Territory v. Stewart

• Decision Date: 13 February 1890
• Parties: TERRITORY EX REL. KELLY v. STEWART ET AL.
• Court: Washington Supreme Court

23 P. 405

1 Wash. 98

TERRITORY EX REL. KELLY v. STEWART ET AL.

Supreme Court of Washington

February 13, 1890

DUNBAR J., dissenting.

Fremont Campbell, Pros. Atty., C. H Hanford and Thos. Carroll, for relator.

B F. Jacobs, and Town & Likins, for respondents.

ANDERS, C.J.

This action was brought in the district court of the second judicial district of Washington Territory, holding terms at Tacoma, in and for Pierce county, to inquire and determine by what warrant or authority the appellees claim to exercise the powers of a board of trustees of the town of Puyallup, in that county, and to oust them from office as such board of trustees, and to dissolve said municipal corporation. The complaint states: "(1) That the above-named defendants at a place called 'Puyallup,' in Pierce county, Wash. T., do now unlawfully act as a municipal corporation under the name and style of the 'Town of Puyallup,' without being legally incorporated as a board of trustees of said alleged municipal corporation. (2) That said defendants act as such corporation, and exercise the powers of such board of trustees, under color of authority conferred by an order made by the judge of this court, at chambers, in the city of Tacoma, Wash. T., on the 31st day of July, A. D. 1888, and entered upon record in this court. (3) That a certified copy of the record of said order, and of the proceedings in the matter relating to the alleged incorporation of said town of Puyallup, marked 'Exhibit A,' is hereto annexed for reference, and made a part of this complaint, and a correct plat, showing the boundaries of said alleged incorporated town of Puyallup, as defined in said order, and the location of the relator's farm, hereinafter mentioned, marked 'Exhibit B,' is hereto annexed for reference, and made a part of this complaint. (4) That said order is void, and of no effect; for the same was made by the judge, aforesaid, upon the ex parte application of John Beverly, Esq., without a hearing being granted to the relator, or to any of the inhabitants, or owners of property, within the boundaries of said alleged town of Puyallup, and without any notice being given of said application; and no opportunity was at any time given to the relator, or any other person whomsoever, to remonstrate against or oppose the incorporation of said town, or to question the validity or sufficiency of the petition upon which said order was made, or to make complaint as to the boundaries of said alleged town; and no legal or good evidence was produced before the judge upon which to base the findings of fact recited in said order; and power to make said order is not judicial, and not vested in said judge by law. (5) That the relator is the owner of real property situated within the boundaries of said alleged town, as defined by said order; and he and many others, owners of property situated within said alleged town, have not consented to the incorporation of said town, and are unwilling to have said town incorporated with boundaries including their said property, for that said property is partly improved and cultivated farming land, and no part thereof is platted into town lots and streets; and they are unwilling to consent to the laying out of, and extending streets across, their said land, or to taxation of said land, by such alleged municipal corporation." To this complaint the defendants demurred for the alleged reason that the same did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and caused judgment for costs to be entered against the plaintiff.

From this judgment plaintiff appeals to this court; and we are called upon to determine the question of the legal existence of the town of Puyallup, which also involves the validity of the act of the legislature approved February 2, 1888, entitled an act "for the incorporation of towns and villages," the first section of which, so far as is material to this case, is as follows: "Where a majority of the taxable inhabitants of any town or village within this territory present a petition to the judge of the district court, having jurisdiction of real actions in such county, setting forth the metes and bounds of such town or village, together with the adjacent bounds, in all not exceeding in area one square mile, which they desire to include therein, and praying that they may be incorporated, and police established for their local government, and the judge of the district court shall be satisfied that a majority of the taxable inhabitants of such town or village, as shown by the last assessment roll of said county, shall have signed such petition, such judge of the district court shall cause such petition to be entered in full on the records of such court, together with the names of the petitioners, and shall thereupon make and record an order declaring such town or village duly incorporated, designating in such order the metes and bounds thereof, and the name of such town or village, and thenceforward the inhabitants within such metes and bounds are a body politic and corporate."

The proceedings for incorporating the town were inaugurated by the presentation to the judge of the district court, by one John Beverly, of a petition signed by 63 persons therein, representing themselves to be a majority of the taxable inhabitants of the town of Puyallup, praying that they might be incorporated under the name of the "Town of Puyallup," and police established for their local government, and that trustees be appointed for the government of said town. The petition also specified and defined the metes and bounds of the proposed territory to be incorporated, and alleged the area thereof to be in all not exceeding one square mile. On the 31st day of July, 1888, the judge of the district court, at chambers, in the city of Tacoma, in Pierce county, in response to the prayer of the petition, made and entered of record an order declaring the town of Puyallup to be duly incorporated under and by virture of the laws of Washington Territory, and in said order appointed defendants as a board of trustees of the town, in accordance with section 2 of the incorporation act.

It is admitted by the demurrer, and was conceded by counsel on the argument of this case, that the relator is the owner of real property situated within the boundaries of the territory described in the petition, and defined by order of the court; that he did not consent to the incorporation of the town; that he was unwilling to have it incorporated with boundaries including his property; that his said real estate is partly improved and cultivated farming land, not platted into town lots and streets, and that he is unwilling to consent to the laying out of and extending streets across the same; that he is unwilling to submit to taxation of his land by said municipal corporation; that no notice of the presentation of the petition was given; and that the relator had no opportunity to be heard, or to remonstrate against, or oppose the incorporation of the town, or to question the validity of the order of the judge, or to make complaint as to the boundaries of the proposed municipal corporation.

The proceedings are assailed by appellant as not being in accordance with the law relating thereto. He objects that the petition is defective in not stating that the signers thereof were a majority of the taxable inhabitants of the town, according to the last assessment roll of the county, and that the order of the judge was made upon the certificate of the county assessor who is not empowered by any law to so certify; that there was no evidence before the judge or court to warrant the order; and that the order was made without jurisdiction of the subject-matter by the court. As the law requires that the petition to be presented to the judge shall be signed by a majority of the taxable inhabitants of the town or village to be incorporated, and that the judge shall be satisfied, in some way not specified by law, that a majority of the taxable inhabitants of the town or village, as shown by the last assessment roll of the county, shall have signed the petition, it is quite doubtful whether an omission to state in the petition that the petitioners are a majority of the taxable inhabitants as shown by the last assessment roll of the county, is not a matter substantially affecting the subsequent proceedings. But, however this may be, we are not disposed to hold the incorporation invalid on that account, but will assume that the law was substantially complied with.

We now come to the consideration of validity of the law itself. The object of the act of the legislature was the incorporation of towns and villages, as expressed in the title; and, as the meaning of the expression "towns and villages" is not defined by the law, we must presume that the words were intended to be used in their ordinary acceptation, as meaning an aggregation of houses and inhabitants more or less compact. The word "town" was originally from the Anglo-Saxon word "tun," an inclosure, and meant a collection of houses inclosed by a wall. And. Dict. Law, Tit. "Town." "The fundamental idea of a municipal corporation proper, both in England and in this country, is to invest compact or dense populations with the power of local self-government. Indeed, the necessity for such corporations springs from the existence of centers or agglomerations of population, having by reason of density and numbers, local or peculiar interests and wants, not common to adjoining, sparsely settled, or...