State v. Tausick

• Decision Date: 07 July 1911
• Citation: 64 Wash. 69,116 P. 651
• Parties: STATE ex rel. HUNT et al. v. TAUSICK, Mayor.
• Court: Washington Supreme Court

116 P. 651

64 Wash. 69

STATE ex rel. HUNT et al. v. TAUSICK, Mayor.

Supreme Court of Washington, En Banc.

July 7, 1911

Appeal from Superior Court, Walla Walla County; Thos. H. Brents Judge.

Mandamus by the State, on the relation of Gilbert Hunt and others against Eugene Tausick, as Mayor of the City of Walla Walla. Judgment for relators, and defendant appeals. Affirmed.

Since Laws 1911, c. 116, providing for the reorganization of certain cities under a commission form of government, was an act complete in itself and did not attempt to amend, modify or change any pre-existing law, but provided that all existing laws governing cities of the second class or applicable thereto, not inconsistent to the provisions of the act, should apply to cities organized thereunder, and that all elections in such cities, etc., should be conducted as provided by law for election of officers in such cities, so far as the same was applicable and not inconsistent with the provisions of the act, it was not violative of Const. art. 2 § 37, providing that no act shall be revised or amended by mere reference to its title.

Sharpstein & Sharpstein and T. P. & C. C. Gose, for appellant.

Edward C. Mills, J. C. Hurspool, and Rader & Barker, for respondents.

CROW J.

Action in mandamus to compel Eugene Tausick, mayor of Walla Walla, to call an election under section 2, chapter 116, p. 521, Sess. Laws 1911. An alternative writ was issued. The mayor's motion to quash was denied. A peremptory writ was granted, and the mayor has appealed.

Appellant's sole contention is the act in question is unconstitutional and void. It is entitled, 'An act relating to the organization, classification, incorporation, and government of municipal corporations, under a commission, and declaring an emergency.' It has been ably reviewed and discussed in the briefs, and we will call attention to some of its features.

Section 1 provides that any city, now or hereafter having a population of 2,500 and less than 20,000, as shown by the last state or federal census or by any special census taken by the city in the manner provided by law, may become organized as a city under the provisions of this act. It is conceded that Walla Walla has a population of 19,364, as shown by the last federal census.

Section 2 provides that, upon the petition of electors equal in number to 25 per centum of the votes cast for all candidates for mayor at the last preceding election, the mayor shall submit the question of organization of the city at a special election, and that, if a majority of the votes cast favor the proposition, the city shall proceed to the election of a mayor and two commissioners.

Section 4 provides that all existing laws governing cities of the second class or applicable thereto, not inconsistent with the provisions of this act, shall apply to and govern cities organized under this act; that all existing by-laws, ordinances, and resolutions of the city shall remain in force until altered or repealed under the provisions of this act; that territorial limits shall remain the same; and that all property rights and other rights shall continue and be protected.

Section 7 provides for the nomination of candidates for mayor and commissioners at a primary election, nonpartisan in character, for petitions for nominations, the publication of names of candidates, the form of ballot, the method of voting, the classification of voters, the canvass of votes, and publication of the result; that the two candidates receiving the highest number of votes for mayor and the four candidates receiving the highest number of votes for commissioners shall be placed upon the ballot as the candidates for mayor and commissioners, at the general municipal election, and that the method of conducting the election, cavassing votes, and announcing the result shall be the same as by law provided for the election of officers in such cities, as far as the same are applicable and not inconsistent with this act.

Section 10 provides that each member of the commission shall have the right to vote on all questions; that two members shall constitute a quorum; that two affirmative votes shall be necessary to adopt any motion, resolution, or ordinance; that ayes and nays are to be called and recorded; and that the mayor shall preside, but shall have no right of veto.

Section 11 reads as follows:

'Cities organized under the provisions of this act shall have all the powers which cities of the second class now have, or hereafter may have conferred upon them; all which said powers shall inhere in and be exercised by the commission provided for in this act. The executive and administrative powers, authority and duties in such cities under commission, shall be distributed into and among three departments, as follows:

'I. Department of public safety.

'II. Department of finance and accounting.

'III. Department of streets and public improvements.

'The commission shall determine by ordinance the powers and duties to be performed in each department; shall prescribe the powers and duties of officers and employees; may assign particular officers and employees to one or more of the departments; may require an officer or employee to perform duties in two or more departments, and may make such other rules and regulations as they may deem necessary or proper for the efficient and economical conduct of the business of the city.'

Section 12 provides that the mayor shall be superintendent of the department of public safety; that the two commissioners shall be assigned to the remaining departments, and that the commission shall by majority vote appoint a clerk and such other officers and assistants as shall be provided by ordinance. By other sections the chapter fixes the compensation of the commissioners according to population, provides for regular meetings, for the method of passing ordinances or resolutions relative to public improvements, public works, and the granting of franchises; provides for the recall of elective officers, and for the initiative and referendum.

Appellant's controlling contention is that this act is in conflict with subdivision 8, § 28, art. 2, and also section 10, art. 11, of the state Constitution. The former provides that:

'The Legislature is prohibited from enacting any private or special laws in the following cases: * * *

'8. For incorporating any town or village, or to amend the charter thereof. * * *' The latter provides that: 'Corporations for municipal purposes shall not be created by special laws; but the Legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed. * * *'

In 1890 municipal corporations in this state having less than 20,000 population were, by statute, classified as follows: Those having less than 20,000 and more than 10,000, as cities of the second class; those having less than 10,000 and more than 1,500, as cities of the third class; and those having not more than 1,500 nor less than 300, as towns. Rem. & Bal. Code, §§ 7479, 7480. For the general laws relating to the organization, powers, and government of cities of the second class, see Rem. & Bal. Code, §§ 7584-7670. For those pertaining to cities of the third class, see Rem. & Bal. Code, §§ 7671-7718. The act now in question authorizes all cities of the population of cities of the second class, and a portion of the cities of the third class, to adopt the commission form of government. No city of the third class having less than 2,500 population can avail itself of its provisions. The entire act shows that cities exercising their option to thus organize are to have a governing body, consisting of a mayor and two commissioners, known as a commission, supplemented by a city clerk and such other subordinate officers and employés as may be provided by ordinance, and are to have and enjoy all powers and privileges of cities of the second class, not inconsistent with the commission act. A new classification is thus created of all municipal corporations within this state which have a population of 2,500 and less than 20,000. Although the act, by a novel system of procedure, authorizes the adoption of a commission form of government by existing cities having a population within specified limits, it neither contemplates, nor does it require, any material change in their municipal functions. On the contrary, it only affects the instrument-alities through which such functions are to be exercised. Although cities of the third class having more than 2,500 population, electing to organize under this act, will thereafter be subject to all existing general laws governing cities of the second class, or applicable thereto and not inconsistent with this act, no lack of uniformity of operation of the law results therefrom, as all cities of the third class having the same population may, at their option, avail themselves of the same privileges and rights.

If we correctly grasp appellant's first contention, it is, as before stated, that the act violates subdivision 8 of section 28, art. 2, of the state Constitution, in that it is a private or special statute providing for the incorporation of cities; that its proposed application is restricted to certain cities; and that it might in fact be restricted to a single city, should all others refuse to avail themselves of its benefits. The clause of the Constitution thus cited was not intended to prohibit the enactment of a statute, such as the one now assailed, which is general in its terms and applicable to all cities within this state having a population of 2,500 and less than 20,000.

We take judicial notice of the fact that...