(dissenting) — I dissent. If, as the majority holds, the City of Yakima by its own legislative action can render moot litigation which it commenced, asking for a determination as to whether the initiative measure with which we are here concerned should be presented to the electorate of that city, we have both a frustration of the initiative process and a flagrant abuse of the judicial process.
The facts are set forth in the majority opinion, and I would only emphasize that the ordinance proposed by the initiative was an amendment to existing taxing ordinances.
The judicial process was invoked by the City of Yakima when it asked for a declaratory judgment holding that initiative to be invalid. This procedure delayed the immediate (within 30 days) vote on the initiative required by charter and statute (if the city commission refuses to pass an ordinance proposed by an initiative). Before its declaratory-judgment action could come to trial, the city by the legislative legerdemain described in the majority opinion, switched the legislative base for the tax structure which the initiative sought to amend, and the city now urges that such legislative base is now a completely inoperative phantom of the law and any amendment of it would be useless.
My view is that when an initiative containing the requisite number of signatures of registered voters is filed with the city commission, the Yakima City Charter specifically limits the action that the commission can take to either passing the proposed ordinance “without alteration,” or submitting it “without alteration” to
a popular vote at a special election which must be held within thirty days after the date of the ordering thereof:
The applicable state statute (RCW 35.17.260) likewise provides that the city commission, after proper certification *362of the requisite number of signatures, shall either “Pass the proposed ordinance without alteration,” or submit it “to a vote of the people” at a special election.
It seems to me that the restriction on any alteration of the proposed initiative by the commission and the requirement that it either pass the proposed ordinance or submit it to a vote of the people, impliedly restricts any further amendment or change in the subject matter covered by the initiative, except that the city might also submit at the same election any alternative ordinance it might propose. (The charter provides that the commission may “submit to popular vote for adoption or rejection at any election any proposed ordinance in the same manner and effect as provided in this article for submission on petition.”)
Ordinarily, when an ordinance has been suspended by a referendum and is repealed by the city council, the council cannot enact another ordinance in all essential features like the repealed ordinance and thus frustrate the referendum. See Gilbert v. Ashley, 93 Cal. App. 2d 414, 209 P.2d 50 (1949); In re Stratham, 45 Cal. App. 436, 187 Pac. 986 (1920); State ex rel. Megnella v. Meining, 133 Minn. 98, 157 N.W. 991 (1916).
Nor can the city commission in this case be permitted to frustrate the initiative by a repealing and reenacting procedure. If there is any question as to whether the city commission was, or was not, deliberately endeavoring to nullify the initiative, the case should be remanded for a determination of that issue of fact. Personally, I am prepared to hold, on the record before us, that the legislative shenanigans of the Yakima City Commission (which the majority says rendered moot the declaratory-judgment action which the city had brought) were deliberately intended to nullify the initiative and hence have no validity; and, consequently, the ordinances which the proposed initiative ordinance seeks to amend are still in effect. I would further hold that the proposed ordinance is not of a character which is excluded from being enacted by the initiative process and, if adopted, it would be valid except as to the tax refund provisions, which, as the majority have pointed *363out, would be unconstitutional. I would affirm the trial court’s order directing an election upon the ordinance proposed by the initiative.
Rosellini, C. J. and Hunter, J. concur in the result of the dissent.