(dissenting). — In my opinion the jurisdiction of the superior court, which is challenged by this proceeding, should have been sustained. The legislature, in pursuance of that provision of the constitution which authorized cities of more than 20,000 inhabitants to frame their own charters, specially authorized such cities, by means of such charters, to provide what officers should be elected, how and when they should be elected, and how the result of the election should be determined. This being so, it was clearly within the power of such cities to provide that there might be a prima facie determination of such result, and thereafter a conclusive determination. It was therefore within the porver of the city of Tacoma, in its freeholders’ charter, to provide that a contest might be instituted against the one declared elected upon a prima facie determination of the fact of his election, and to provide how such contest should be conducted.
*610That such a contest has been provided for is conceded by relator, and in his brief he seems to further concede the fact that if it had been provided that this contest should be conducted before one of the officers of the city or a board therein provided for the purpose, the provision would have been of force. The latter fact, if not so conceded, is so evident that it requires no argument to establish it. If-the city could prescribe how the election should be held and for a prima facie determination of the result before a board of officers within the city, provided for that purpose, it could provide for a conclusive determination by a proceeding before a similar board. It therefore seems clear that the city acted within its rightful authority when it provided for a re-count and further contest to determine the result of an election after such result had been once determined and certified; The effect of providing for such re-count and further contest was to take from the first one any conclusive character which it might otherwise have possessed. These conclusions have not been strongly, if at all, combatted by relator, but it is contended by him that there was no power in the city to confer any jurisdiction upon the superior court, and that for the reason that the re-count and further contest were under the provisions of the charter to be instituted-and conducted in that court, the whole provision in relation to such contest was void and of no effect.
Under our constitution the superior court is vested with jurisdiction in every proceeding not otherwise provided for. In this respect our constitution is broader than those of most of the states, and thereunder the superior court has jurisdiction of any and every proceeding by which a right is sought to be enforced of which some other court has not been given *611jurisdiction; and since it was competent for the city of Tacoma to provide for a re-count and to authorize it to be instituted in the interest of a defeated candidate, the superior court would have jurisdiction of such proceeding without any special provision to that effect. But the fact that there was in the charter a provision which gave the superior court jurisdiction could not take from it that which it would have had in the absence of such provision. The fact that the city had no power to confer jurisdiction upon the superior court could have no effect upon the right of the superior court to take jurisdiction by virtue of the constitutional provision; and the city having the power to give to the contestant the right to institute the proceeding, he was entitled to have such right enforced in the superior court of the county. To carry the contrary contention to its legitimate conclusion would compel a holding that no new right which might be acquired by a citizen could be enforced in a court until the legislature had by express provision clothed such court with jurisdiction of that class of rights. But new classes of rights claimed by one citizen against another are arising every day, and no one would contend that the proper superior court would not have jurisdiction to determine as to such rights because of the fact that they had arisen since any legislation in reference to jurisdiction of such courts had been enacted. If the city of Tacoma by its charter had authority to confer the right upon the defeated candidate to have a re-count, such right was one which he was entitled to have enforced, and no other forum having been provided for its enforcement, the superior court must have jurisdiction to enforce it.
But it is claimed that the subject of elections and election contests is political and not judicial. What *612was said in the case of Parmeter v. Bourne, 8 Wash. 45 (35 Pac. 586, 757, might tend in some degree to support this claim, though even that case did not, in my opinion, go to such an extent as to fully sustain such claim. But, as I understand it, this court has, in at least two cases decided since that one was, substantially modified the rule announced therein. In Rickey v. Williams, 8 Wash. 479 (36 Pac. 480), and in Krieschel v. County Commissioners, 12 Wash. 428 (41 Pac. 186), it was held that the courts had jurisdiction to inquire into the result of an election for the location of a county seat, and while it is true that in one or both of those cases some stress is placed upon the fact that, the courts must of necessity have jurisdiction to prevent a violation of the constitutional provision, that no county seat should be moved until certain formalities had been complied with, yet all that was said could only be justified upon the broad ground that wherever a private right had been acquired the courts had jurisdiction to entertain a proceeding for the protection of such right.
