28 Wash. 317 | Wash. | 1902
The opinion of the court was delivered by
— This is an original application in this court f-or a peremptory writ of mandate directed to the superior court of King county and to the Hon. Arthur E. Griffin, judge thereof. The relator is a corporation authorized to construct and operate street and other railways in the state of Washington. By ordinance of the city of Seattle a franchise was granted to said relator to maintain and operate a street railway upon Eourth sever nue South and -other streets in said city. In December, 1901, the relator filed a petition in the office of the clerk of the superior court of King county for the ascertainment of compensation and appropriation of certain rights in connection with the construction of a trestle, bridge, and roadway in said Eourth avenue South, which structure, or a similar* one, was required by the ordinance aforesaid. The ordinance requires that where relator’s railway shall cross the tracks of the Columbia & Puget Sound Kailroad Company, on Eourth avenue South it shall be elevated a reasonable height above the present grade of said tracks. In said petition Charles B. Smith and Tucker-Hanford Company, a corporation,' were and are claimants and respondents. That petition recites, among other things, that the claimants are the owners of certain 1-ots which lie immediately south of the tracks of said Columbia & Puget Sound Kailroad Company and on the west side of Fourth avenue South; that in order to comply with said ordinance, and to avoid a dangerous grade crossing of the tracks of said railroad company, which operates a steam railroad, it is necessary for relator to construct a trestle and truss bridge for supporting
It is conceded that mandamus is the proper remedy, if the relator is entitled to relief at all in tire premises. A number of questions are discussed by counsel, but rve think one question must be decisive of this case, and we will therefore confine ourselves to the discussion of that alone. By an act of the legislature found in the Session Laws of 1901, at page 213, it is provided that either party may appeal from the order of the court adjudicating or refusing to adjudicate that the contemplated use of property sought to be appropriated is really a public use, and
In State v. Halbert, 14 Wash. 306 (44 Pac. 538), it was held that an act of 1885-86, attempting to amend a section of the Code of 1881 by mere reference to its number in the title of the amending act, was void. The amending act was passed by the territorial legislature, and it was held that under the authority of Harland v. Territory, 3 Wash. T. 131 (13 Pac. 453), and Rumsey v. Territory, 3 Wash. T. 332a (21 Pac. 152), the act was void.
In Parker v. Superior Court of Snohomish County, 25 Wash. 544 (66 Pac. 154), an application was made to this court for a writ commanding the court below to refrain from further proceedings in a condemnation case; it being claimed that an order adjudicating the question of public use had been made, from which order the appeal had been taken under the authority of the act of 1901 now under consideration. The court declined to order the writ issued, and based its decision upon the ground that the order from which the appeal was attempted was not an order adjudicating the question of public use, but
As far as we are advised, the above is a review of all the decisions of this court which may be said to bear upon the subject. It will thus be seen that the precise question involved here has not before been squarely presented to this court for decision. The argument in Marston v. Humes, heretofore mentioned, is a criticism of the opinion written by Mr. Justice Tukxeb in Harland v. Territory, supra; but, as already stated, the criticism was not necessary to support the real ground of the court’s decision. Yet whatever may be said of the argument, it has a distinguishing feature from the case at bar. The argument had the support of the fact that the amending act then under consideration referred to a section that had been adopted as such by a previous legislature, and in making reference to it that body was referring to something that had been theretofore created by it, and which existed by reason of its own authoritative act. In this case, however, the reference is to a section of a private compilation, the arrangement of which was not created by the legislature. But under any view of the former case the mandate of the constitution seems to us so plain that we conceive it to be our duty to hold squarely that a mere reference to a section in the title of an act does not state a subject. What is the significance of the word “subject,” in this connection? Webster defines it as “that of which anything is affirmed or predicated; the theme of a proposition or discourse; that which is spoken of.” To say that mere reference to a numbered section embodies the idea of a theme, proposition, or discourse, it seems to us, is not sustained by the ordinary understanding of those terms.
