State Ex Rel. Linn v. Superior Court

It seems to me that the method by which this case has been approached in the majority opinion and the result reached are not correct, and that the opinion injects into the case a complicated question of constitutional construction and interpretation not called for by the record before us for review.

The question to be determined is whether it is necessary that any kind of notice be given to the voters of a municipality that an amendment to a city charter will be submitted to them at the next regular municipal election when such amendment is proposed for submission by a petition of qualified voters of not less in number than fifteen per cent of the total number of votes cast at the last preceding municipal election.

We have in this state two concurrent methods by which a city charter may be amended. Section 10, of Art. XI, of the constitution, quoted in the majority opinion, provides that the "legislative authority" of a city may submit proposed amendments to the electors at any general election. Notice of such submission must be given by publication in two daily newspapers published in the city for at least thirty days prior to the day of submission. Notice of the election itself at which the amendments are to be submitted to the voters must be given for at least ten days before the day of such election. Chapter 186 of the Laws of 1903, p. 393, provides the other method and reads as follows:

"AN ACT to provide for the direct amendment of the city charters in respect to local affairs.

"Be it enacted by the Legislature of the State of Washington:

"SECTION 1. 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.

"SEC. 2. The petition containing the demand for the submission of the proposed charter amendment shall be filed with the city clerk, and each signer shall write his occupation and residence after his signature, and the genuineness of the signatures on such paper must be attested by the affidavit of a qualified voter.

"SEC. 3. . . ."

(I shall hereinafter refer to the constitutional provision as § 10 and chapter 186 of the Laws of 1903 as the act of 1903.)

It will thus be seen that, by § 10, the legislative authority of a city is given the right to submit amendments to the charter to the voters, and that, by the act of 1903, authority is given to qualified voters of a city, of a number equal to fifteen per cent of the total number of votes cast at the past preceding municipal election, to file a petition that specified amendments be submitted to the voters at the next regular municipal election occurring thirty days or more after the petition is filed. If an amendment is submitted by the legislative authority, notice of submission must be given; but if it is proposed for submission by a petition of voters, no notice of submission is required.

The language used in both § 10 and the act of 1903 is plain and unambiguous and, therefore, not open to construction or interpretation. I can see no occasion for any discussion or decision of the question whether the words "legislative authority" used in § 10 mean the ordinance enacting body of a city in existence when the constitution was adopted, or include also any other kind of legislative entity which might be thereafter created, such as the electorate under initiative and referendum charter provisions.

Section 10 is a grant of power and is in part procedural. If we assume that the words "legislative authority" of a city may mean the electorate thereof, it is quite clear that, in the very nature of things and by the operative mechanics of § 10, the electorate would not be the body that would submit to the voters a proposed amendment to a charter. This would be done by the mayor and city council. There never has been, and there is not now, any known method whereby the electorate, as a "legislative authority," can propose or submit to the electors a charter amendment. The only "legislative authority" now existing which may submit a charter amendment to the voters of Seattle is its mayor and city council. This was recognized by the legislature in § 3 of the act of 1903:

"SEC. 3. This act shall not be construed to deprive citycouncils from submitting proposed charter amendments to the voters as is now provided, but shall be held to afford a concurrent and additional method for proposing and submitting amendments to the charter of any municipality having a charter." (Italics mine.)

And when the act of 1903 was passed, the charter of Seattle had prior thereto been amended, reserving to the people, independent of the city council, the power to enact ordinances.

Although a different ultimate question for decision than we have here was before the court in Benton v. Seattle ElectricCo., 50 Wash. 156, 96 P. 1033, nevertheless it was necessary for the court to, and it did, determine that the words "legislative authority," as used in § 10 and the statutes enacted by the legislature, meant the mayor and city council, and said, p. 161:

"These latter statutes vest in the ``legislative authority' of the city power to prescribe the terms and conditions upon which electric railroads and railways may be constructed, operated, and maintained. It is maintained that the expression ``legislative authority of the city' means the mayor and city council. This contention is doubtless correct. That expression as used in § 10, art. 11, of the state constitution and in numerous statutes of the legislature, undoubtedly means the mayor and council of the city."

