State Ex Rel. Billington v. Sinclair , 28 Wash. 2d 575 ( 1947 )

I agree with counsel for appellants that the ordinance proposed is invalid, in view of the fact that it would require abandonment by the city of Vancouver of the commission form of government prior to the expiration of six years from the date of adoption of that form of government. That this is violative of the statute (Rem. Rev. Stat., § 9112) is patent. The obvious purpose of the six-year limitation is to prevent rapid and recurrent fluctuations in the governmental organization of cities. InState ex rel. Alexander v. Evanson, 64 N.D. 603, 255 N.W. 98, it is observed respecting a similar provision in the laws of North Dakota,

"It will be noted that the lawmakers provided that as a prerequisite to the right to petition for such election the city must have operated under the commission plan of government for at least six years. The lawmakers deemed it wise to provide that where the commission plan was adopted it must have a fair trial."

See, also, Meier v. City Council of Boise City, 43 Idaho 693,254 P. 221. The provisions of the statutes (Rem. Rev. Stat., §§ 9090-9113 [P.P.C. §§ 392-1 to 392-47]) for the adoption, operation, and abandonment of the commission form of government are specific. To adopt a freeholders' charter and to organize Vancouver as a city of the first class would be an abandonment of the commission form of government. In framing the charter under Art. XI, § 10, of the state constitution and the statute (Rem. Rev. Stat., § 8953) the elected freeholders would not be obligated to adopt any particular form of government; they could provide for a commission form or some other form of city government. Nevertheless, if a commission form of government were adopted and followed the pattern provided by present statutory provisions for the commission form of government, the charter would create a new and different form of government.

Rem. Rev. Stat., § 8948 [P.P.C. § 367-19], provides the form of organization and the manner and mode in which cities of the first class shall exercise the powers which are given by law to such cities. Under the foregoing provision and other applicable statutes the powers of the city would be those prescribed for cities of the first class (Rem. Rev. Stat., § 8966 [P.P.C. § 364-11]) rather than those prescribed by Rem. Rev. Stat., § 9034 [P.P.C. § 379-57], for cities of the second class as obtains at present. See Rem. Rev. Stat., §§ 9093, 9100 [P.P.C. § 392-21, -7].

By adoption of a charter as a city of the first class Vancouver would unequivocally abandon its present statutory commission form of government,

". . . but when a new charter is adopted, materially changing the former municipal organization, usually the old charter provisions in whatever form existing become inapplicable to the new government, especially when they are inconsistent or out of harmony with the new organization. Therefore, the general rule is that the adoption of a new charter abrogates or repeals the former one. . . ."

1 McQuillin, Municipal Corporations (2d ed., rev. 1940) 460, § 156.

I cannot agree that the people of a city containing twenty thousand or more residents have a constitutional right to frame a charter for their own government, which right cannot be restricted or limited in any manner by the legislature. The constitutional provision (Art. XI, § 10, state constitution) is clear and express in its direction to the legislature to provide by general laws for the incorporation, organization, and classification in proportion to population of cities and towns which laws may be altered, amended, or repealed.

That section further provides that cities or towns heretofore or hereafter organized and all charters thereof framed or adopted by the authority of the constitution shall be subject to and controlled by general laws. The constitutional provision cited is not self-executing, and the legislature has a broad reserved power of control which it exercises, subject only to the limitation that it must act by general rather than by special laws. In re Cloherty, 2 Wn. 137, 144, 27 P. 1064; State exrel. Snell v. Warner, 4 Wn. 773, 31 P. 25, 17 L.R.A. 263;State ex rel. Fawcett v. Superior Court, 14 Wn. 604,45 P. 23, 33 L.R.A. 674; State ex rel. Seattle v. Carson, 6 Wn. 250,33 P. 428; Dalton v. Clarke, 18 Wn.2d 322,139 P.2d 291.

We recently held that, so long as the legislature acts by general laws rather than special laws, its acts will supersede and modify the provisions of existing charters to the extent that they are in conflict with the statute. Martin v. Tollefson,24 Wn.2d 211, 163 P.2d 594, and Oakwood Co. v. TacomaMausoleum Ass'n, 22 Wn.2d 692, 157 P.2d 595,161 P.2d 193.

The constitution is clear, as are our opinions interpreting the pertinent provisions of the constitution, that the power reserved to the legislature is broad and comprehensive and grants to the legislature the authority to impose reasonable restrictions in the matter of procedure in the adoption, revision, and amendment of charters of municipal corporations. A reasonable restriction is the six-year-trial period required by Rem. Rev. Stat., § 9112, for cities which have adopted the statutory commission form of government.

The judgment should be reversed with instructions to dismiss the action.