No. 1836.
Court: Judgment affirmed. Syllabus: MUNICIPAL CORPORATIONS--ENACTMENT OF ORDINANCES. Counsel: Bell & Austin, and Crowley, Sullivan & Grosscup, Judge(s) GORDON, J. HOYT, C. J., and SCOTT, ANDERS and
June 25, 1895, Decided
Appeal from Superior Court, Snohomish County.
The provisions of Code Proc., § 635, prohibiting the passage
of ordinances within five days after their introduction, and
unless they have first been submitted to the city attorney,
applies only to such ordinances and resolutions as are
intended to grant franchises for any purpose. ( Vancouver v.
Wintler, 8 Wash. 378, distinguished).
for appellant.
Alex. Akerman, for respondents.
DUNBAR, JJ., concur.
The opinion of the court was delivered by
GORDON, J.--This action was brought by the appellant
against the respondent, W. W. Mish, as treasurer of
Snohomish county, and the city of Everett, a municipal
corporation of the third class, situate in that county, to
restrain the collection, and to cancel the apparent lien, of
taxes which said city attempted to levy for municipal
purposes in the year 1893. The ground upon which relief is
sought is that the ordinance of said city, under which the
tax levy in question was authorized, was passed by the city
council on the day of its introduction, and without being
first submitted to the city attorney. And it is further
contended that the meeting at which said ordinance was
passed was not a regular meeting of the council.
Section 4 of the act approved March 9, 1893 (Laws 1893, p.
158), in so far as concerns the present question, is as
follows:
"No ordinance and no resolution granting any franchise for
any purpose shall be passed by the city council on the day
of its introduction, nor within five days thereafter, nor at
any other than a regular meeting, nor without being first
submitted to the city attorney."
That much of said section as is above quoted is a
re-enactment, without change, of § 116 of the act of March
27, 1890. In giving said last mentioned section its place in
Hill's Code (§ 635), the learned annotator inserted a comma
after the word "ordinance," which was not contained in the
original act, and which is also omitted from the act of
1893.
Learned counsel for the appellant relies for a reversal
upon the case of Vancouver v. Wintler, 8 Wash. 378 (36 P.
278, 685). In that case the sole reference made in the
opinion to the law under consideration was to § 635, supra.
But the ordinance under consideration in that case was
introduced more than five days prior to its passage. Hence
the case is distinguishable from the present one in that it
did not present the question which we are here called upon
to decide, and what is said in the opinion in that case
concerning this question is clearly dictum, in no wise
affecting the result, and cannot be considered as
authoritative.
We are of the opinion that the provision in question was
intended to apply only to ordinances and resolutions
granting franchises, and that the language of the section
admits of no other construction. Many good and sufficient
reasons might be given for imposing legislative restrictions
upon city authorities in the granting of franchises that
would not be applicable to their control of the ordinary
affairs committed to their discretion.
The judgment will be affirmed.
HOYT, C. J., and SCOTT, ANDERS and DUNBAR, JJ., concur.