There is some conflict of authority upon this subject, but we believe the rule here announced is the more wholesome and reasonable one; that such was intended by the constitution, and will more effectually prevent hasty and ill-considered legislation. Judge Cooley, in his work on Constitutional Limitations (6th ed.), p1. 97, observes that constitutional provisions similar to the one in our constitution are recognized by the highest judicial tribunals in nearly all the states as mandatory and to be enforced by the courts. Further discussing the reasons for these constitutional provisions and the evils sought to be remedied thereby, he observes as follows:
“It may therefore be assumed as settled that the purpose of these provisions was: first, to prevent hodge-podge or ‘log-rolling’ legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly' and unintentionally adopted; and, third, to fairly apprise the people, through such, publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” Cooley, Constitutional Limitations (6th ed.), pp. 171, 172.
The following cases, in the application of this principle as argued in the opinions, support the rule that the title of an amending act is insufficient when it merely refers to a numbered section or numbered chapter, without fur
In the cases of Webster v. Powell, and The Borrowdale, supra, Harland v. Territory, above mentioned, is cited with approval. Of that case; Judge Deady, in the case of The Borrowdale, says:
“Harland v. Washington Territory, 3 Wash. T. 142 (13 Pac. Rep. 453), is a case directly in point. It was there held that the ‘subject’ of the act was not expressed in such title, and that the act was, therefore, Amid. The question is thoroughly considered in the opinion of the court, and the conclusion maintained by argument and authority Avhicli are unansAverable.”
In People v. Hills, supra, the title in question referred only to a certain numbered chapter, Avliich contained many sections. The learned Avriter of the opinion observed that, “If the framer of the act of March 24, 1865, had entitled it an act to amend section 290 of chapter 389 of the laAvs of 1851, a reader, by referring to that section, might have obtained from its title some notion of AAdiat the subject matter of the act related to ;” thus intimating the possibility that if the reference had been made to a distinct section the holding might have been 'Otherwise. But in the later opinion of People v. Briggs, supra, the same court said:
“The case of The People v. Hills (35 N. Y. 449) is entirely unlike this. There; the title Avas ‘An act to amend chapter 389 of the EhAvs of 1851.’ That act was properly held invalid because no subject Avas expressed in the title. The learned judge; aaIio delivered the opinion in that ease,*328 intimated that if the particular section in the act proposed to he amended had heen referred to in the title, it would have been good; but I doubt whether that would have cured the defect. The constitution requires that the subject should be expressed. That title expressed no subject, but only contained a reference whore the subject might he found. If the title of the act proposed to be amended had been inserted, it would have been free from the constitutional objection.”
The above statement that such a title contains no subject, but only a reference to where the subject may be found, is approved and emphasized in Tingue v. Village of Port Chester, supra. The last statement in the above quotation, that, if the title of the amending act had contained the title of tire act proposed to be amended, it would have been sufficient, was also directly held in State ex rel. Whitson v. Algood, 87 Tenn. 163 (10 S. W. 310). In Feibleman v. State, supra, the court observed:
“If a section in the revision of 1881 may be amended by simply referring to it by number, so may a law of any session of the legislature be amended in the same way by a title like this: ‘An act to amend section 3 on page 46 of the Acts of 1883.’ This would lead to looseness and uncertainty in statutory amendments, which it was the main object of the constitutional provision under consideration to prevent.”
We are not unmindful that every reasonable presumption not in conflict with constitutional requirement should be indulged in favor of- the validity of a legislative act. Courts always hesitate to declaro a solemn act of a legislature void. But the judicial department is constituted one of the co-ordinate branches of the government. Its duties are clearly defined, and should be fearlessly discharged. If or the foregoing reasons the act must be held unconstitutional and void. There being, therefore, no authority for
Let the writ issue.
Lea vis, C. J., and Anders, Mount, Fullerton, Dunbar and White, JJ., concur.