State ex rel. Prosser Falls Land & Irrigation Co. v. Taylor

Dunbar, J. — This is a special proceeding, prosecuted by the relator, Prosser Palls 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 ordi [609] nance 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, atte'sted 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. Mourt, O. J., and Tullektor and Hadley, JJ., concur.