State v. Denny

• Decision Date: 08 April 1892
• Parties: STATE EX REL. WIESENTHAL v. DENNY ET AL.
• Court: Washington Supreme Court

29 P. 991

4 Wash. 135

STATE EX REL. WIESENTHAL v. DENNY ET AL.

Supreme Court of Washington

April 8, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Mandamus by the state of Washington, on the relation of V. P. Wiesenthal, against D. T. Denny and others. From a judgment for respondents, relator appeals. Affirmed.

Edgar Lemman and Junius Rochester, for appellant.

Geo. Donworth, Corp. Counsel, and Battle &amp Shipley, for respondents.

STILES J.

The constitution, art. 11, § 10, provides that the freeholders' charter of any city of the first class 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, [ Wade v. City of Tacoma, (Wash. St.) 29 P. Rep.983,] and ratified by a majority of the qualified electors voting thereon." Subdivision 38, § 520, Gen. St., contains the only legislative reference to such amendment, by enumerating as among the express powers of such cities the power "to provide in their respective charters for a method to propose and adopt amendments thereto." Section 1 of article 20 of the charter of the city of Seattle is as follows: "Section 1. Any amendment or amendments to this charter may be proposed in either house of the city council, and, if the same shall be agreed to by not less than three fifths of the members of each house, such proposed amendment or amendments shall be entered upon the journal of each house, with the yeas and nays of each house thereon, and shall for ten consecutive days, excluding Sundays, beginning with five days next after the passage thereof, be published in the city official newspapers, and shall, not less than sixty nor more than ninety days after the first publication, be again submitted to each house of the city council for passage, and pursue the same course before the council and mayor as is pursued by any ordinance; and if upon such resubmission the same be agreed to again in each house by not less than three fifths of the members thereof, and be not returned by the mayor with his objections, or be passed notwithstanding his objections, by not less than two thirds of such members, such proposed amendment or amendments shall be submitted to the qualified voters of the city for their ratification at the next general election, or at a special election to be called for the purpose by the city council before such general election; and if at said election a majority of the lawful voters, voting thereat, shall by their votes ratify any amendment so submitted, the same shall become a part of the city charter, and shall, five days after such election, be by the mayor, in proclamation published in the city official newspapers, proclaimed a part thereof: provided, that if more than one amendment be submitted the same shall be submitted to the voters at said election in such manner that they may vote for or against each amendment separately, and that the city council shall cause every amendment that is to be submitted to be published for at least thirty days (excluding Sundays) next preceding such election in the city official newspapers." Section 1, art. 4, of the charter provides: "That the legislative power of the city of Seattle shall be vested in a mayor and a city council, which shall consist of two houses, namely, the board of aldermen and a house of delegates." Section 13 of said article 4 provides, among other things: "Every legislative act of said city shall be by ordinance. *** Any ordinance may originate in either house, and, when it shall have passed one house, it may be passed, amended, or rejected in the other."

In August, 1891, the said city council appointed a commission, composed of citizens and business men of said city, to frame and submit to it propositions for amending the city charter in such particulars as they might suggest; and, in accordance with such request, said propositions were framed and submitted to the council. On October 30, 1891, the said proposed amendments, numbered 1 to 19, were first proposed in the house of delegates, and proceedings were thereupon had, resulting in the passage of the same by said house of delegates. Thereafter the board of aldermen duly passed the same. Proposed amendment No. 2 is the principal subject-matter of this suit, and the same, as proposed to the city council, and as passed and published, is as follows: "Proposed amendment No. 2. A proposition to amend sections three, (3,) five, (5,) and seven. (7) of article 4 of the freeholders' charter, adopted October 1, 1890: Resolved, that section 3 of article 4 of the freeholders' charter be amended so as to read as follows: 'Sec. 3. At the general election in 1892, there shall be elected in each ward in the city one member of the board of aldermen and one member of the house of delegates. At the general election of 1892 the five members of the board of aldermen receiving the greatest number of votes shall hold office for four years, and the other four for two years, and in the case of a tie vote the length of the terms shall, at the first session, and before transacting any other business, be determined by lot. At each subsequent general municipal election, enough aldermen shall be elected from the respective wards to succeed those whose terms are about to expire, and the aldermen so elected shall hold office for four years. The members elected to the house of delegates shall each hold office two years. Each member of either house shall further hold office until his successor is elected and qualified. Each member of the city council shall have an annual salary of three hundred dollars, to be paid monthly: provided, that after the population of the city shall have reached the number of seventy-five thousand, as determined by any official census, such salary shall be the sum of six hundred dollars per annum, payable annually. A deduction of five dollars shall be made from each member's salary, who shall be absent from any meeting of his respective house, unless said member shall certify on his honor that said absence was caused by illness or unavoidable absence from the city at the time of the meeting.' Resolved, that section 5 of article 4 of the freeholders' charter be amended so as to read as follows: 'Sec. 5. No member of either house shall hold any other municipal office, or be an employe of the city or of either of said houses, or be interested in any contract with the city, or with or for any department, institution, board, officer, agent, or employe thereof. Each member, upon taking office, shall make and file in the office of the city clerk an oath that he will faithfully comply with and abide by all the requirements of this section; and the violation of any of the provisions of this section shall work a forfeiture of his membership, and warrant his expulsion from the house to which he belongs.' Resolved, that section 7 of article 4 of the freeholders' charter be amended so as to read as follows: 'Sec. 7. The house shall meet in separate chamber. A majority of either house shall constitute a quorum, but a less number may adjourn from day to day, or till the time of the next regular meeting, and may compel the attendance of absent members in such manner and under such penalties as each house shall prescribe for itself. A quorum of each of the two houses of the city council, assembled in joint convention, shall be a quorum of a joint convention of the city council."' There were nineteen of these proposed amendments, of which Nos. 4 and 17 failed to pass the second consideration of the council, and were not submitted in any form. A part of the others, without any amendment or alteration thereof being made, passed each house upon such reconsideration, while several of them, including No. 2, upon such reconsideration were amended by the council, and as amended they passed each house, and all the requirements of section 1, art. 20, were complied with in passing the same, as amended.

The fact that amendment No. 2 was amended upon such reconsideration without again having been published as is required upon the original introduction or proposal of the same in the city council, constitutes the first objection to the validity thereof, raised by the relator. Proposed amendment No. 2, as passed as amended upon such reconsideration, is as follows: "Proposed amendment No. 2 A proposition to amend sections 2, 3, 5, and 7 of article 4 of the freeholders' charter, adopted October 1, A. D. 1890. Resolved, that section 2 of article 4 be amended so as to read as follows: 'Sec. 2. The board of aldermen and the house of delegates shall each consist of as many members as there are wards in the city; one member of each house to be elected from each ward.' Resolved, that section 3 of article 4 of the freeholders' charter be amended so as to read as follows: 'Sec. 3. At the general election in 1892, there shall be elected nine members of the board of aldermen, and there shall be elected in each ward one member of the house of delegates: provided, that in case of the adoption of this proposed amendment the person receiving the highest number of votes for delegate at said general election in March, 1892, shall be entitled to qualify as said delegate.

At the general election in 1892 the five members of the board of aldermen receiving the greatest number of votes shall hold office for four years, and the others for two years, and in case of a tie vote the length of the terms shall at the first session, and before transacting any other business, be determined by lot. At each subsequent general municipal election, one delegate shall be elected from each ward, and enough aldermen shall be elected from the respective wards to...