Here the right was given to the contestant to have-a re-count of the ballots for the purpose of determining whether or not the prima facie determination of the result was what it should have been, and having this right and there being no method provided for its protection excepting by a judicial proceeding, its determination was within the jurisdiction of the superior court. The provision as to the contest in no manner attempted to enlarge the jurisdiction of the superior court. As well might it be said that parties attempted to enlarge or restrict the jurisdiction of such court, when they, by express contract, provided what should he the effect of the putting in evidence of an instrument executed by them. A party having taken the *613necessary steps is entitled as a matter of right to have certain evidence considered by the court, and its effect declared. The same rule will require of the courts to proceed to re-count the ballots cast at an election for the purpose of determining the result of such election, whenever by proper authority the right has been conferred upon an individual to have such result determined.
In my opinion it was by virtue of this rule that this court in the case of Howe v. Barto, 12 Wash. 627 (41 Pac. 908), held that it was within the power of the city of Seattle to provide the force which should be given to a tax deed issued under its authority. It was there decided that, by reason of the fact that the city had a right to levy taxes and sell the property upon which the levy was made, and issue a deed therefor, it was competent for it to provide the force which should be given to such deed, by the superior court, when put in evidence. This holding can be sustained only upon the theory that it was within the power of the city to provide how a right obtained under its charter should be enforced in the courts. It is true that it was stated in the opinion in that case that it was beyond the power of the city to have directed the method of procedure in such court, but what was thus said in no manner tends to distinguish that case from the one at bar. The right arose under the charter and its measure was defined by such charter, and it was held that the courts had jurisdiction to enforce such right. The provision under consideration similarly gave to the contestant a certain right — that of a re-count — and the course of reasoning which induced the courts to hold that they had jurisdiction in the case last cited would sustain the jurisdiction of the superior court in the case under consideration.
*614But even if the city had not the power to incorporate the provision in question in its charter by virtue of authority conferred by the act of the legislature, it had, in my opinion, full power so to do by virtue of the provisions of the constitution under which it was organized. It is conceded that if the legislature had passed a charter containing the provision under consideration, it would have been of full force, and would have clothed the superior court with jurisdiction to entertain a proceeding thereunder. But it is claimed that the freeholders’ charter has not the same force that it would have had if enacted by the legislature; that the power of the- city to frame such charter- must be measured by the act of the legislature upon that subject, and that anything which might be included in such charter, not authorized by the act of the legislature, would be without force.
The extent of the power of cities of more than 20,-000 inhabitants in framing charters for themselves has been several times before this court. In some of the cases that may have been said which tends to support the contention that every provision in such charters must, to be effective, be founded upon some power conferred by the act of the legislature authorizing the adoption of such charters. In none of them, however, do I believe it to have been necessary to go to that extent to decide the questions involved, and wherever language has been used which seemed to support such contention, I have felt obliged to dissent, but have not stated my reasons for so doing, and as this has happened more than once, and the question is again involved, it is but just to the majority of the court and to myself that I should state my position •upon this question. It is that the constitutional provision, under which cities having more than 20,000 *615inhabitants were authorized to adopt freeholders’ charters, gave to the cities which might organize thereunder the right of independent local municipal government; that under the right thus granted, these cities could provide in their charters for the exercise of every municipal power, subject only to the restrictions in the constitution and such as might be prescribed by general acts of the legislature.
The theory of the constitution makers in adopting this provision was that the inhabitants of cities of this class could best decide as to the ¡lowers which could wisely be vested in the body politic of which they were to be the constituent members; and that for that reason they should be left entirely free to adopt such charters as they chose, subject to the single provision that such charters must not conflict with the constitution itself or with the general laws of the state enacted thereunder. And the intention was to give to such cities the absolute right to legislate as to their own municipal affairs, subject only to the constitution and the general laws of the state. If such was the effect of this constitutional provision, it must follow that every provision of the charters of such cities, granting or defining a municipal power or right, must be given force unless it is found to conflict with some provision of the constitution or of a general law of t.he state.
That the legislature would have had power without any constitutional provision to have authorized such cities to adopt charters for themselves cannot be questioned. Hence, if any other construction is to be given to the constitutional provision than that thereby the right to frame such charters was given to such cities, the placing of it in the constitution was but an idle ceremony without any force whatever. That it *616was intended by the constitution makers to have force is evident and that intention should, in my opinion, be given effect by the courts. It is not for them to determine as to whether or not this provision of the Constitution was a wise one. It is sufficient for them to determine what the constitution makers intended, and that such intention was made to appear by the language used, to make it their duty to give such intention full force. I therefore feel compelled to hold that the power to enact the several provisions of the freeholders' charter is derived directly from the constitution and not from the act of the legislature.
