(dissenting)- — I concur in what is said by Judge Gose. The result of the court’s decision is, that a city council can, in order to meet what it conceives to be the living expenses of a citizen, arbitrarily take from the substance of one man and give it as a bounty to another, and that, without measuring or even considering the ability of the subj ect of its impressment to pay the tax.
The opinion of the court has taken a wide range, but it should be borne in mind that we did not in our former opinion hold the ordinance to be unconstitutional. We did not hold that the legislature might not, by general law, authorize a city to pass the ordinance in question. We *241did not hold that a city could not, by charter amendment, provide for the payment of a minimum wage higher than, or even unreasonably higher than, the current or going wages. We did not hold that a city could not fix a wage scale to be paid its employees out of the general fund, or that it could not fix the hours of labor. Our holding was, in its essence, no more than this: that an agent is bound to do for his principal, when pursuing the trust relation, as well as he could have done for himself. Until the decision in this case was pronounced, this principle had been regarded as fundamental.
It may be inferred from what is said in the majority opinion that we held the ordinances of the city of Spokane fixing a minimum wage to be unconstitutional. In the former opinion, the constitutionality of ¡the ordinances was not questioned. The judges who participated in that decision, with one exception, had no doubt that such ordinances, if properly passed, would do no violence to any constitutional guaranty of personal or property rights.
There is, and there can be, but one question for solution: that is, whether an ordinance, passed without the sanction of a general law passed by the legislature and approved by the governor, which fixes a wage from twenty-five to forty per cent higher than the current wages for like labor in the same place, can be taxed against an unwilling citizen without violating that fundamental principle of the law that municipal ordinances must be reasonable. We held, under the facts of the case before us, that the difference was so great that the ordinance was in its operation unreasonable. We did not hold or preclude ourselves from holding under a different state of facts, that the wages fixed by the ordinance might not be reasonable. The majority opinion seems to me to be an endeavor to meet a sociological problem with which this court can have nothing to do, for it is a legislative and political question, and the argument of the majority does not touch the premise of the question before us. *242If approached at all, it is lost sight of in the assertion of these beneficent principles which are, at the present time, engaging the attention of thoughtful persons all over the world and which will in time be taken care of by appropriate legislation. In the absence of the authority to which Judge Gose has adverted, courts cannot, and should not, be influenced by the opinions of political propagandists, however engaging and however reasonable they may seem to be. Humanitarian impulses are the well-springs of social progress, but to define them and to put them into the forms of law is not the work of the courts. Their work is limited by narrower bounds, and wisely so; for people of this and all English speaking countries have undertaken, by express limitation and by the strongest implications, to keep the law making powers in the people ■ themselves. The duty of a court is to follow the law as made by the people, and not to create a rule to meet a situation, however urgent; for the power to frame a humanitarian impulse into law (judge made) implies a power to frame a law that will usurp and cripple the rights of the people.
We have the law before us; Judge Gose has said, in his dissenting opinion, what it is: that is, that the power to do these things is in the legislature, and until it has spoken, it is the duty of the court to follow the law as it finds it. In this case, the court has followed a humanitarian impulse, and to that extent its action is to be applauded; but, in doing so, it has violated principles and commands that may invite those whose petitions should be more properly addressed to the law making powers to go to the courts and invoke the sympathy of the judges to the end that they will meet conditions not theretofore recognized by the people or by their representatives. This means but one thing, judicial legislation, which is judicial tyranny. This is especially so in this case. After the original decision was pronounced, the legislature convened in regular session. Bills were introduced in both the house and senate and an attempt was made to pass a law legalizing *243that which this court had held to be invalid. The bills were killed. The idea of taking from one and giving to another found no favor with the legislature. This fact, coupled with the decision previously rendered, would in itself be sufficient under the hitherto accepted canons of statutory construction to warrant a reaffirmation of our previous decision. To hold otherwise makes this case sui generis.
I want to take exception to the concluding clause of the majority opinion:
“It is but fair to the members of Department One to say that the controlling questions in this case were much more thoroughly briefed and discussed on the rehearing than on the first presentation.”
I deny that the real question before the court was more thoroughly briefed and discussed on the rehearing. Every question that was properly before the court was briefed and orally argued. The former opinion of the court was given the mature consideration of every member of the court, and was sanctioned by all, with two exception's; one dissented, and the other was uncertain at the time. The briefs submitted on rehearing were longer. They quoted from the words and works of political economists and humanitarians, but they nowhere touched the law any closer than did the original briefs. In fact, they went beyond the law, and in some particulars, as it seems to me, are open to the criticism that they are coercive; or at least, an invitation to the court to subscribe to the political side of the controversy. In this sense, they were offensive and should have been stricken. Personally, I would be glad to see every man who labors paid a fair wage, more than a going wage, for I know that wages are too often hammered down to meet the bare necessities of the wage earner; but I have not the means to pay those who should be paid more, nor have I the right, when sitting in judgment on the affairs of my fellow men, to say that my neighbor shall pay more, and that by judicial mandate.
The humanitarian or economic phase of the question is *244not properly before the court, as I have undertaken to demonstrate, but since it has been discussed, I have this to say: In considering the necessity of the man who works upon a paving job, it is possible that the court has overlooked the rights and necessities of the small home owner whose property is improved against his will and who is really unable to meet an arbitrarily added cost. He may be no less a laboring man than the man who works upon a street contract. The fact that a man works for a paving contractor has not, hitherto, either in law, equity, or morals, given him a right to be considered over the man who is working in some shop or factory, or in some store or printing office, and who is undertaking to build for himself and his family a comfortable home. To this man who labors, the rule of the maj ority may mean loss and confiscation. A question of ethics might arise if the court had looked at both sides of the question and had been willing to see the necessities, the struggles, of the wage earner who is also the small home owner, and who is, in virtue of a court made law, made to bear a burden he had no reason to expect, and which he must have assumed to be beyond the power of the court to declare.
By what right the majority assumes to disregard the testimony in this case, and upon the report of the commissioner of labor, say what a reasonable wage is, I am at a loss to know. Courts have hitherto based their conclusions upon testimony; but assuming that the court is right, I could, if it were proper to do so, furnish documents and opinions of equal merit and of equal force to sustain the proposition that the modem tendency of our municipalities to create assessment districts, to issue" bonds, to put charges upon property, to buy prosperity on credit, must, in the end, inevitably force the one who now owns a home to give it up, and at the same time, deter the one who desires to put into realization the home instinct which is dominant in the heart of every normal man. Let it be remembered that, in compelling the home owner to pay from twenty-five to forty per cent more for *245the workman the city furnishes him, than he would have to pay if he had employed the same man, and this to meet the increased cost of living, the money collected for that purpose comes in the main from those who are equally deserving and whose necessities are equally as great. The court has made the necessities of the one his fortune. It has made the trust of the other his misfortune. /