Yesler v. City of Seattle

• Decision Date: 17 September 1890
• Parties: YESLER ET AL. v. CITY OF SEATTLE ET AL.
• Court: Washington Supreme Court

25 P. 1014

1 Wash. 308

YESLER ET AL. v. CITY OF SEATTLE ET AL.

Supreme Court of Washington

September 17, 1890

Appeal from superior court, King county.

Preston, Albertson & Donworth, for appellants.

Thomas R. Shepard, for appellees.

STILES J.

In this appeal the matter of the issuance of the same bonds which were the subject-matter of the recent case of Metcalf v City of Seattle, ante, 1010, was again in controversy the appellants seeking to enjoin the sale of the bonds to purchasers approved by the city council of the city of Seattle upon the several grounds which will be stated and discussed in order.

1. Appellants maintain that inasmuch as section 12 of the act incorporating the city of Seattle (Acts 1886, p. 244) grants power to that city to erect and maintain water-works, provided that no such works should be erected "until a majority of the voters of the city, at a general election of the city, shall vote upon the same," the special election of June 4, 1890, was an invalid election; their contention being that since the act of February 26, 1890, contains no authority to erect water-works, and the act of March 26, 1890, has no clause repealing conflicting laws, this requirement of submission at a general election still stands as the law of that corporation. But even were we to hold that there had not been a repeal of the quoted part of section 12 of the act of 1886, by reason of the rule that special acts of this class are not to be taken as repealed by general acts unless the intent to repeal is plainly apparent, it is equally apparent that the act of 1886 did not provide for the erection of water-works and the construction of sewers with the proceeds of long-time bonds, which the acts of February 26 and March 26, 1890, do. Thus a new and distinct power is conferred by a method, the main and most beneficial feature of which is the relief of the present generation of tax-payers from excessive assessments to pay cash for such public improvements; and whenever that feature is sought to be availed of, as it was in this instance, all the safeguards accompanying it must be adopted. One of these is the special election, and there was therefore no error in the proceedings on that score.

2. It is objected that the act of March 26th is invalid, because the subject is not expressed in the title. Const. art. 2, § 19. The title is "An act authorizing cities and towns to construct internal improvements, and to issue bonds therefor, and declaring an emergency," and the criticism is that although there is a subject expressed, it is not the subject treated of in the body of the act, since water-works, sewers, and artificial light plants are not "internal improvements" within the ordinary meaning of the phrase. Perhaps this is an original use of the term "internal improvements." It has certainly not been commonly applied to the improvements supposed to be made by cities for the benefit of their inhabitants, but has been employed more grandiloquently in reference to the improvement of highways and channels of travel and commerce in the statutes of congress and the state legislatures. And yet when under it our legislature particularizes water-works, sewers, and light plants, which certainly are in fact internal improvements, relatively to the cities of the state, we do not deem the verbal criticism of sufficient weight to set aside the act. The cases cited ( Railway Co. v. Colfax Co., 4 Neb. 450, and Dawson Co. v. McNamar, 10 Neb. 276, 4 N.W. 991) are not in point, since these were instances of the issuance of bonds for purposes not particularized in the statute, which was a general one authorizing counties to issue bonds in aid of railroad and other internal improvements.

3. The act of 1886, § 78, contains the usual restriction that "no ordinance shall contain more than one subject, which shall be clearly expressed in its title;" wherefore it is asserted that ordinance No. 1343 was void, because both in its title and in the subject treated of it was double, in that it provided for both water-works and sewers; and, in so far as the double subject is concerned, our judgment is with the appellants, for both in the constitution and the statute water-works and sewers are distinct things; and it would probably be better that in all cases propositions for either of these improvements, as well as for lighting systems, should be submitted either at separate elections, or separately at the same election, so that the voters might be free to adopt one system without being forced thereby to adopt the other, or to reject one without losing the other. But the restrictive clause of section 78 of the act of 1886 has no effect upon that portion of the act of March 26, 1890, which provides for submitting propositions to the voters of cities, since the latter act, by its own terms, contained in section 2, suspends the restriction. Section 2 says: "Whenever the city council or board of trustees of any such city or town shall deem it advisable that the city or town, of which they are such officers, shall exercise the authority hereby conferred upon them in relation to either or both such water-works or system of sewerage or plant or works for lighting purposes, the corporation shall provide therefor by ordinance," etc. This is a general law applicable to all incorporated cities and towns, and is to be executed in the same manner wherever it is made use of. It has become a part of the charter of each city and town, and on this subject clearly authorizes ordinances to be either single, double, or triple.

