Walker v. City of Spokane

Decision Date03 March 1911
Citation62 Wash. 312,113 P. 775
CourtWashington Supreme Court

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by F. J. Walker against the City of Spokane and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Turner & Geraghty, for appellant.

Fred B Morrill, Burcham & Blair, and H. M. Stephens, for respondents.


The only question in this case arises on the complaint, the defendant having filed a demurrer to the complaint, as well as an answer, and the parties having stipulated in open court that the answer be not taken as waiving the demurrer, and that the court might render judgment on the pleadings as they stood. Plaintiff consented to this method of disposition because the answer failed to deny any material allegation of the complaint. The demurrer to the complaint was sustained and from the judgment following, this appeal is taken.

The complaint, in brief, is to the effect that an election was held on the 27th day of September, 1910, by the qualified electors of the city of Spokane, at which were chosen 15 freeholders to prepare a new charter, and that on the 11th day of November, 1910, said body of freeholders filed with the clerk of said city the so-called new charter. The charter is set forth in the complaint and made a part of the same. It is alleged that the so-called charter undertakes to, and does in substance and in fact, abolish the office of mayor of the city of Spokane and the council of the city of Spokane, and undertakes to substitute in place of said mayor and council five commissioners, in whom is reposed all municipal power, both legislative and executive; also abolishes the provisions of the city charter in force, providing for the election by the qualified electors of the city of the mayor and council; and also undertakes to abolish and do away with the provisions of the charter then and theretofore in effect, dividing the municipal power of the city between legislative and executive departments, each independent of the other; all of which, it is alleged, is contrary to the laws of the state of Washington. Many other allegations are made in the complaint, but these are sufficient to raise the questions discussed. The prayer was for a restraining order, to prevent the calling, advertising, and holding of an election for the election of the commissioners provided for in the charter, and to prevent the abdication of the officers now in power. The charter provides that all the power in the city, unless otherwise provided by the charter, shall be exercised by, through, and under the direction of five commissioners, who shall constitute the council, and one of whom shall be mayor, and that the commissioners and council shall be subject to the order and direction of the people at all times by the initiative, referendum, and recall provided for in the charter. It provides that each commissioner shall be entitled to a vote; that the mayor shall not have any veto power; and that the executive and administrative powers, authority, and duties, not otherwise provided therein, shall be distributed among five departments, as follows: Department of public affairs; department of finance; department of public safety; department of public works; and department of public utilities; that such distribution among the various departments shall be made and may be changed by ordinance; that the council shall prescribe the powers of the officers and employés, etc. These provisions, we think, are sufficient to present the case.

The main contention of the appellant, as we understand it, is that, section 6 of the act of 1889-90, p. 223, which is section 740 of Ballinger's Ann. Code & St. (Pierce's Code, § 3733), and which act provided for the government of cities of the first class, provided for a system of government which contemplated an executive and a legislative department, the mayor to be invested with certain executive powers separate and distinct from the powers conferred upon the council, and that the charter under discussion violates this provision of the law by merging the executive and the legislative powers of the city officers, thereby stripping the executive head--the mayor--of any distinct, executive powers. It may be conceded from the outset that, while cities of the first class have the constitutional right to frame their own charters, the charters so framed are subject to and controlled by general laws. Section 10, art. 11, Const. Wash. And this is all the constitutional limitation that there is. So that it becomes our duty to see if any of the provisions of the charter are in contravention of any legislative enactment.

That portion of section 6 of the act of 1889-90 pertinent to this inquiry is as follows: 'The legislative powers of any city organized under the provisions of this act shall be vested in a mayor and a city council, to consist of such number of members and to have such powers as may be provided for in its charter, who, together with such other elective officers as may be provided for in such charter, shall be elected at the times, in such manner and for such terms, and shall perform such duties and receive such compensation, as may be prescribed by such charter.' Section 7 of the same act (Ballinger's Ann. Codes & St. § 741 [Pierce's Code, § 3734]), is as follows: 'Any city adopting a charter under the provisions of this act shall have all the powers which are now or may hereafter be conferred upon incorporated towns and cities by the laws of this state, and all such powers as are usually exercised by municipal corporations of like character and degree, whether the same shall be specifically enumerated in this act or not.'

Section 1 of chapter 186 of the Laws of 1903, page 393, an act providing for direct amendments of city charters, is as follows: 'On petition of a number (equal to fifteen per cent. of the total number of votes cast at the last preceding municipal election) of qualified voters of any municipality having adopted a charter under the laws of this state, asking the adoption of a specified charter amendment, providing for any matter within the realm of local affairs or municipal business, the said amendment shall be submitted to the voters at the next regular municipal election, occurring thirty days or more after said petition is filed, and if approved by a majority of the local electors of the municipality voting upon it, such amendment shall become a part of the charter organic law governing such municipality.'

It is contended by the respondents that this section repeals section 740 of Ballinger's Ann. Codes & St., and that it has been so decided by this court in Hindman v. Boyd, 42 Wash. 17, 84 P. 609, and in Hartig v. Seattle, 53 Wash. 432, 102 P. 408. It is insisted by the learned counsel for appellant that the language used in the latter case, to the effect that Hindman v. Boyd held that the act of 1903 repealed by implication section 740, supra, was too broad, and upon further examination and reflection we are compelled to admit the justice of the criticism. But notwithstanding this, it is obvious that the rationale of the decision in Hindman v. Boyd was to hold section 740 repealed to the extent of granting larger and more extensive powers to the city government, and that the limitation in the former law, to the effect that the legislative powers should be vested in a mayor and a city council, had been modified. Speaking to this question, the court said: 'It is practically conceded by appellants that, if the statute, section 740, supra, were not in existence, it would lie with the people to discharge legislative functions. It is contended, however, that the statute is in full force, and that it is prohibitive of legislation in any manner except by the mayor and council. It is argued that the act of 1903 in no way affects the provisions of said section 740. It is true the act does not refer to the former statute; but if it reaches the same subject, it should be held to affect the older statute, in so far as it treats of the same subject. The later act provides that charters may be amended in the manner outlined, 'providing for any matter within the realm of local affairs or municipal business.' The terms could not be broader, and, if the former statute can be said to have vested the power to legislate with respect to franchises exclusively in the mayor and council, the later one authorizes the people to reserve that power to themselves, since they may amend the charter providing for any matter 'within the realm of local affairs.''

Under this decision and the broad powers conferred by the statute which was held to apply, it cannot be contended that the charter provisions complained of in this case go beyond the realms of local affairs or municipal business. It is however, contended by the appellant that the phraseology employed should, in the interest of moderation, receive judicial construction; that it is the duty of courts to construe legislative acts so as to effectuate legislative intention; to confine broad language, going beyond legislative intention, within narrow limits; and to extend language not coming fully up to the legislative intention to a broader application, in order that the will of the lawmaking power may be effectuated. Undoubtedly, it is true that the central idea should be to effectuate the legislative intention. But to discover that intention is a difficult proposition. It seems to us that the canons of construction recommended by the learned counsel are so flexible, and the powers conferred upon the court so unhampered, that there would be great danger that the intent of the Legislature would too frequently be found to be simply a...

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    • United States State Supreme Court of Washington
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    ...or inferentially prohibited by our state constitution, the constitution being a limitation, not a grant of power. Walker v. Spokane, 62 Wash. 312, 113 P. 775, Ann.Cas.1912C, 994; State ex rel. Mountain Timber Co. Superior Court, 77 Wash. 585, 137 P. 994; Standard Oil Co. v. Graves, 94 Wash.......
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