State ex rel. Thorp v. Devin, 30071.

• Decision Date: 07 November 1946
• Docket Number: 30071.
• Citation: 173 P.2d 994,26 Wn.2d 333
• Parties: STATE ex rel. THORP v. DEVIN, Mayor of Seattle, et al.
• Court: Washington Supreme Court

173 P.2d 994

26 Wn.2d 333

STATE ex rel. THORP v. DEVIN, Mayor of Seattle, et al.

No. 30071.

Supreme Court of Washington

November 7, 1946

Department 2

Mandamus proceeding by the State of Washington, on the relation of Eugene Thorp, against William F. Devin, Mayor of Seattle, and others, to compel the Mayor and others to put into immediate operation the provisions of an initiative ordinance reducing the hours of work of Seattle city firemen. From a judgment of dismissal, the relator appeals.

Affirmed.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Erle W Horswill, of Seattle, for appellant.

A. C Van Soelen and J. Ambler Newton, both of Seattle, for respondents.

STEINERT Justice.

This is an appeal from a judgment dismissing a petition for a writ of mandate which, if it had been granted, would have compelled the city of Seattle, its mayor, and fire chief to put into immediate operation the provisions of an initiative ordinance reducing the hours of work of Seattle city firemen, but prohibiting any reduction in their existing salaries.

The initiative ordinance reads as here set forth in full:

'An Initiative Measure

'To the Honorable Mayor and City Council of the City of Seattle:

'The undersigned voters of Seattle, King County, Washington, hereby propose and request the enactment of an ordinance as follows:

'Ordinance No. (74805)

'An Ordinance providing for a forty-eight hour week for members of the uniformed force of the Seattle Fire Department.

'Be it ordained by the City of Seattle as follows:

'Section 1. No member of the uniformed force of the Fire Department shall be required to be on duty more than 48 hours in any one week, except in case of a fire emergency; provided, that an arrangement may be made whereby the hours of duty for such members when averaged over each consecutive fifty-two weeks shall not be more than at the rate of 48 hours per week.

'Section 2. No reduction shall be made in the existing salaries of such members of reason of the enactment of this ordinance.'

The proposed ordinance was duly and regularly prepared and submitted to the voters of Seattle under the provisions of the city charter which was then in force, and which will hereinafter be referred to as the old charter.

At a regular municipal election held March 12, 1946, the initiative measure received the requisite majority of votes in its favor, as shown by the return of the canvassing board made March 21st, and on March 26th the acting mayor issued a proclamation declaring the measure to be in full force and effect as an ordinance of the city of Seattle, as required by the provisions of the old charter as well as by the terms of the new charter, to both of which more specific reference will presently be made.

At that same election, held March 12, 1946, the voters of Seattle duly and regularly adopted a new charter, which differed from the old one in certain respects material to the present controversy. The old charter contained a provision, Art. IV, § 1 (paragraph 7), reading as follows:

'Any measure [initiative] thus submitted to the vote of the people, which shall receive in its favor a majority of all the votes cast for and against the same, shall become an ordinance of the City of Seattle, and be in full force and effect from and after proclamation by the mayor, which shall be made, and published in the city official newspaper, within five (5) days after the election.' (Italics ours.)

The new charter contained this same provision, in Art. IV, § 1F, but with this proviso:

'Provided that if such adopted ordinance contemplates any expenditure which is not included in the current budget, or which is not to be paid from an existing bond issue, or which eliminates or reduces an existing revenue; such expenditure or elimination shall not be lawful until after the next succeeding budget shall take effect; Provided, further that the above restriction shall not be operative when less than twenty thousand dollars is involved.' (Italics ours.)

In this case, no question of payment 'from an existing bond issue' and no question of an expenditure which will eliminate or reduce 'an existing revenue' are involved, but only a question relating to an expenditure 'which is not included in the current budget.'

The election board duly canvassed the votes cast with reference to the new charter and certified the result thereof on March 21, 1946, the same day on which the canvass and return were made with respect to the initiative measure.

Thereafter, on April 29, 1946, the city council of Seattle passed ordinance number 74925, which was approved by the mayor on May 1st. That ordinance, after referring to the adoption of the initiative measure set forth above, recited various reasons why the working conditions, the expenditures required thereby, and the present budgetary restrictions contemplated by the measure made it impossible to put that measure immediately into operation, and then ordained that the chief of the fire department take the necessary steps to place the uniformed fire force on a forty-eight hour work week on January 1, 1947, and in the meantime to recruit and train additional firemen necessary and sufficient to accomplish the purpose and object of the initiative measure.

Prior to the adoption of the initiative ordinance, the hours and wages of the city firemen had been based on a seventy-two hour work week, under what is termed a two-platoon system. That system and schedule have been maintained by the municipal authorities continuously ever since, despite the adoption of the initiative measure. Respondents predicate their refusal, or rather failure, to put the initiative measure into immediate operation on two alternative grounds, as recited in the later ordinance number 74925: (1) that to use the present force on a forty-eight hour work week basis would create a seriously dangerous condition of fire protection; and (2) that if the initiative ordinance were put into immediate operation it would require the creation of a three-platoon system together with the expenditure therefor of approximately $400,000 during the remainder of the year 1946, such amount not being included in the current budget and for which no provision could presently be made.

Appellant concedes that if the matter of expenditures for an additional quota of firemen can be considered relevant to the present issue, the amount necessary therefor would exceed $20,000. The new charter provides that any expenditure in excess of that amount which is not included in the current budget shall not be lawful until the next succeeding budget shall be in effect.

Two questions are presented upon the appeal. The first question is whether the operative effect of the initiative measure is determined and governed by the old charter or, on the contrary, by the new charter. Appellant contends that the old charter is controlling in that respect, and that the new charter was intended to operate only upon new initiatives arising by petition filed after the effective date, and under the authority, of the new charter. He argues that any other construction of the new charter would give it a retroactive effect, antagonistic to the rule of statutory construction that a statute is presumed to operate prospectively only and will not be given a retroactive effect unless, by its terms, it shows clearly that such was the legislative intent. Respondents take the opposite position, contending that upon the adoption of the new charter it became the entire organic law of the city and therefore superseded the old charter with respect to the matter here involved, and that, by virtue of the prior effective date of the new charter, its operation is in fact and law altogether prospective and in no sense retroactive.

As stated above, the election, both upon the new charter and upon the initiative measure, was held on March 12, 1946, that is to say, the voting on both propositions took place on that day; on March 21st the election board canvassed the vote and certified the results as to both of those matters; and on March 26th, the acting mayor of Seattle issued his proclamation relative to the adoption of the initiative measure, as required by the express terms of both charters.

Article XI, § 10, of the state constitution, relating to the incorporation of municipalities and adoption of charters therefor, provides:

'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 any existing charter, including amendments thereto, and all special laws inconsistent with such charter.' (Italics ours.)

Rem.Rev.Stat. §§ 8953, 8954, enacted in 1890 and implementing the constitution, provide for the framing of charters by fifteen freeholders previously elected and for the submission of charters so framed to the qualified voters of the city at an election duly called and held for that purpose.

Rem.Rev.Stat. § 8955, Ch. 137, § 1, Laws of 1925, Ex.Ses., now Rem.Supp.1945, § 8955, relates to the revision of charters by altering, changing, revising, adding to, or repealing previously existing charters, and provides for submitting such new charters to the qualified electors of the city for ratification or rejection.

Rem.Rev.Stat., § 8956, Ch. 137, § 2, Laws of 1925, Ex.Ses., provides that such new or revised charter shall be submitted to the qualified electors of the 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 any existing...