No. 164.
SUPREME COURT OF WASHINGTON
February 20, 1891, Decided
Original Proceeding in Habeas Corpus.
Syllabus: CONSTITUTIONAL LAW--DELEGATION OF LEGISLATIVE
POWERS--MUNICIPAL POLICE COURTS.
Cities of twenty thousand inhabitants, or more, have no
power, under the constitutional authority given them to
frame charters for their own government, to provide therein
for the creation of municipal or police courts, as all such
power is delegated by the constitution to the legislature.
The power conferred upon the legislature by the constitution
to create additional inferior courts is not one of its
original inherent powers as the supreme legislative body of
the state, but is a delegated power which must be exercised
in the manner pointed out, and cannot be again delegated.
Such inferior courts can only be created by express
enactment of the legislature.
There is no provision in the acts of March 24 and March 27,
1890 (Laws 1889-90, pp. 215, 131), for the establishment of
police courts in cities of twenty thousand or more
inhabitants.
Counsel: Marshall K. Snell, for petitioner.
W. H. Snell, Prosecuting Attorney, and M. B. Hoxie, for
respondent.
Judge(s) STILES, J. ANDERS, C. J., and DUNBAR, HOYT, and
SCOTT, JJ., concur.
Opinion By: STILES
The opinion of the court was delivered by
STILES, J.--The petitioner, Joseph Cloherty, alias Charles
Malone, shows that he is detained by James H. Price, sheriff
of the county of Pierce, under conviction of the crime of
assault and battery, committed in the city of Tacoma. This
conviction was had in the police court of that city, and he
was sentenced to a term of six months in the county jail of
Pierce county. He prayed a writ of habeas corpus from this
court, directed to the sheriff, and that upon the return
thereof he be discharged from custody. An order to show
cause was issued, and after argument in which the
petitioner, by his counsel on one side, and the sheriff by
the prosecuting attorney of Pierce county and the city
attorney of the city of Tacoma on the other side, were
heard, the question of his discharge is for decision.
Petitioner's ground for his application is, that the
police court of the city of Tacoma had no legal existence,
and therefore no jurisdiction to arraign, try or convict
him. The city of Tacoma is a city of the first class as
defined by the act of March 24, 1890, and in the month of
October, 1890, before the trial and conviction of
petitioner, in pursuance of § 10, article 11 of the
constitution and of the above mentioned act, its people
framed and adopted a municipal charter. Of this charter this
court, and all other courts in the state, are required to
take judicial notice. It therefore appears that, among the
other provisions contained in the charter, was one
establishing a "police court," and the language of this
provision was identical with the language of § 92, 93, 94,
95 and 96 of the act providing for the organization,
classification, incorporation and government of municipal
corporations, approved March 27, 1890; the sections above
mentioned relating to the establishment, jurisdiction and
procedure of a police court in cities of the second class.
We refer to the fact that the language found in the charter
and that in the act are identical as a convenient method of
making known what the constitution of the police court was
without copying the instrument. It thus appears that, in so
far as it was possible for it to do so, the city of Tacoma
endeavored to erect a court having full jurisdiction of the
offense charged against the petitioner. The petitioner,
however, maintains that under the constitution of the state
nothing less than the express enactment of the legislature
could create or establish such a court, and that, therefore,
the provisions of the charter of Tacoma were mere idle
declarations, without force and wholly void.
The State of Washington is a sovereign whose written
constitution is her visible charter. By the constitution all
the judicial power (which is a distinct branch of the
sovereignty) is vested in the courts therein created,
independently of all legislation. The jurisdiction of these
courts is universal, covering the whole domain of judicial
power, even to that growing out of the supposed existence of
municipal ordinances. But to the legislature of the state
the constitution delegates authority to transfer from one of
the constitutional courts to another certain limited
portions of the judicial power; and it may also provide new,
inferior courts, not specifically mentioned in the
constitution, to which may be assigned such part of the
inferior judicial power as it may deem wise to transfer. The
natural conclusion from this premise would be that a court
for the administration of municipal ordinances must have
been created by an act of the legislature.
But the respondent urges that the power to erect a court
of this kind is necessarily implied from the constitutional
authority given to cities of twenty thousand inhabitants to
frame a charter for their own government; that this
concession is equally as strong as the provisions with
reference to courts, and that no harmonious construction of
the instrument can be made unless the power thus contended
for is allowed to exist.
An argument in many respects plausible may be built upon
this foundation. But it must be remembered that, although
the power to frame a charter is conferred by the
constitution, no greater intendments are inferred from that
fact that if it were conferred by a mere act of the
legislature, since, by the same sections, these favored
cities are to be at all times subject to the general laws of
the state. They are not in any sense erected into
independent governments; their existence as municipal
governments depends upon the legislative will; their areas
can be extended only in the manner prescribed by statute;
the elective franchise is exercised under the general laws
applicable to the whole state; the power of eminent domain
is not extended to them except by statutory delegation; and
their municipal legislation is restricted to those subjects
which rightfully belong to them in their corporate capacity.
