State v. Warner

• Decision Date: 15 September 1892
• Court: Washington Supreme Court
• Parties: STATE EX REL. SNELL, PROSECUTING ATTORNEY, v. WARNER.

31 P. 25

4 Wash. 773

STATE EX REL. SNELL, PROSECUTING ATTORNEY, v. WARNER.

Supreme Court of Washington

September 15, 1892

Appeal from superior court, Pierce county; JOHN BEVERLY, Judge.

Action by the state of Washington, on the relation of W. H. Snell prosecuting attorney for Pierce county, against H. H. Warner on the ground that defendant was usurping the right to sit as councilman from the Sixth ward of the city of Tacoma. From an order sustaining a demurrer to the complaint, and a judgment entered upon plaintiff's failure to plead further plaintiff appeals. Affirmed.

W H. Snell, Pros. Atty., and Judson & Sharpstein, for appellant.

F. H. Murray, for respondent.

STILES J.

The nominal cause of action in this case is that the respondent is usurping the right to sit as a councilman from the Sixth ward of the city of Tacoma, but the real matter in issue is the question whether or not the territory included within the Sixth ward is legally a portion of that city. Since the 25th day of October, 1890, the city of Tacoma has been acting under a municipal charter adopted in pursuance of article 11, § 10, of the constitution. In April, 1891, in pursuance of section 9 of the act of March 27, 1890, (the general municipal incorporation act,) the municipal authorities held an election for the purpose of determining whether certain territory contiguous to the former boundaries of the city should be annexed. The result was in the affirmative, and a portion of the territory so annexed now constitutes the Sixth ward. Respondent was elected councilman from that ward at the regular municipal election held April 5, 1892, for the period of one year. The points of objection to his incumbency of such office are definitely stated in the fifth paragraph of the complaint, as follows: "(5) That the said proposed extension of the limits of said city was not submitted to or voted upon by the electors of said city as an amendment to the charter of said city, nor was the same published in two newspapers in said city for a period of thirty (30) days next preceding said election at which said proposition was submitted, nor was the election at which said proposition was submitted a general election in said city, and in no respect was the constitution of the state of Washington, relative to the submission of amendments to charters of cities of over twenty thousand (20,000) inhabitants, which had theretofore framed charters for their own government, or the charter of the said city relative to the submission of amendments, complied with in any respect; but that said proceedings, and all of them, were in strict and literal compliance of section nine (9) of an act of the legislature of the state of Washington entitled 'An act providing for the organization, classification, incorporation, and government of municipal corporations, and declaring an emergency,' approved March 27, 1890." The court below sustained a demurrer to the complaint, and judgment was entered upon the appellant's failure to plead further.

This complaint presents the question whether or not the enlargement of the territory of a city having a charter of the kind in question is or is not an amendment of its charter in contemplation of the constitutional provision above mentioned. Some question was made upon the argument whether, in view of this constitutional provision, it could be taken to have been the purpose of the legislature that the act of 1890 should apply to cities adopting charters for themselves: but in our judgment there can be no doubt that the intention was to make it apply to municipal corporations of every class, whether existing under special territorial charters or under the constitution and subsequent laws of the state. The intention may have been wrongly directed, but we are satisfied that it existed, and, if we were to hold the statute inapplicable, the intention must be set aside as unconstitutional. Our constitution (article 11, § 10) provides that any city containing a population of 20,000 inhabitants or more shall be permitted to frame a charter for its own government, consistent with and subject to the constitution and laws of the state. Similar provisions are contained in the constitutions of Missouri and California. Concerning this provision, we note, in the first place, that it is applicable only to a "city"-that is, a municipal corporation of the class of "city"-having a corporate existence under some charter, general or special, at the time when the self-framed charter is made. Having a corporate existence, it must have definite boundaries. In framing its charter it must do so with regard to boundaries as they exist. The city of Tacoma, for instance, was incorporated by the act of February 4, 1886, and its boundaries were therein prescribed. Whatever its charter of 1890 might have said with regard to the boundaries, the act of 1886 would have continued for all time to prescribe the limits of its territorial jurisdiction, unless some means other than those furnished by the constitution as a method of amendment were provided for their enlargement or diminution. Secondly, we note that the constitutional permission is to frame a charter for its own government. To permit the city by its own act to annex outside territory, without further legislation on the subject than is contained in the constitution, would be to extend the language of that instrument, and make it read, in effect, that a corporation might frame a charter for its own government and the government of such additional territory as it might choose to include within its limits. Therefore the provisions of the constitution with regard to the amendment of such charters could have no force without the assistance of legislation. We conclude, therefore, that the scope of the constitutional provision goes only to the extent of providing that such cities may lay aside their existing systems of municipal regulation and control, and assume others not inconsistent with the constitution and laws of the state which are more in accordance with their ideas of propriety and convenience, and that it has no relation to the subject of boundaries or territory. The legislature, acting upon such a view, has seen fit, by act of March 27, 1890, to provide by general law for the addition of territory to these and other municipal corporations. A general law was necessary upon this subject, because no special act, under the prohibitions contained in the constitution, could be passed upon that subject, since it would be covered by the provisions prohibiting the creation of municipal corporations by special acts.

Two cases have been cited to us, both very recent, and of high authority, as precedents for our action, one from California and one from Missouri. People v. City of Oakland, 92 Cal. 611, 28 P. 807, is not exactly anolagous. Counsel frankly admit as much, but claim that the reasons therein given are applicable to this case. The city of Oakland was existing under a special charter granted in 1854. In 1887, pursuant to the act of March 13, 1883, a board of freeholders was appointed to prepare a new charter in accordance with the provisions of the constitution of 1879. This board reported its draft in March, 1888, and an election was held in November of that year, at which the new charter was adopted. The new charter then went to the legislature for ratification, and was not operative until it was approved by both houses February 14, 1889. But in the mean time, and in September and October, 1888, the city and the inhabitants of outlying districts-as they had a perfect right to do under the act of March 13, 1883-voted to extend the city limits. We have, then, the people of Oakland and vicinity, on the 27th day of October, 1888, voting to enlarge the city's limits, and on the 6th day of November-only 10 days later-voting to propose for the ratification of the legislature a new charter...