general laws, a city, under Laws 1903, c. 186, | five commissioners, who shall constitute the 1, may provide for the initiative and refer- council, and one of whom shall be mayor, endum. Turner & Geraghty, for appellant. Fred B. Morrill, Burcham & Blair, and H. M. Stephens, for respondents. DUNBAR, C. J. The only question in this case arises on the complaint, the defendant having filed a demurrer to the complaint, as well as an answer, and the parties having stipulated in open court that the answer be not taken as waiving the demurrer, and that the court might render judgment on the pleadings as they stood. Plaintiff consented to this method of disposition, because the answer failed to deny any material allegation of the complaint. The demurrer to the complaint was sustained, and from the judgment following, this appeal is taken. The complaint, in brief, is to the effect that an election was held on the 27th day of September, 1910, by the qualified electors of the city of Spokane, at which were chosen 15 freeholders to prepare a new charter, and that on the 11th day of November, 1910, said body of freeholders filed with the clerk of said city the so-called new charter. The charter is set forth in the complaint and made a part of the same. It is alleged that the so-called charter undertakes to, and does in substance and in fact, abolish the office of mayor of the city of Spokane and the council of the city of Spokane, and undertakes to substitute in place of said mayor and council five commissioners, in whom is reposed all municipal power, both legislative and executive; also abolishes the provisions of the city charter in force, providing for the election by the qualified electors of the city of the mayor and council; and also undertakes to abolish and do away with the provisions of the charter then and thereto'fore in effect, dividing the municipal power of the city between legislative and executive departments, each independent of the other; all of which, it is alleged, is contrary to the laws of the state of Washington. Many other allegations are made in the complaint, but these are sufficient to raise the questions discussed. The prayer was for a restraining order, to prevent the calling, advertising, and holding of an election for the election of the commissioners provided for in the charter, and to prevent the abdication of the officers now in power. The charter provides that all the power in the city, unless otherwise provided by the charter, shall be exercised by, through, and under the direction of and that the commissioners and council shall be subject to the order and direction of the people at all times by the initiative, referendum, and recall provided for in the charter. It provides that each commissioner shall be entitled to a vote; that the mayor shall not have any veto power; and that the executive and administrative powers, authority, and duties, not otherwise provided therein, shall be distributed among five departments, as follows: Department of public affairs; desafety; department of public works; and partment of finance; department of public department of public utilities; that such distribution among the various departments shall be made and may be changed by ordinance; that the council shall prescribe the powers of the officers and employés, etc. These provisions, we think, are sufficient to present the case. The main contention of the appellant, as we understand it, is that, section 6 of the act of 1889-90, p. 223, which is section 740 of Ballinger's Ann. Codes & St. (Pierce's Code, § 3733), and which act provided for the government of cities of the first class, provided for a system of government which contemplated an executive and a legislative department, the mayor to be invested with certain executive powers separate and distinct from the powers conferred upon the council, and that the charter under discussion violates this provision of the law by merging the executive and the legislative powers of the city officers, thereby stripping the executive head-the mayor-of any distinct, executive powers. It may be conceded from the outset that, while cities of the first class have the constitutional right to frame their own charters, the charters so framed are subject to and controlled by general laws. Section 10, art. 11, Const. Wash. And this is all the constitutional limitation that there is. So that it becomes our duty to see if any of the provisions of the charter are in contravention of any legislative enactment. That portion of section 6 of the act of 1889-90 pertinent to this inquiry is as follows: "The legislative powers of any city organized under the provisions of this act shall be vested in a mayor and a city council, to consist of such number of members and to have such powers as may be provided for in its charter, who, together with such other elective officers as may be provided for in such charter, shall be elected at the times, in such manner and for such terms, and shall perform such duties and receive such compensation, as may be prescribed by such charter." Section 7 of the same act (Ballinger's Ann. Codes & St. § 741 [Pierce's Code, § 3734]), is as follows: "Any city adopting a charter under the provisions of this act shall have all the powers which are now or may hereafter be conferred upon incorporated towns and cities by the laws of this state, and all such powers as are usually exercised by municipal corporations of like character and degree, whether the same shall be specifically enumerated in this act or not." Section 1 of chapter 186 of the Laws of 1903, page 393, an act providing for direct amendments of city charters, is as follows: "On petition of a number (equal to fifteen per cent. of the total number of votes cast at the last preceding municipal election) of qualified voters of any municipality having adopted a charter under the laws of this state, asking the adoption of a specified charter amendment, providing for any matter within the realm of local affairs or municipal business, the said amendment shall be submitted to the voters at the next regular municipal election, occurring