It is possible that it was necessary for the legislature to provide some method by which it might be determined that a city had over 20,000 inhabitants, and was thus brought within the provision of the constitution, before it was authorized to act thereunder; but that being done, no further affirmative action was required on the part of the legislature. Thereafter, the legislature had nothing further to do as to the government of cities which organized under such constitutional provision, except that it might by general laws restrict the authority conferred by such constitutional provision. And it is probable that any city, without any such action on the part of the legislature, had the right to proceed under the constitutional provision subject to the risk of having its action nullified by an affirmative showing that in fact it did not have the number of inhabitants necessary to authorize it to proceed thereunder.
If it be held that the power to frame a system of local self-government is derived directly from the constitution, then it must be held that the power was thus conveyed to adopt any charter which it would have been competent for the legislature to have enacted *617for such city, except as such power was restricted by the constitution itself. But few states have constitutional provisions similar to ours. It is, therefore, necessary to determine this question more as one of principle, than upon authority, and when so determined it seems clear that such a construction of the constitutional provision as will make it mean something, rather than one which takes from the provision any substantial effect, should be adopted. An examination of such authorities as there are upon the subject will tend strongly to support the construction for which I am contending. In both California and Missouri the decisions have been uniform to the effect that the constitutional* provision conferred upon the cities to which it applied full right of self-government, under which they might enact such charters as they saw fit, subject only to the general laws of the state; that by the general laws of the state their powers might be restricted, but that from the constitution itself they derived the complete power of self-government. See State v. Field, 99 Mo. 352 (12 S. W. 802); People v. Hoge, 55 Cal. 612; St. Louis v. Western Union Tel. Co., 149 U. S. 465 (13 Sup. Ct. 990).
Other cases might be cited from the states of Missouri and California, but they all announce the same ■doctrine as those above cited, and no case from a state having such a constitutional provision can be found which tends to support a contrary doctrine. It follows that upon authority it must be held that, our constitutional provision conferred full authority upon cities of over 20,000 inhabitants to adopt their own charters.
But it is claimed that this court has in several cases announced a contrary doctrine. In my opinion, however, few if any of the cases relied upon announce principles inconsistent with the construction for which *618■I am contending. In re Cloherty, 2 Wash. 137 (27 Pac. 1064), in which it was held that it was not competent for the city of Tacoma in its freeholders' charter to provide for a municipal- court, and that such court could be provided for only by an act of the ■legislature, is one strongly relied upon, and if there were nothing in the constitution in reference to the organization of the courts of the state, it would have to be conceded that this case announced principles not in harmony with the construction contended for. But the constitution itself provides that the courts of the state should be certain designated ones and such other inferior courts as might be provided for by the legislature. The effect of this provision was to prohibit any other body than the legislature from providing for a court. And what was said in that case, interpreted in the light of the copstitutional provision as to the courts of the state, was consistent with the contention that these cities derived full power from the constitution, excepting as restricted by express provisions of the constitution itself or of general acts of the legislature.
Another one of these cases is that of State, ex rel. Snell, v. Warner, 4 Wash. 773 (31 Pac. 25), but in my opinion what was there held was foreign to the question under consideration. What was there decided was that a city of more than 20,000 inhabitants could not, without legislative aid, take in adjoining territory. To have held otherwise would have been not only to authorize cities of more than 20,000 inhabitants to provide for their own government, but also to provide for the government of communities outside of their .limits.
Still another case is that of Seymour v. Tacoma, 6 Wash. 138 (32 Pac. 1077), but as I understand that *619case, all that was therein decided was that the state law having provided that registration should be necessary only at elections for the election of officers, the adoption by the city of such state law did not make it necessary that voters should register before being allowed to vote in such city upon the question of the issuance of bonds.
The case which most nearly sustains the contention of the relator is that of Tacoma v. State, 4 Wash. 64 (29 Pac. 847), and it can be distinguished from the one at bar. What was therein held was that the city of Tacoma did not have power to condemn land for the use of the public; and this holding might be sustained upon the doctrine that the regulation of the right of eminent domain was peculiarly within the province of the legislature, and was not within the powers of a municipal corporation.
On the other hand, several cases not before referred to, though not directly in point, tend strongly to sustain the doctrine that cities of this class derive power to adopt charters directly from the constitution. See Reeves v. Anderson, 13 Wash. 17 (42 Pac. 625); Scurry v. Seattle, 8 Wash. 278 (36 Pac. 145).
The order to show cause should be vacated and the proceeding dismissed.