A charter framed under the constitutional provision is of no
more or larger force than a legislative charter, and can
lawfully treat only of matters relating to the internal
management and control of municipal affairs, subject to
constitutional and legislative regulations; it provides
officers, ways and means, police and other minutiae of local
administration which are necessary to the public
convenience, peace and good order; but, for the enforcement
of criminal ordinances, the constitution and the legislature
have provided independent courts of competent jurisdiction
in the persons of justices of the peace. Cases are cited for
our consideration, which we shall allude to at this time.
While Washington was yet a territory, although it was not
held by any of the territorial courts, the legislature never
attempted to create municipal courts, it being taken for
granted that the organic act forbade the exercise of that
power by prescribing that the judicial power of the
territory should be vested in certain courts therein named.
But in State of Kansas v. Young, 3 Kan. 445, it was held
that under the same organic act the legislature could
provide courts in cities. And so in Shafer v. Mumma, 17 Md.
331 (79 Am. Dec. 656), under the constitution of 1851, it
was held that the punishment of offenses against municipal
ordinances was not a judicial function at all, but merely an
exercise of a branch of the police power. The Kansas
decision was based upon the fact that the legislature had
committed to it all rightful subjects of legislation, which
included the power to create municipal corporations with
their usual incidents, and upon the view that the organic
act in its provisions with regard to courts had reference
only to the enforcement of the laws of the territory at
large. The Maryland decision goes as far as the respondent's
contention; but, upon examining the constitution of that
state, we find no reference whatever to the subject of
municipal corporations, except a single line, which provides
that they may be created by special acts. Thus the whole
matter is as completely left to the legislature as any other
subject over which it has unlimited jurisdiction. We think,
however, that even conceding that case to have been well
decided, it is the only one that can be found going that
far, and that it is not applicable under our constitution,
which clearly includes the administration of city ordinances
among the judicial powers of the state. Nor would the
offense charged against the petitioner have been within the
decision of the Maryland case, since it is one against a
public law of the state (code, § 808), punishable only by
indictment or information.
We were referred also to Hutchings v. Scott, 4 Halst. 218,
a case determined in 1827, where the decision was that the
legislature of New Jersey had the power, under the
constitution of 1776, to declare the mayor, recorder and
aldermen of cities justices of the peace for the trial of
certain causes. But here again the constitution contained no
reference to municipal corporations, and no definition or
limitation of the judicial power, excepting that § 12
prescribed the terms of judges of the supreme and common
pleas courts and justices of the peace.
We may not disagree with the cases in Kansas or New
Jersey, and yet hold that the mere grant of a charter of
incorporation, with power to pass ordinances and prescribe
penalties for their infraction, does not confer the right to
create police courts. The legislature has the largest power
to define crimes and provide for their punishment; but,
under the constitution, it can set up no other courts than
are therein provided for the trial of persons charged with
having committed those crimes. The highest authority we have
on this subject, Judge Dillon, says that it is "competent
for the state legislature to create municipal corporations
with powers of local government, and to authorize them to
adopt ordinances or by-laws, with appropriate penalties for
their violation. The power to do this includes, by fair
implication, the power to authorize violations of ordinances
(when the acts are not criminal in their nature, or within
the meaning of constitutional provisions requiring an
indictment and securing the right to a jury trial) to be
tried and determined in a summary manner by a local or
corporation tribunal." Mun. Cor. (4th ed.), § 428. Yet §
427 and 428 clearly show that the author had in mind no
other thought than that the local or special tribunal must
be created by act of the legislature, and its jurisdiction
be by it defined.
This disposes of the first proposition of the respondent;
and we next consider the claim that the legislature by the
act of March 24, 1890, delegated to the cities of the first
class the power to create police courts. But upon this point
we deem it sufficient to say that the power conferred upon
the legislature to create additional inferior courts is not
one of its original, inherent powers as the supreme
legislative body of the state, which can be delegated by it,
but is a delegated power which must be exercised in the
manner pointed out, and cannot be again delegated. Nor do we
see in the act mentioned any convincing sign of an intention
to delegate the authority contended for, although the
thirty-sixth subdivision of section 5 of the act uses
unusually strong language. Part of respondent's argument on
this point is based on section 7 of the act, and will be
referred to later. As an illustration of the firmness with
which the principle here in issue is held to by the courts
in cases similar to this, we note the case of People v. Toal,
85 Cal. 333 (23 Pac. Rep. 203). The constitution of the
State of California has substantially the same provisions
with regard to courts and the charters of cities of the
higher grade as that of Washington. But it is there provided
that a charter adopted by a city must be submitted to, and
have the approval of the legislature without power of
amendment before it becomes operative. The city of Los
Angeles adopted a charter which, upon its submission to the
legislature, was approved by a joint resolution of both
houses. The charter provided for a police court, and upon a
hearing similar to this, the supreme court held the
provision establishing the court to be void on the grounds
that the power to create such courts was vested in the
legislature; that under the constitution, to create an
inferior court, there must be a law passed in regular form,
and approved by the governor; that the legislature could
pass laws by bill only; and that a joint resolution was not
a law, in the sense required. That would seem to be a much
stronger case than the one at bar; and that decision was
rendered in full view of People v. Hoge, 55 Cal. 612, which
held that the article of the constitution conferring upon
certain cities the power to make their own charters was
self-executing.
