State ex rel. Seattle Electric Co. v. Superior Court

The opinion of the court was delivered by Hadley, J. — 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 — 319 — its tracks and roadway above the grade of said railroad, and that such structure must necessarily be elevated above the natural surface of the ground in front of the claimants’ premises. The character of the proposed structure is described in the petition, and it is alleged that said claimants claim that they will be damaged by the construction and operation of the same. It is alleged that the use for which such bridge is to be constructed is a public use; that public necessity requires the prosecution of said enterprise, and that it is necessary for said petitioner in the operation of its franchises and the exercise of its public duties. The petition prays that a jury may be impaneled to ascertain and determine the compensation to be paid to the claimants. Thereafter the petition came on for hearing, and the court found that the contemplated use of said structure is a public use and that public interest requires the construction and maintenance of said bridge, and entered an order accordingly. The court further ordered that upon a given date a jury should be impaneled to ascertain the amount of damages which will result to the claimants by reason of the construction and maintenance of said proposed structure. At the time of entering said decree the claimant Charles B. Smith, in open court, gave notice of appeal from said order. Thereafter the relator filed in the office of the clerk of the superior court a bond conditioned as required by § 5646, Bal. Code, which bond was approved by said clerk; and the claimant Charles B. Smith, on the same day, filed an appeal bond in the sum of $200. Afterwards the said claimant moved the court for a stay of proceedings in said superior court pending the determination by the supreme court of the aforesaid appeal, the ground of said motion being that by reason of the said — 320 — appeal the superior court had no- jurisdiction to proceed with the trial of the question of damages and compensation while said appeal is pending. The court granted said motion, and entered an order whereby it was ordered that by reason of the lack of jurisdiction of said court, on account of the pendency of said appeal, no jury shall be impaneled in said cause to determine the question of compensation, and that said cause shall not be tried before said court on said question until the determination of said appeal by the supreme court. At the time of the making of the last-named order, the relator objected, and demanded that a jury be impaneled, and that the question of damages be tried and determined in accordance with the order theretofore made, which demand was denied solely for the reason that tlie court was of the opinion that it had no power to proceed with said trial while said appeal, is.pending. The relator duly excepted to said order at the time it was made, and said exception was allowed. Thereupon application was made to this court for a, peremptory writ of mandat© directed to the superior court, commanding that said court shall immediately cause a jury to be impaneled and proceed to try the question of damages, notwithstanding said appeal. 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 — 321 — ordering or refusing to order a jury to he summoned for the assessment of damages. The provision is contained in what purports to be an amendment to § 5615 of Ballinger’s Annotated Codes and Statutes of Washington?. The act is entitled as follows: “An act to amend section 5G45 of Ballinger’s Annotated Codes and Statutes of Washington, and declaring an emergency.” Relator’s counsel urge that the said act is unconstitutional and void for the1 reason that the subject, of the act is not expressed in the title. Article 2, § 19, of the constitution of Washington, is as follows: “Ho hill shall embrace more than one subject and that shall he expressed in the title.” The above constitutional provision is clear, direct, and mandatory in its nature; and, if the legislative act in question violates that provision, it must he held void. Manifestly, under the constitutional requirement the title of an act must express the subject with which the act deals. This rule is so universal, and the reason for it has been so generally discussed, that it seems unnecessary to dwell upon it here. The wisdom of the rule suggests itself, in that the reader, whether a member of the legislature or otherwise, may, by a mere glance at a few catch words in the title, he apprised of what the act treats, without further- search. Does the title of the act in question contain such a statement of the subject-matter? It will he observed that it merely refers to- a certain section of Ballinger’s Code; which it purports to amend, and no intimation is given as to the subject-matter of the section which it- is sought to amend. It is clear that the reader cannot determine from the title what subject is treated by the section in Ballinger’s Code or by the amending act itself. This, we think, is in violation of the constitutional requirement. Mo elaborate statement of the — 322 — subject of an act is necessary to meet the spirit of the constitution. A few well-chosen words, suggestive of the general subject treated, is all that is required. But we think the absence of any such suggestive words is fatal, and that to hold otherwise would be to utterly ignoi'e the constitutional provision. In Marston v. Humes, 3 Wash. 267 (28 Pac. 520), the constitutionality of an act was assailed because of an alleged defective title. The title was as follows: “An act relating to pleadings in civil actions and amending §§ 76, 77 and 109 of the Oode of Washington of 1881.” The act was held to be valid for the reason that the title did state a subject, to-wit, “An act relating to pleadings in civil actions.” It is true, the learned writer of the opinion went further, and stated that as the Oode of 1881 is a valid and binding body of laws, arranged and consecutively sectionized under authority of tire legislature, a section of such Oode may be amended by an act under a title which simply provides for the amendment of such section by its number, without ■ any designation of the subj ect-matter of the section to be amended. But such statement was not necessary for the decision of that case, inasmuch as it was determined that the title then under consideration did contain a clearly defined subject. It is suggested that the argument there used, as applying to acts amending a section of the Code of 1881, does not apply with equal force here. That Oode, as stated above, was adopted as an authoritative body of laws. Its consecutive sections were arranged by authority of the legislature and afterwards re-enacted by that body, thereby making not only its contents, but the numbers and arrangement of the sections., the act of the legislature. It is very properly suggested by counsel that Judge Ballinger has prepared a Oode which is of great convenience to the bench and bar of the state, but that Oode cannot be — 323 — said to be clothed with authority equal to that of the Code of 1881. The latter is a purely legislative product, while the former is a private compilation, which has simply received the approval of the legislature as an official compilation of existing statutes, but of no greater authority than all other existing official compilations of session laws of the state. See Session Laws 1899, p. 109, § 1. Ballinger’s Code was not''enacted by the legislature, as was the Code of 1881, but was only approved as a compilation of laws for the purposes of reference, as provided in § 2 of the act of 1899, above cited. But whether the argument in Marston v. Humes, supra, applies with equal force here or not, the fact remains that the only question really decided in that case was that, aside from the reference to the section, the title contained sufficient words to indicate the subject, and that the act was therefore constitutional. In this connection, we desire to be distinctly understood as holding that by authority of the act of 1899, supra, it is entirely proper for the legislature to refer to sections of Ballinger’s Code in the title of an act; but such mere reference to the sections of a private compilation of laws, although ably and carefully prepared, and even recognized by the legislature as an official compilation, cannot tahe the place of the constitutional requirement that the title of an act shall contain some statement indicating the actual thing of which the law treats. 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. — 324 — It was urged in the case that Marston v. Humes had adopted a rule contrary to that announced by the supreme court of the territory, but the court based its decision upon the ground that the effect of the territorial decisions was to render the act void. The constitution provided that all the laws then in force in the territory which were not repugnant to the constitution should remain in force until they should expire by their own limitation, or be repealed by the legislature; and it was therefore held that the law was of no force at the time of the adoption of the constitution, because it had theretofore become void by virtue of the territorial decisions. In the course of the opinion the court merely referred to what was said in Marston v. Humes, without expressing either approval or disapproval thereof, and, having based its decision upon the ground above stated, did not pass upon, the precise question presented here. The same question which was involved in State v. Halbert, supra, was also presented, and the same rule adopted, in the following cases: State v. Dillon, 14 Wash. 703 (46 Pac. 1119); Poncin v. Furth, 15 Wash. 201 (46 Pac. 241) ; State v. Smith, 15 Wash. 698 (46 Pac. 1119); In re Nolan, 21 Wash. 395 (58 Pac. 222). 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 — 325 — was only an order overruling a demurrer to a complaint, and was therefore not a final order which ivas appealable. The constitutionality of the act of 1901 was not raised or considered in that case. 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. — 326 — The theme of a legislative act is that of which it treats, and an amending' act treats of the theme covered by the act sought to be amended. We therefore see no escape from the conclusion that the title of an amending act must contain some words which indicate the theme or proposition of which the act sought to be amended treats. 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 — 327 — ther indicating its subject: Webster v. Powell, 36 Fla. 703 (18 South. 441); The Borrowdale, 39 Fed. 376; People ex rel. McConvill v. Hills, 35 N. Y. 449; People ex rel. Rochester v. Briggs, 50 N. Y. 553; Tingue v. Tillage of Port Chester, 101 N. Y. 294 (4 N. E. 625); Feibleman v. State, 98 Ind. 516; Wall v. Garrison, 11 Colo. 515 (19 Pac. 469). 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 — 329 — an appeal from an order adjudicating an appropriation to be of public use and ordering’ a jury to be impaneled to ascertain the damages, it follows that there exists here no reason why the superior court shall not forthwith proceed to cause a jury to be impaneled to determine and assess the amount of damages. Let the writ issue. Lea vis, C. J., and Anders, Mount, Fullerton, Dunbar and White, JJ., concur.