State v. Superior Court for Spokane County

• Decision Date: 03 October 1912
• Citation: 126 P. 920,70 Wash. 352
• Court: Washington Supreme Court
• Parties: STATE ex rel. HINDLEY et al. v. SUPERIOR COURT FOR SPOKANE COUNTY et al.

126 P. 920

70 Wash. 352

STATE ex rel. HINDLEY et al. v. SUPERIOR COURT FOR SPOKANE COUNTY et al.

Supreme Court of Washington

October 3, 1912

Department 1. Certiorari by the State of Washington on the relation of W. J. Hindley and others against the Superior Court for Spokane County and others. Order affirmed.

H. M. Stephens, W. E. Richardson, and Ernest E Sargeant, all of Spokane, for plaintiffs.

Morrill Chester & Skuse, of Spokane, for respondents.

PER CURIAM.

The superior court of Spokane county, Wash., J. Stanley Webster judge, having issued a writ of mandate directing the commissioners of the city of Spokane to call an election giving the people of that city an opportunity to vote upon proposed charter amendments, an appeal having been taken, and a supersedeas denied ( Cooper v. Hindley, 126 P 916, decided September 28th, to which reference should be made), the defendants, the present relators, sued out a writ of certiorari to this court. Return having been made and the merits of the case being properly before us, we will consider the objections of the present relators, the commissioners, in the order in which they have been presented.

It is urged as a reason why the relators should not be compelled to call an election in accordance with the petition that the record does not show, and that the fact is, that the commissioners have not passed upon the sufficiency of the petition. This objection is without merit. Section 82 of the charter of Spokane provides that the initiative power of the people shall be exercised as follows:

'(a) Petition: A petition signed by qualified electors of the city, accompanied by the proposed legislation or measure in the form of a proposed ordinance, and requesting that such ordinance be submitted to a vote of the people, if not passed by the council shall be filed with the clerk.

'(b) Clerk's Certificate: Within two days from the filing of such petition the clerk shall certify the number of votes cast at the last general municipal election, and the number of signers of such petition, and shall present such certificate, petition and proposed ordinance to the council.

'(c) Action by Council Upon Petition: Fifteen Per Centum Petition: If such petition be signed by qualified electors in number equal to 15 per centum of the total number of votes cast at the last preceding general municipal election, the council, within 10 days after the receipt thereof, except as otherwise provided in this charter, shall either pass such ordinance without alteration, or submit it to popular vote at a special election which must be held within 30 days after the date of the ordering thereof. Provided, however, that if any other municipal election is to be held within 60 days after the filing of the petition said proposed ordinance shall be submitted without alteration to be voted upon at such election.'

It is clearly indicated by these provisions that a duty rests upon the commissioners and the city clerk. If the clerk certifies the petition to the council as sufficient in that it is signed by the requisite number of qualified electors, and no affirmative showing of consideration or rejection on that ground is made, we hold the petition to be prima facie sufficient. If it were not so, the commissioners could by mere neglect defeat a right which the people of the city have by express provision reserved to themselves. Speaking to the general law, Act 1903, c. 186, p. 393, which is in all essentials similar to the charter provision now under consideration, the court said, in Hindman v. Boyd, 42 Wash. 19, 84 P. 613: 'Some one must determine that fact, and under the statute it must lie with the council to pass upon it in the first instance. It is generally held, under similar statutes, that it is the duty of the body to whom petitions for the submission of questions to the voters are presented to carefully scrutinize, examine, and determine as to the number and qualification of the signers before putting the people to the expense of an election.' The records show that the electors' petition in this case was filed on May 22, 1912, and relators' answer in the mandamus proceeding on August 7, 1912, during which time nothing was done by the council in the way of determining the qualifications of the petitioners. But we understand from the argument of counsel that the real reason for rejecting the petition was that relators were advised that an election could not be held prior to the time fixed for the next general election which would be in December, 1913. Where it is thus manifest that the sufficiency of the petition was not a question considered by the commissioners at the time it was certified to them, but that its consideration was postponed upon other grounds, it would seem that that question should be foreclosed in a proceeding of this character.

Coming now to the main issue--that is, whether an election can be presently called--relators rely primarily upon that part of article 11, § 10, Const., which reads as follows: 'Such charter 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, and ratified by a majority of the qualified electors voting thereon.' This article has been considered by the court in a number of cases, in all of which it has been held that a city is bound by the general laws of the state, but that the purpose and intent of the Constitution was to give to cities of the first class, having the right to adopt their own charters, the fullest power in that respect, provided only that their acts shall be consistent with and subject to the Constitution and general laws. The word 'consistent' may have been inadvertently used by the framers of the Constitution. Literally it would imply that there had been either legislative or constitutional expression upon the particular subject under review. But it has been given its evident meaning and so applied by this court in many cases; that is, that a city with its own charter may legislate upon every subject not inconsistent with or hostile to the statutes or Constitution, or, as said in Bussell v. Gill, 58 Wash. 468, 108 P. 1080, 137 Am. St. Rep. 1070: 'The object of this consitutional provision was to secure to all cities complete local self-government in municipal affairs, subject only to the restrictions mentioned and charter provisions adopted under the authority so conferred should not be held invalid unless it appears that they are in direct conflict with the Constitution or laws of the state.' Walker v. Spokane, 62 Wash. 312, 113 P. 775; Hindman v. Boyd, 42 Wash. 17, 84 P. 609. With this provision and its judicial construction before it the freeholders' committee, which prepared the present charter for the city of Spokane, provided: 'Section 125. Amendment of the Charter: This charter may be amended by majority vote on such amendments. The provisions of this charter, with respect to submission of legislation to popular vote by the initiative, or by the council of its own motion, shall apply to and include the proposal, submission and adoption of amendments. The council may make further regulations for carrying out the provisions of this article, not inconsistent herewith.' See, also, paragraph 'c,' § 82, above quoted. In the light of the legislation of the past 20 years, both and municipal, and the purpose of the Constitution to give the fullest measure of self-government to cities of the first class, and especially when considered in the light of that which has gone before in the same article; that is, 'all elections in this section [Sec. 10] shall only be had upon notice * * * said elections may be general or special,' etc. To give the words 'such charter may be amended at any general election' an imperative mandatory construction would destroy or unreasonably postpone the initiative power of the people 'a power which is superior to that of the corporate authorities.' Hindman v. Byod, supra.

Our attention is called to the words of this...