Brown v. City of Cle Elum , 145 Wash. 588 ( 1927 )

ON REHEARING. This case was originally heard before Department Two of this court, and the opinion written appears in 143 Wash. 606,255 P. 961, to which reference is made for the facts upon which the action is based. That opinion contains the following statement:

"There looms in the horizon of this controversy a question of far-reaching importance; that is, as to whether or not the legislature can constitutionally delegate to a city authority to exercise police power beyond its territorial limits and outside the boundaries of property it may own beyond its territorial limits, by the passing and enforcing of ordinances assuming to regulate the conduct of citizens beyond such limits and boundaries. No argument has been presented to us here touching that question, and we purposely refrain from expressing any views thereon. The city's power is here challenged only upon the two grounds we have noticed, (1) the United States ownership of the lands and waters, and (2) the reasonableness of the ordinance. No other question is here decided."

Upon a re-argument of the case before the court En Banc, the question referred to in the foregoing quotation was presented to the court, and after such presentation, we are of the opinion that the ordinance in question is unconstitutional.

The ordinance provides for the punishment of persons who shall commit certain proscribed acts on property situated six miles beyond the corporate limits of the city of Cle Elum. The validity of the ordinance is attempted to be sustained under §§ 9127 and 9473 of Rem. Comp. Stat., which purport to give to the city the power to pass such an ordinance. Those sections of the code can have no validity, however, in view of the constitutional provision, Article XI, § 11, which provides that —

"Any county, city, town or township, may make and enforcewithin its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." (Italics ours.)

This delegation of its police power by the state to various municipalities is strictly limited to the exercise of that powerwithin the limits of such municipalities. Authorities are cited to the effect that the state, by legislative enactment, might delegate its police power to various municipalities to be exercised beyond their limits, but those authorities will be found to have not arisen where a constitutional provision obtains such as the one existing in this state. In order for the appellant in this case to pass a valid ordinance under the sections of the code relied on, it would be necessary for the court to read out of the constitutional provision the words, "within its limits," and no case has been cited to us, and we have been unable to find one, where legislation similar to that here under consideration has been sustained where there also existed a constitutional provision such as ours.

The constitution of California contains a provision (also Article XI, § 11 of that constitution) identical with the similarly-numbered section of the constitution of the state of Washington, and the courts of California have held that the power conferred was limited to the corporate boundaries of the municipalities where it could be exercised in a manner not in conflict with the general laws of the state. Odd Fellows'Cemetery Ass'n v. City County of San Francisco, 140 Cal. 226,73 P. 987; Ex parte Murphy, 8 Cal. App. 440, 97 P. 199;Boyd v. City of Sierra Madre, 41 Cal. App. 520, 183 P. 230.

This court, in Detamore v. Hindley, 83 Wash. 322,145 P. 462, referring to this constitutional provision, said —

"This is a direct delegation of the police power as amplewithin its limits as that possessed by the legislature itself." (Italics ours.)

The municipalities having only such legislative powers as are delegated to them, and the delegation by the constitution containing a limitation as to the extent of that power, the legislature is not empowered to exceed that limitation. It therefore must follow that the Departmental decision be set aside and the judgment of the trial court affirmed.

The effect of holding this ordinance invalid will not be, of course, to render the municipalities powerless to protect property owned by them outside of their corporate limits from interference. The law provides several ways in which that protection can be secured; but, without a constitutional amendment, penal ordinances such as the one under consideration here can not be given extraterritorial effect.

Judgment affirmed.