Burns v. Alderson

322 P.2d 763, 51 Wash. 2d 810, 1958 Wash. LEXIS 503

• Court: Washington Supreme Court
• Decided: February 28, 1958
• Docket: 34546
• Status: Published

Opinions

Foster, J.

We reverse the dismissal of this declaratory judgment action (RCW chapter 7.24) challenging the validity of the Yakima election at which an amendment to the city charter adopting the council-manager form of city government was approved, because the law, both constitutional and statutory, requiring publication thereof was ignored.

Article XI, § 10 of the Washington constitution, so far as material, is as follows:

“Said proposed charter shall be published in two daily newspapers published in said city, for at least thirty days prior to the day of submitting the same to the electors for their approval, as above provided.”

RCW 35.22.170 is as follows:

“The proposed new, altered or revised charter shall be published in two daily newspapers in the city for at least thirty days prior to the day of election thereon for adoption or rejection.”

By unchallenged findings, it appears that on February 14, 1956, the Yakima city commission, by resolution, decided to submit to the voters of that city a proposition to amend the city charter by adopting the council-manager form of government. Newspaper publication of notice of the election for that purpose was first made on the day following, February 15, 1956, in the two Yakima daily newspapers. The municipal election was held March 13, 1956, so it is conclusively established that there was no publication of the proposed charter amendment for “at least thirty days prior to the day of election” as required by both the constitution and statute. The election was held twenty-seven days following the first publication. The proposition was carried by 7,451 affirmative votes to 3,803 votes against.

Yakima is a first-class city as defined by statute.

The trial court’s memorandum opinion recognized that the constitutional publication requirement controlled, even 'though the charter amendment was proposed by the initiative device sanctioned by Laws of 1903, chapter 186, p. 393 (RCW 35.22.120).

The trial court was of the opinion that the constitutional publication requirement of the proposed amendment in two newspapers for a period of thirty days was procedural, that substantial compliance only was required, and that the voters of Yakima had actual knowledge thereof by other means of communication, which, in the view of the trial court, was more effective than the constitutional device.

It may very well be that actual notice is more effective device sanctioned by Laws of 1903, chapter 186, p. 393 constitution might well be amended to provide for that sort of notice, but until it is so amended, this' court is bound by the constitution, and we are not at liberty to substitute some other device which might be considered more effective.

The constitution itself declares:

“The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.” (Italics ours.) Art. I. § 29, Washington State Constitution.

. In both Wade v. Tacoma, 4 Wash. 85, 29 Pac. 983, and State ex rel. Linn v. Superior Court, 20 Wn. (2d) 138, 146 P. (2d) 543, we said in unmistakable terms that the constitutional requirement above quoted was mandatory, and that it could not be circumvented. The constitution has not since been amended, and the judgment must, therefore, be reversed.

Three of the five judges of this court in Wade v. Tacoma, supra, Dunbar, Stiles, and Hoyt, were members of the constitutional convention which only three years before framed the constitution. Moreover, Judge Hoyt was president of the convention. The pronouncements of that court on this question, therefore, have more than ordinary significance.

Counsel for the respondent argues that no publication of the proposed amendment is required by Laws of 1903, chapter 186, but this overlooks entirely Laws of 1895, chapter 27, § 3, p. 42, set out in the margin,² which requires precisely the same publication as is prescribed in the constitution.

There was no occasion in the act of 1903 to deal with the question of publication, because that matter was already adequately covered by existing statutes. Laws of 1895, chapter 27, § 3, has existed continuously since and was last re-enacted by Laws of 1925, Ex. Ses., chapter 137, § 3, p. 345.

1 Ballinger’s Annotated Codes and Statutes of Washington (1897) carried the section as § 765. It is found in 2 Remington’s and Ballinger’s Annotated Codes and Statutes of Washington (1910) as § 7500. In 3 Remington’s Compiled Statutes of 1922 and in Remington’s Revised Statutes of 1932, it is found as § 8957. It has never been repealed.

The argument that under the act of 1903 there is no publication requirement at all is without foundation. The legislature has never deviated from the constitutional requirement.

We are told that the publication requirement of Art. XI, § 10 of the Washington constitution does not apply to charter amendments by the initiative device because that was unknown at the time of the adoption of the constitution in 1889. This argument was specifically rejected in State ex rel. Linn v. Superior Court, supra. We there said:

“It is difficult to imagine a more comprehensive phrase than ‘legislative authority,’ and we are of the opinion that the framers of the constitution intended to use a term so broad as to cover all classes of legislative bodies functioning in cities, whether then in operation or to be put in operation in the future.”

Changed economic conditions or developments do not amend the constitution. Straughan v. Coeur D’Alene, 53 Idaho 494, 24 P. (2d) 321; Louisville v. Presbyterian Orphans Home Society, 299 Ky. 566, 186 S. W. (2d) 194; State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N. E. (2d) 778; State v. King, 262 Wis. 193, 54 N. W. (2d) 181.

If the argument were valid that the constitution applied only to forms extant at the time of its adoption, the commerce clause of the Federal constitution would not authorize Congress to regulate any of the modern means of communication.

The late Chief Justice Harlan Fiske Stone, when Mr. Justice Stone, spoke for the court in United States v. Classic, 313 U. S. 299, 315, 85 L. Ed. 1368, 61 S. Ct. 1031, as follows:

“We may assume that the framers of the Constitution in adopting that section, did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication, which are concededly within it. But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. Cf. Davidson v. New Orleans, 96 U. S. 97; Brown v. Walker, 161 U. S. 591, 595; Robertson v. Baldwin, 165 U. S. 275, 281, 282.”

Both the constitution and statutes require at least thirty days’ newspaper publication of a proposed charter amendment prior to the election at which it is submitted to the voters. Nothing less will suffice. Admittedly, such publication was not had in this case.

The judgment is reversed, and the cause remanded for the entry of a judgment in accordance with the views herein expressed.

Hill, C. J., Donworth, Rosellini, and Weaver, JJ., concur.

2 “Such proposed charter shall be published in two daily newspapers in said city for at least thirty days prior to the day of submitting the same to the electors for their approval as in section two hereof provided.”