4. The next proposition in the case embraces questions of mixed law and fact. The complaint alleged that the ordinance had never been published as required by section 79 of the charter, (Act 1886;) but it was admitted at the hearing that a publication had been made, excepting that, whereas section 6 of the ordinance adopted by the council and approved by the mayor, as appeared from the clerk's official record, had provided that the proposed works should be entered upon "if three-fifths of the qualified voters of said city of Seattle voting at said election vote in favor of authorizing" the same, on the other hand the attempted publication had represented section 6 as conditioned that "if three-fifths of the voters of said city of Seattle shall, at said election, vote in favor of authorizing" the same. The answer alleged, and the court below, over appellant's objection, permitted the appellee to show, that the ordinance was passed and approved in the words of section 6, as admitted to have been published, but that through haste in procuring publication the city clerk had permitted the printer to take the original sheets of the ordinance to be used as copy for the newspaper type-setters before the ordinance had been copied into the record book; that the printer had separated the sheets, perhaps cut them up, and ultimately lost them; that the clerk had preserved one of the newspaper copies, as officially published, and from that made his copy in the ordinance record book; that some time after this, through the frequency of calls for the original ordinance by third persons, the attention of the mayor and city attorney was drawn to the fact that it had been lost, and the city attorney undertook to make a substitute original copy, which was to be signed by the mayor and clerk, dated and filed as of the date of the original, and to be, to all appearances, the original itself; that the city attorney mistook a prepared draft for an ordinance which he had in his office for a verbatim copy of the one adopted, and prepared his substituted copy from that, instead of from a printed copy; that this substitute, containing the variations noted, was signed by the mayor and clerk, and dated and filed as proposed, and was for some time treated as the true original; and that an assistant in the office of the clerk, after the substitute copy had been deposited in the files of the clerk's office, noticed the discrepancy between it and the recorded ordinance, and word "qualified," and erased the word "shall," and interlined the word "voting" in its place. The appellants' objection to proof of these facts was on the ground that the record of the ordinance could not be collaterally impeached. Dill. Mun. Corp. §§ 297-299. But we hold that this was not a case of the impeachment of a record, but merely to determine what was the record. The substitute copy made by the city attorney was certainly not a record; and no more were the interlineations and the erasure made by the unauthorized assistant clerk a part of a record. The testimony went to show these facts, and to establish what was the true record, viz., the ordinance as copied into the record book, by the clerk, from the printed copy, before the erasure and interlineations were made; and this, in our judgment, was entirely competent.

This leaves the ordinance reading: "If three-fifths of the voters of said city of Seattle shall at said election vote in favor of authorizing," etc., which it will be observed is not the language of it as presented in Metcalf v. City of Seattle, ante, 1010. Appellants therefore confidently claim that since it is admitted that there were over 4,000 persons in Seattle entitled to vote on the 4th day of June 1890, and less than 800 did in fact vote, the authority to bond the city for water-works and sewers was not granted. But under our construction of the word "voter" in Metcalf v. City of Seattle and the authorities there cited, we see no difference whatever in meaning between "if three-fifths of the voters shall vote" and "if three-fifths of the qualified voters voting vote." The word "qualified" adds nothing. Every voter is a "qualified" voter; and if a voter is one who votes, then, at an...