IRRIGATION CO. (S. Ct. 1905). THE STATE OF WASHINGTON, on the Relation of Prosser Falls
Land and Irrigation Company, Respondent,
vs.
E. W. R. TAYLOR, Appellant
No. 5284
SUPREME COURT OF WASHINGTON
36 Wash. 607, 79 P. 286
January 21, 1905, Decided
Appeal from a judgment of the superior court for Yakima county,
Rudkin, J., entered April 13, 1904, upon sustaining a demurrer to
an answer, directing the issuance of a writ of mandamus, as
prayed for.
MUNICIPAL CORPORATIONS -- POWERS -- GRANTING FRANCHISES FOR LIGHT
PLANTS. A city of the fourth class is authorized to pass an
ordinance granting an electric light and power franchise; even
although a previous franchise which was not exclusive had been
granted to another party.
MUNICIPAL CORPORATIONS -- CITY OF FOURTH CLASS -- ORDINANCES --
MAYOR'S DUTY TO SIGN -- VETO -- MANDAMUS, WHEN LIES. The charter
of cities of the fourth class gives the mayor no veto or
discretionary power, with reference to signing ordinances, and
under Bal. Code, § 1012, providing that every ordinance of a city
of the fourth class shall be signed by the mayor, mandamus lies
to compel the mayor to sign an ordinance duly passed by the
council, since his duties depend entirely upon the charter
provisions.
Snyder & Preble and H. J. Snively for appellant.
Whitson & Parker, for respondent.
DUNBAR, J. MOUNT, C.J., and FULLERTON and HADLEY, JJ., concur. DUNBAR
{*608} This is a special proceeding, prosecuted by the relator,
Prosser Falls Land and Irrigation Company, against the defendant,
as mayor of the town of Prosser, a city of the fourth class, to
compel him, by writ of mandamus, to sign a proposed ordinance of
said town passed by its city council, granting to said relator a
franchise to erect and maintain electric light and electric power
plants in said city and to erect and maintain in the public
streets thereof poles, wires, and other fixtures for furnishing
electric light and electric power. After setting forth the
ordinance, the petition alleged that the mayor refused to sign
the same, and prayed that a writ issue to compel him to sign
said ordinance. To this petition the defendant answered. The
plaintiff demurred generally to defendant's answer to the
petition for said writ of mandamus, which demurrer was sustained.
Judgment was entered, requiring appellant to sign the said
proposed ordinance, and directing that a writ of mandamus issue
to that end. The proceeding is in this court, upon appeal by said
defendant from said judgment.
The petition set out the ordinance, which is too lengthy to
reproduce here -- in fact, there is no contention over the form
of the ordinance, the answer being that the city had no power to
pass such an ordinance, it being beyond the scope of its
authority -- and alleges that the mayor was not compelled under
the charter to sign such ordinance, but that the charter
provision requiring him to sign the ordinances contemplated an
approval by him of the ordinance {*609} before the signing; that
the act was not a ministerial act, but one of discretion. The
answer further alleged, in defense of the mayor, the fact that
certain other franchises had, at a prior time, been granted to
one Thompson. We think, without entering into a specific
discussion of the question, that ample authority is given by the
charter to the city council to pass the ordinance that it did
pass. And there is no merit in the further answer that a similar
franchise had been granted to Thompson, for it does not appear
that an exclusive franchise had been granted to any one, even if
the city had power to grant such a franchise. The main contention
of the appellant is that the charter of the town of Prosser, to
wit, the general law governing cities of the fourth class, vests
in the mayor power to withhold his signature to any proposed
ordinance. Section 1012, Bal. Code, which is the section
governing in this respect cities and towns of the fourth class,
is as follows:
". . . Every ordinance shall be signed by the mayor, attested by
the clerk, and published at least once in a newspaper published
in such town, or printed and posted in at least three public
places therein."
It is insisted by the appellant that, inasmuch as the statute
provides for the attestation of the ordinance by the clerk, it is
evidently not the purpose of the statute, in providing for the
mayor's signing the said ordinance, that it also shall be for the
purpose of attestation, and that a contrast is drawn between the
mayor's signing and the clerk's attesting. It is also insisted
that, if it were a fact that the mayor has no legal authority to
approve ordinances, and therefore he acts in a ministerial
capacity, only, in signing them, then the alleged ordinance in
question is absolutely void for the reason that its going into
effect is expressly contingent upon its approval by the mayor.
But {*610} it seems to us that this is not sound reasoning, and
assumes the very question in controversy, and it might as well be
contended that an ordinance was void because the clerk had not
attested it and, therefore, the clerk could not be compelled to
attest it by reason of the ordinance being void. The adoption of
such a rule of reasoning would, we think, operate against the
enforcement of all municipal law.
This question must be considered in the light of the basic
principle of law that all the powers and duties of a mayor depend
upon the provisions of the charter in cases of this kind, a
principle which is so universally acknowledged that the citation
of authority in its support becomes unnecessary. There being no
provision of the charter granting any veto or equivalent power to
the mayor, none can be accorded him by the courts. The statute in
this respect simply provides that he shall sign every ordinance.
But an examination of the charter powers of cities of the second
and third classes strengthens the idea that the mayor's duty in
this case is purely ministerial. Of course, the cities of the
first class make their own charters. The mayors of the cities of
the second and third classes are especially clothed with
authority to veto ordinances, and are made a part of the
legislative department of such cities. But no such authority
being vested in the mayor by the charter of cities of the fourth
class, it must be concluded, not that by inadvertence the
legislature failed to clothe the mayors of such municipalities
with the veto power, but that the legislative intention was to
discriminate in this respect between cities of the second and
third and cities of the fourth class.
On the whole, we are satisfied that the judgment of the superior
court was correct, and it is therefore affirmed.
DISPOSITION
Affirmed.
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