Parosa v. City of Tacoma

Mallery, J.-

(concurring in the result) — The appellants filed a petition to incorporate a town which would contain *418two large tracts of land that are connected by a strip of land only three hundred fifty feet wide. The easterly tract contains approximately one quarter of the area and all but forty-three of the residents of the proposed town. The westerly tract, consisting largely of a tideflat, has been developed by the Port of Tacoma as industrial property and contains one thousand thirty-two acres owned by the Port, most of which is unplatted. The Port has steadfastly refused its consent to have any of its unplatted land included in the proposed town.

The Port’s comprehensive long-range plan for the development of the tideflat industrial development district contemplates the expenditure of five million dollars for roads, water mains, sewers, and fill. The Port possesses ample powers to do these things under existing law.

The Port commissioners believe that the incorporation of a fourth-class town to include this industrial area would hamper its development. Accordingly, when previous petitions for incorporation of the town in question were filed, the Port on each occasion condemned property in the area of the proposed town and thereby reduced its population below three hundred, the number required by RCW 35.02-.010 for incorporation. The incorporators countered these maneuvers with new petitions covering larger areas with sufficient people. The present petition is referred to as Tidehaven petition No. 3. It was filed with the Pierce county auditor on June 5, 1958, and was transmitted to the board of county commissioners on June 20, 1958.

As a counter move to this petition, the Port commissioners filed with the city clerk of Tacoma, on June 18, 1958, a petition for annexation to Tacoma of thirty acres of property owned by the Port. The exclusion of these thirty acres would bisect the proposed town into the two noncontiguous tracts of land described above. The annexation petition was transmitted to the Tacoma city council on June 23, 1958, and the council by ordinance No. 16,158 passed on July 28, 1958, annexed the thirty-acre strip to the city.

*419Since the appellants’ petition for incorporation was filed prior to the annexation of the thirty-acre strip by the city of Tacoma, the appellants contend that the purported subsequent annexation is invalid. The respondents deny that appellants’ priority is determinative of the issue because the appellants never had a right under the statute to include at any time the Port’s thirty acres of land in their proposed incorporation over their objection. The appellants think they do have such a right for the reason that the statutory twenty-acre provision relied upon by the respondents applies only to annexations and not to incorporations. The issue thus hangs upon the meaning of the statute in question.

I think the majority are in error in their approach to the statutory interpretation necessary to the decision of the case. It is my position that the intention of the statute may be authentically ascertained by making reference directly to the session laws containing the statutory provisions here in question.

Accordingly, by turning to Laws of 1889-90, chapter 7, § 15, p. 141, we find that it reads:

“Municipal corporations now or hereafter organized are bodies politic and corporate under the name of the city of ................................................, or the town of................................................, as the case may be, and as such may sue and be sued, contract or be contracted with, acquire, hold, possess and dispose of property, subject to the restrictions contained in other chapters of this act, having a common seal, and change or alter the same at pleasure, and exercise such other powers, and have such other privileges as are conferred by this act: Provided, That not more than one square mile in area shall be included within the corporate limits of municipal corporations of the fourth class, nor shall more than twenty acres of unplatted land belonging to any one person be taken within the corporate limits of municipal corporations of the fourth class without the consent of the owner of such unplatted land.” (Italics mine.)

This section was amended by the Laws of 1951, chapter 109, § 1, p. 270, which reads:

“Section 35.27.020, R.C.W., as derived from section 15 of ‘An act providing for the organization, classification, in*420corporation and government of. municipal corporations/ Laws of 1889-90, page 141, is amended to read as follows:
“No more than twenty acres of unplatted land belonging to any one person shall be taken into the limits of municipal corporations of the fourth class without the consent of the owner thereof.” (Italics mine.)

I think the majority opinion is in error in holding that chapter 109 is invalid because it offends Art. II, § 37, of the state constitution, which provides:

“No act shall ever be revised or amended by mere reference to its title,'but the act revised or the section amended shall be set forth at full length.” (Italics mine.)

This holding is unwarranted because the language in the act which I have italicized specifies in the required constitutional manner what section of what act is being amended. This full compliance with the constitutional requirement should not be nullified by this court because of the words “Section 35.27.020, R.C.W., as derived from,” which the legislature included in addition to the constitutional requirement.

It is at least certain that the part of the Laws of 1889-90, chapter 7, § 15, p. 141, with which we are concerned, was amended only by changing the word “within” to “into.” The effect of the 1951 act upon the remainder of § 15 is in no way relevant to our present inquiry and if passed upon could be nothing more than dicta in any event.

In State ex rel. Cummings v. Johnson, 105 Wash. 93, 177 Pac. 699, we interpreted the 1889-90 act so as to make the twenty-acre limitation applicable to an original incorporation. The 1951 amendment in changing the word “within” to “into” does not indicate an intention to reverse that case and make the twenty-acre limitation inapplicable to original incorporations.

I think the respondents’ contention that the twenty-acre limitation applies to incorporations as well as annexations is correct, and for this reason I agree that the judgment should be affirmed.

Weaver, C. J., concurs with Mallery, J.