posted in the various polling precincts of Vancouver. There were numerous speeches and discussions of the proposed 'home rule' charter before local civic and community groups. Appellant concedes that the Columbian and Sun, although published only five days a week, is a daily newspaper within the meaning of the terms as used in Art. XI, § 10, of the state constitution. He urges that the Clark County News was not a daily newspaper, customarily published as such. In effect, he argues that the word customarily and the words as such should be inserted or read into Art. XI, § 10, of the state constitution. This interpretation, suggested by appellant, would have the pertinent provision read as follows:

'Said proposed charter shall be published in two daily newspapers [customarily] publised [as such] in said city, for at least thirty days prior to the day of submitting the same to the electors for their approval, * * *.'

In short, appellant contends that the News, as published and circulated under the contract with the city of Vancouver, was not a daily newspaper within the meaning of these two words as used in the state constitution.

Relator's petition sets forth the facts outlined above regarding the publication and distribution of the Clark County News. Paragraph six of his petition states that the Clark County News is a weekly newspaper at all times mentioned therein. Paragraph eight of the petition incorporates therein, by reference, Vancouver Ordinance No. C-435. We note that § V of the ordinance characterizes the Columbian and Sun and the Clark County News as 'Two daily newspapers, published in the city of Vancouver.' Respondent's answer does not deny, but admits the truth of paragraphs one through ten, inclusive, of relator's petition. After the petition, answer, and reply, the parties entered into a stipulation and an agreed statement of the facts involved in the litigation. Paragraph five of the stipulation and agreed statement of facts sets forth the facts, as outlined hereinbefore, regarding the publication and distribution of the Clark County News under the agreement with the city of Vancouver for publication of the charter in thirty issues of the newspaper preceding the election. The pleadings, as well as the stipulation and the agreed statement of facts, are a part of the record, and are before us on this appeal. We are convinced that these raise and present to us the question of whether, under the facts stipulated, the proposed charter was published for thirty days preceding the election in two daily news papers, within the meaning of these words as used in Art. XI, § 10, of the state constitution.

The discussion which follows will be limited to the above question, as we are convinced there is no merit in any other question raised by appellant, or in respondent's motion to dismiss this appeal.

The pertinent constitutional provisions of Art. XI, § 10, and the pertinent statutory provisions of Rem.Rev.Stat. § 8953 [cf. RCW 35.22.050-35.22.100] are practically identical. In discussing the question involved in this appeal, we shall only refer to the constitutional provisions involved.

In construing constitutional, statutory, contractual, or other language or provisions of written documents, the cardinal rule of interpretation requires that the courts first determine whether the meaning of the particular language or provision is (a) unambiguous and clear, or (b) ambiguous and unclear. Some legal scholars have intimated that the process of interpretation and construction is inherent, even in the application of this primary or cardinal rule of interpretation. See Vol. 2 Horack's Sutherland, Statutes and Statutory Construction 316, (3d Ed.1943), § 4502. However that may be, the authorities are numerous in support of the proposition that interpretation is improper if the particular constitutional language or provision is clear and unambiguous. In United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 222, 75 L.Ed. 640, the court said:

'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition. * * *' (Emphasis supplied.)

The cases applying the foregoing principle of interpretation to statutes are legion. No citation of authority is requisite.

In State ex rel. Troy v. Yelle, 27 Wash.2d 99, 110, 176 P.2d 459, 465, 170 A.L.R. 1425, the question was whether the legislature could establish a commission on interstate cooperation, the members of which would be the elected state officials, who would be paid salaries as commissioners in addition to their constitutional salaries as state officials. This court referred to the very positive, clear, and unambiguous language of the state constitution, which, for example as to the superintendent of public instruction, provided in Art. III, § 22, that 'He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.' (Emphasis supplied.) The court, in recognizing the practical implications of inflation, said:

'* * * We may agree that the people, in framing the constitution, did not contemplate inflation or high prices. But the only recourse which relators have is to go to the people themselves for relief, and not to the legislature or the courts.'

In other words, the court found that the constitutional language was clear and unambiguous, and the legislation authorizing the commission on interstate cooperation and providing a special salary for state elected officials serving on the commission was invalidated. Recently, in State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 273 P.2d 464, a majority of the court determined that the pertinent constitutional provisions were clear and unambiguous, and refused to resort to interpretation and construction of such language. The two cases specifically cited above, and many others that could be mentioned and quoted at great length, are applicable only when constitutional or statutory provisions are clear and unambiguous. On the other hand, if statutory, constitutional, or other language is unclear and ambiguous, the cases are numerous wherein it is held that interpretation by the courts is quite proper. Indeed,...