1 Wash. 98 | Wash. | 1890
Lead Opinion
This action was brought in the district court of the Second judicial district of Washington Territory, holding terms at Tacoma, in and for Pierce county, to enquire and determine by what warrant or authority the appellees claim to exercise the powers of a board of trustees of the town of Puyallup, in that county, and to oust them from office as such board of trustees and to dissolve said municipal corporation. The complaint states:
‘ ‘First, that the above named defendants, at a place called Puyallup, in Pierce county, Washington Territory, do now unlawfully act as a municipal corporation under the name and style of the town of Puyallup, without being legally incorporated, and as a board of trustees of said alleged municipal corporation; second, that said defendants actas such corporation and exercise the powers of such board of trustees under color of authority conferred by an order made by the j udge of this court, at chambers, in the city of Tacoma, Washington Territory, on the 31st day of July, A.D. 1888, and entered upon record in this court; third, that a certified copy of the record of said order and of the proceedings in the matter relating to the alleged incorporation of said town of Puyallup, marked exhibit A, is hereto annexed for reference and made a part of this complaint, and' a correct plat showing the boundaries of said alleged incorporated town of Puyallup, as defined in said order, and the location of the relator’s farm hereinafter mentioned, marked exhibit B, is hereto annexed for reference and made a part of this complaint; fourth, that said order is void and of no effect, for the same was made by the judge aforesaid, upon the ex parte application of John Beverly, Esq., without a hearing being granted to the relator or to any of the inhabitants or owners of property within the boundaries of said alleged town of Puyallup, and without any notice being given of said application, and no opportunity was at any time given to the relator, or any other person whomsoever, to remonstrate against or oppose the incorporation of said town, or to question the validity or sufficiency of the petition upon which said order was made, or to make complaint as to the boundaries of said alleged,*101 town; and no legal or good evidence was produced before the judge upon which to base the findings of fact recited in said order, and power to make said order is not judicial and not vested in said judge bylaw; fifth, that the relator is the owner of real property situated within the boundaries of said alleged town, as defined by said order, and he and many others, owners of property situated within said alleged town, have not consented to the incorporation of said town, and are unwilling to have said town incorporated with boundaries including their said property, for that said property is partly improved and cultivated farming land and no part thereof is platted into town lots and streets, and they are unwilling to consent to the laying out of and extending streets across their said land, or to taxation of said land by such alleged municipal corporation.”
To this complaint defendants demurred for the alleged reason that the same did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and caused judgment for costs to be entered against the plaintiff. From this judgment plaintiff appeals to this court, and we are called upon to determine the question of the legal existence of the town of Puyal-lup, which also involves the validity of the act of the legislature approved February 2,1888, entitled “An act for the incorporation of towns and villages,” the first section of which, so far as is material to this case, is as follows: “ Where a majority of the taxable inhabitants of any town or village within this territory, present a petition to the judge of the distl’ict court having jurisdiction of real actions in such county, setting forth the metes and bounds of such towu or village, together with the adjacent bounds in all not exceeding in area one square mile, which they desire to include therein, and praying that they may be incorporated, and police established for their local government, and the judge of the district court shall be satisfied that a majority of the taxable inhabitants of such town or village, as shown by the last assessment roll of said eounty, shall have signed such petition, such judge of
It is admitted by the demurrer, and was conceded by counsel on the argument of this case, that the relator is the owner of real property situated within the boundaries of the territory described in the petition and defined by order of the court, that he did not consent to the incorporation of the town, that he was unwilling to have it incorporated with boundaries including his property, that his said real estate is partly improved and cultivated farming land, not platted into town lots and streets, and that he is unwilling
The proceedings are assailed' by appellant as not being in accordance with the law relating thereto. He objects that the petition is defective in not stating that the signers thereof were a majority of the taxable inhabitants of the town, according to the last assessment roll of the county, and that the order of the judge was made upon the certificate of the county assessor, who is not empowered by any law to so certify; that there was no evidence before the judge or court to warrant the order, and that the order was made without jurisdiction of the subject-matter by the court. As the law requires that the petition to be presented to the judge shall be signed by a majority of the taxable inhabitants of the town or village to be incorporated, and that the judge shall be satisfied (in some way not specified by law) that a majority of the taxable inhabitants of the town or village, as shown by the last assessment roll of the county, shall have signed the petition, it is quite doubtful whether an omission to state in the petition that the petitioners are a majority of the taxable inhabitants, as shown by the last assessment roll of the county, is not a matter substantially affecting the subsequent proceedings. But, however this may be, we are not disposed to hold the incorporation invalid on that account, but will assume that the law was substantially complied with.
We now come to the consideration of the validity of the law itself. The object of the act of the legislature was the incorporation of towns and villages, as expressed in the title, and as the meaning of the expression “towns and
It being conceded that the power to create municipal corporations is vested exclusively in the legislature, the question arises, Can this power be delegated, and, if so, to whom, or to what agencies ? Counsel on both sides agree that the legislature may delegate its functions in some measure; but they disagree as to the law-making power to carry the principle to the extent attempted in the act in question. On the one side it is contended that the act approved February 2d, 1888, does not, in fact, delegate legislative authority to the courts; that the statute and not the court determines the extent and nature of the powers of
To sustain the position of appellees, counsel cite the ease of Burlington v. Leebrick, 43 Iowa, 252. The question there was as to the power of the city of Burlington to enlarge its limits by extending its boundaries over contiguous territory, and the court held that the law authorizing a petition for the purpose by the city council, to be presented to and acted upon by the circuit judge, and issues to be found and tried as in other proceedings, was not invalidas an unwarranted delegation of legislative power, basing the opinion on the ground that the determination of the issues by the court was a judicial act, a mere ascertaining of the condition upon which the law might take effect. But, in, delivering the opinion, the court used the following language : “ Nor is it proper to designate the thing to be accomplished by this statute as the creation of a corporation. A corporation is an artificial being, clothed with certai%
"We hold that a judicial court cannot exercise legislative functions and that the legislature cannot impose such power upon it. People v. Bennett, supra; People v. Nevada, 6 Cal. 143; City of Galesburg v. Hawkinson, 75 Ill. 152; People v. Carpenter, 24 N. Y. 86. Owing to the importance of this case we have given it all the consideration in our power under the circumstances, and we have been greatly aided in our labors by the learning and diligence of counsel on both sides. And we are constrained to hold that the statute under which the town of Puyallup was organized is invalid and cannot be sustained. The cause will therefore be remanded to the court below, with directions to overrule the demurrer and to proceed in accordance with this opinion. And it is so ordered.
Concurrence Opinion
I concur in the result, because I do not think the petition was sufficient; but I cannot concur in the opinion that the act of the legislature was unconstitutional.