State ex rel. Webster v. Superior Court

Morris, J.

(dissenting) — Not being able to concur in the views of the maj ority,' I dissent; and as the question is an important one and its principles, if adhered to, determinative of rights of cities of the first class contrary to my conception of the correct interpretation of our constitution, I desire in a general way to express my reasons for such dissent.

I cannot read § 10, art. 11, of the constitution, permitting cities of the first class to frame a charter for their own government, consistent with and subject to the constitution and laws of the state, without reaching the conclusion that it was the intention of' the framers of the constitution to invest cities of the first class with the fullest powers of local self-government, intending that within itself the city should be supreme; the only limitation being that the power it sought to exercise should be “consistent with and subject to the constitution and laws of this state.” The only reasonable and sensible construction of this limitation, in view of the power sought to be conferred, is that, while the state was yielding to the city the power to exercise local self-government in all matters purely municipal in their character, the city must recognize the constitution as the supreme authority of the state and pass no law under its power of local self-government which would exempt its citizens from obedience to the general laws of the state. In other words, the state said to the city: “So long as you confine yourselves to matters purely municipal in their nature, you may frame your own government. In all other matters, in common with all citizens of the state, you must yield to the constitution and general laws.” The state, in exercising its power of general legislation for the benefit of all its citzens, reserved the power to control and govern the citizen within the city as it did the citizen without the city, to the effect that, in the exercise of its general power of government over the citizens, its laws should be uniform. The franchise under which the telephone company exercises its right within the city of Seattle was obtained from the city. Its right to be a corporation and exercise certain powers included within its charter or its franchise “to be” it derived' from the state, but the right to exercise those granted¹ powers within the city of Seattle in the manner and to the extent it sought to exercise them it obtained from the city under its franchise “to do.” The franchise from the state and the powers therein conferred were not self-executing within cities of the first class. The( legal exercise of those powers could be obtained, and obtained only, from the city under proper municipal franchise and regulation, and unless there is in that franchise some grant of power or regulation inconsistent with or in conflict with the constitution and laws of this state, the state must recognize it as a valid franchise and give effect to all its provisions.

I concede that the state cannot divest itself of its police power, and that once having delegated that power, it may again assume it and exercise it through legislative enactments. But this concession does not establish the right of the public utilities- commission to exercise powers granted by the constitution to cities. Under this concession, if the city should pass an ordinance in the exercise of its police power and the state should subsequently enact a law upon the same subject, the ordinance must yield to the extent of the conflict. But this- is not the situation confronting us. Under its constitutional authority, the city has granted a franchise fixing rates tp be charged for telephones, there is no provision of the constitution and no general law in conflict therewith. Subsequently the state created a commission to whom it delegated certain powers. In the exercise of these powers, this commission invalidates the franchise granted by the city; for if it can change that franchise in one particular, it may change it in all particulars, and thus eventually usurp every function of municipal government. I cannot consent that this may be done, nor can I yield to the announcement of any principle which holds that a commission created by and deriving its powers from the legislature can control and exercise higher powers than a city, created by and deriving its powers from the constitution. To so hold is to hold that the legislature is the supreme power of the state. I had always understood that the constitution was the supreme power of the state, to which the legislative and all other departments of the state government must yield. The rule of the majority, if carried to its logical conclusion, means at any time the legislature may so determine, it can establish a commission, exercising every function of municipal government, and deprive all cities of this state of their constitutional birthright; a situation so abhorrent to my mind that I cannot permit its announcement without an expression of dissent.

The purpose of this constitutional provision was undoubtedly the conception that the cities could best rule themselves because they best knew their own needs and the best method to fully supply those needs so as to measure up to the greatest good of its citizens. As now written, the legislators from the rural sections of the state, without experience in the vexing and complicated problems of municipal' government, may, because they are in the majority in the legislature, change the whole conception and plan of municipal government as formulated out of the experience of the dweller in the city. This to my mind was the very evil the constitution sought to guard against. If the rule of the majority be the law, our constitution-created municipalities have now no greater power, and stand in no different light, from like municipalities in those states where cities are created by special or general laws, subject at all times to legislative control, notwithstanding the expression of such a strong constitutional intent to place them upon a higher plane. And this is to be done, not by the legislature itself under the guise of some general or special law, but under a delegation of power to a subordinate commission. If the legislature may do this in one phase of constitutional authority, it may do it in another, and thus the legislature becomes in all respects, as by this decision it does in municipal matters, the constitution of the state. Surely it was intended by the language of our constitution relative to cities of the first class that they should stand upon a different plane from those of a lower class, organized and controlled by general law. Yet if this decision be the law, I should like to have the distinction pointed out and the plane bounded, as I can see no distinction between the city of the first class exercising its powers under express constitutional authority, and the cities of the second, third, and fourth classes, created by general law, if all alike are to be subject in all things to legislative control. In the cases from this state, cited by the majority in support of their position, some general- statutory provision has been found conflicting with the ordinance or charter provision there under discussion. As is said in Ewing v. Seattle, 55 Wash. 229, 104 Pac. 259, the last expression of this court, relied upon by the majority:

“This court has repeatedly and uniformly held that where the legislature has enacted laws relating to such cities, or to the powers and duties of their officers, such laws supersede charter provisions in conflict therewith.”

I can readily admit at the outset of this dissent, that the charter or ordinances must yield to the general law; but as I view it, there is here no general law on the same subject that conflicts with this franchise. All there is, and all that can be claimed there is, is an attempt on the part of the legislature to creat a subordinate branch of the state government, invested with a power to inquire into the reasonableness of the rates of public service corporations. If the legislature should pass a law fixing a maximum and minimum rate, then the cases cited by the majority would be in point. It has, however, not attempted to do so. Nowhere in the law can there be found any expression in conflict with what the city of Seattle has done under its grant of franchise to this telephone company; and until such a law can be found, I must protest against any subordinate branch of the state government exercising powers within cities of the first class that by the constitution have been conferred on the cities themselves. To magnify an order of the public service commission into a law of the state within the meaning of this constitutional phrase is, to my mind, beyond the power of courts or legislatures. The constitution cannot thus be amended nor its express provisions abrogated.

Much is said in the main opinion that full control of public service corporations is within the police power of the state, and that the surrender of this control to a properly constituted commission, subject to a judicial review, is a lawful exercise of legislative authority. As an abstract legal proposition, that may be readily admitted; but as is said by Peckham, J., in People v. Gillson, 109 N. Y. 389, 400, 17 N. E. 343, 1 Am. St. 465, the police power is not above the constitution, but is bounded by its provisions, and when any right or franchise is expressly protected by any constitutional provision, it cannot be destroyed nor its validity impaired by the legislature under any valid exercise of the police power. To my mind, this is the fundamental- principle here involved.

Eor these reasons, I dissent.

Ellis, J., concurs with Morris, J.