This definition of the words "legislative authority" was approved in Neils v. Seattle, 185 Wash. 269, 53 P.2d 848. The authorities recognize that, in the sense of the power to legislate, there may be more than one "legislative authority," but when such authority is authorized to do some act, such as the act of submission of a charter amendment to the voters, these words mean and refer to some body or agency capable of following the required procedure and putting into effect the acts and things to be done in order to get the proposed amendment before the voters. The idea was well expressed in In re Pfahler,150 Cal. 71, 89, 88 P. 270, 11 Ann. Cas. 911, 11 L.R.A. (N.S.) 1092 (cited and quoted from in the majority opinion), as follows:

"It was doubtless recognized by the framers of the constitution, as it must be by every one, that in the conduct of municipal affairs, it would be impracticable to do without the presence of a local legislative body of some kind, which should possess such powers in that behalf as might be granted to it, and that such a body would exist in every municipality. The words ``legislative authority' as here used have no greater significance than such words as ``common council or other legislative body' would have had. They were simply intended to designate theparticular body which it was recognized would exist under somename or other in every municipality as the proper official agencyto submit propositions for amendments to charters, and were not intended to define the powers of that body, or place it in a position where it would be beyond restrictions by the organic act of the city." (Italics mine.)

When a petition is filed pursuant to the act of 1903, it does not emanate from the legislative authority of the city, but from a group of qualified voters. They are by law vested with the same authority to request that charter amendments be submitted to the voters as is the mayor and city council. Section 10 and the act of 1903 are wholly independent of each other, both as to authority granted and the procedure to be followed. Under the former, notice of submission has to be given, but this is not required by the latter.

It may be said that, because, by the constitutional method of submission, at least thirty days' notice is required, this inheres in any legislation enacted on the same subject. I do not think this follows, for the giving of notice is not something relating to a substantive right, but is a procedural step only; and, further, a statute that is plain and unambiguous in its meaning cannot have carried into it a procedural requirement that is embodied in another statute or even in the constitution. Merely because one method of submitting a charter amendment requires a notice and another does not, is no reason why that part of the one should be injected into the other. If the legislature had desired that notice of submission be given, it would have so provided when it enacted the act of 1903.

The thirty-day published notice referred to in § 10 cannot apply to the act of 1903 for the reason that a petition can be filed any time up to the beginning of the thirty-day period preceding the date of the election provided for in that act; and if it be filed very close thereto such published notice could not be given. The petition would have to be checked to determine its sufficiency before the commencement of the publication, thus a substantial part of the thirty-day publication period would have been consumed.

The constitution contains no directive to the legislature that, in enacting legislation of this kind, notice of any sort shall be provided, nor is there anything in it of a prohibitive character in this respect. Under our constitutional system of state government, the legislature has the power to enact any law not in conflict with our state or Federal constitution, and it acted entirely within its powers when it did not require in the act of 1903 that notice of submission be given.

The fact that we, with our legal training and experience, may feel that, when the voters are called upon to decide whether a proposed charter amendment should be adopted, the voters should be notified by some form of publication in newspapers that an amendment was to be submitted at the coming election in order that they might inform themselves of its purpose and content so as to vote intelligently, does not justify us in either condemning a law that does not so provide or in reading into it such a requirement. The wisdom or policy of legislation relative to notice is for the legislative department to decide, and it is our duty to apply the law as we find it.

Although the act of 1903 does not require that notice of submission be given, yet I think it is fair to assume that the proper authority of any city, when a charter amendment is to be submitted to the voters, will act in the best interests of the people and cause adequate publicity to be given so that its purpose will be made known to them.

The judgment of the lower court should be reversed and the case remanded, with instruction to that court to cause the writ of mandate requested by the relator to issue.

BLAKE and ROBINSON, JJ., concur with GRADY, J.

April 10, 1944. Petition for rehearing denied.