But now, inasmuch as the seventh section of the act of
March 24, 1890, is in these words: "Any city adopting a
charter under the provisions of this act shall have all the
powers which are now or may hereafter be conferred upon
incorporated towns and cities by the laws of this state, and
all such powers as are usually exercised by municipal
corporations of like character and degree, whether the same
shall be specifically enumerated in this act or not,"
respondent contends that the unnamed "powers" thus conferred
include the power to provide a court of the character of the
one in question, since the same legislature, by the act of
March 27, created police courts in cities of the second,
third and fourth classes. Reverting to the last clause of §
7 first, we can see no possible way to give it any force
whatever. By what standard could it be said that we should
judge what are the powers "usually exercised by municipal
corporations of like character and degree?" The powers of
municipal corporations are only those expressly conferred,
or those necessarily implied from those expressly conferred.
Are the statutes of our own state and the rulings of its
courts to be taken as the standard; or shall we go abroad?
And where abroad? Is it the powers usually exercised by such
corporations in New York or New Mexico that we shall regard?
It is, we believe, usual to give to the larger cities
everywhere some tribunal for the disposition of offenses
against their ordinances; and it is usual to provide for the
tribunal in the law or charter governing the cities; but it
is almost universal for the legislature to establish the
courts in question by some positive enactment. This, too, is
the course followed in this state, unless cities of the
first class are an exception; but were it not so, it would
be a marvelous stretch of implied legislation to hold that
because cities in other states were given such courts by
their legislatures, by the language in discussion our
legislature intended, in that manner, to waive all ceremony
and establish inferior courts here. In fact, the legislation
would be accomplished by our decision, and not by the
law-making power of the state.
The last question is upon the first clause of section 7,
and it is, whether, by the conference of "power" therein
made, the cities of the first class may establish, or have
already established, within them, such courts as are
provided for in the act of March 27th. The legislature,
treating section 10, article 11 of the constitution as not
self-executing, in the act of March 24th, enumerated
thirty-eight powers to be exercised by cities of the first
class. Sections 38, 45 and 53 of the act of March 27th
enumerated the powers of cities of the second class, and
similar sections fixed those of cities of the third and
fourth classes. The powers thus enumerated are to be
exercised or not at the discretion of the municipal
legislature; and it is so with every power delegated to a
corporation of this kind. Other provisions of the same act
enjoin duties which are in no wise discretionary. And still
other sections provide for certain offices which must be
filled in the manner laid down. But a court is created in
those cities and exists from the moment of incorporation,
without the will, and even against the wish of the
corporation, with its jurisdiction and procedure established
and ready for action as soon as a judge is elected or
appointed as the case may be. Here certainly is no exercise
of a "power" by the corporation. On the contrary, here is a
branch of the state's sovereignty pertaining to the judicial
power, established by positive law without the interference
or consent of the corporation. What broader distinction from
a corporate "power" could there be than this?
Now, the city of Tacoma has attempted to set up a court,
whether by charter or otherwise makes no difference, in so
far as a construction of section 7 is concerned, choosing as
its model the police courts of cities of the second class,
and if this is the exercise of one of the powers conferred
by the general language of the section, it must be agreed
that the power is availed of under precisely the same terms
as it is conferred by the act of March 27th upon the other
cities; that is, the court came into existence, charter or
no charter, the moment the city became incorporated. But
which court? The act of March 27th provided for three
different police courts, each differing from the others in
many respects; how is it to be decided which of the three
was intended to be impliedly erected in cities of the first
class? Rather, should it not be forced to hold that all
these courts were there? Which renders it scarcely necessary
to pursue the absurdity further.
But again, since by § 7 cities of the first class are to
have all the "powers" of other cities, why may not the
analogy be extended to powers other than those referring to
courts? If a court like that of a city of the second class
is by force of the act established in cities of the first
class, why not all the officials prescribed for cities of
the second class, with like powers and duties? Yet an
inspection of the charter of Tacoma shows a very great
variance in this respect, without any reason or authority if
the term "powers" were to have the meaning contended for.
Upon all the grounds urged, therefore, we are satisfied that
the respondent's claims are not sustained.
The truth is that, whether by oversight, or mistake, or
intention, we are not required to guess, the legislature in
omitting to enact a general law for the incorporation and
government of cities of the first class also failed to
supply them with police courts, but left the administration
of their criminal ordinances with the justices of the peace,
where it had been for many years. It may well be that that
body can easily be prevailed upon to supply the deficiency;
but it is not within the province of this court to strain
constructions to accomplish such an object without
legislation.
It follows that we hold the police court of the city of
Tacoma to have no legal existence, and that the petitioner
is entitled to be released forthwith.
ANDERS, C. J., and DUNBAR, HOYT, and SCOTT, JJ., concur.