thirty days or more after said petition is filed, and if approved by a majority of the local electors of the municipality voting upon it, such amendment shall become a part of the charter organic law governing such municipality." It is contended by the respondents that this section repeals section 740 of Ballinger's Ann. Codes & St., and that it has been so decided by this court in Hindman v. Boyd, 42 Wash. 17, 84 Pac. 609, and in Hartig v. Seattle, 53 Wash. 432, 102 Pac. 408. It is insisted by the learned counsel for appellant that the language used in the latter case, to the effect that Hindman v. Boyd held that the act of 1903 repealed by implication section 740, supra, was too broad, and upon further examination and reflection we are compelled to admit the justice of the criticism. But notwithstanding this, it is obvious that the rationale of the decision in Hindman v. Boyd was to hold section 740 repealed to the extent of granting larger and more extensive powers to the city government, and that the limitation in the former law, to the effect that the legislative powers should be vested in a mayor and a city council, had been modified. Speaking to this question, the court said: "It is practically conceded by appellants that, if the statute, section 740, supra, were not in existence, it would lie with the people to discharge legislative functions. It is contended, however, that the statute is in full force, and that it is prohibitive of legislation in any manner except by the mayor and council. It is argued that the act of 1903 in no way affects the provisions of said section 740. It is true the act does not refer to the former statute; but if it reaches the same subject, it should be held to affect the older statute, in so far as it treats of the same subject. The later act provides that charters may be amended in the manner outlined, 'providing for any matter within the realm of local affairs or municipal business.' The terms could not be said to have vested the power to legislate with respect to franchises exclusively in the mayor and council, the later one authorizes the people to reserve that power to themselves, since they may amend the charter providing for any matter 'within the realm of local affairs.'' Under this decision and the broad powers conferred by the statute which was held to apply, it cannot be contended that the charter provisions complained of in this case go beyond the realms of local affairs or municipal business. It is, however, contended by the appellant that the phraseology employed should, in the interest of moderation, receive judicial construction; that it is the duty of courts to construe legislative acts so as to effectuate legislative intention; to confine broad language, going beyond legislative intention, within narrow limits; and to extend language not coming fully up to the legislative intention to a broader application, in order that the will of the lawmaking power may be effectuated. Undoubtedly, it is true that the central idea should be to effectuate the legislative intention. But to discover that intention is a difficult proposition. It seems to us that the canons of construction recommended by the learned counsel are so flexible, and the powers conferred upon the court so unhampered, that there would be great danger that the intent of the Legislature would too frequently be found to be simply a reflection of the views of the court on the question of the public policy involved in the act construed, which would in reality be a usurpation of the legislative functions. Some authorities and courts, especially the English courts, have recognized what they are pleased to term an "equitable" construction; but it is the concensus of judicial opinion that, while equitable construction may be tolerated in remedial statutes, it should always be resorted to with great caution, and never extended to mere arbitrary regulations of matters of public policy. When the language of the act is plain, free from ambiguity, and devoid of uncertainty, it is unanimously held that there is no room for construction, and that inconvenience following the enforcement of the law as expressed can have no weight in the construction of the statute. Sedgwick on Constr. Stat. & Const. Law, p. 265, in discussing this question, says: "Of those rules of construction, none can be more dangerous than that which, distinguishing between the intent and the words of the Legislature, declares that a case not within the meaning of a statute according to the opinion of the judges shall not be embraced within the operation of statute, although it is clearly within the words; or, vice versa, that a case within the meaning, though not within the words shall be embraced. We should invariably deem it our duty to defer letter of the statute, when free from ambi- | Judge Dillon said: "In this country the docguity and doubt, without indulging in specu- trine has been recognized that corporations, lations, either upon the impropriety or hard-public or private, could be created only by ship of the law." But we think the position of the appellant is untenable, even under the provisions of section 740. There is nothing in that section which undertakes to specify or limit the duties of a mayor as an executive officer. In fact, he is not even described as an executive officer, but as a legislative officer; and the objection to the proposed charter is that it in reality makes nothing of him but a legislative officer. It is contended by the learned counsel for appellant that, while the section does not specifically provide that the executive power shall reside in a mayor, it is necessarily implied by the mention of that official; that if no function other than acting in conjunction with the city council in matters of legislation was intended to be performed by the mayor, no mention of such official would have been made, and the mandate of the law would have been simply that the legislative power of the city should be vested in a city council. Hence it is necessarily implied that cities of the first class are each to bave a mayor possessing the distinguishing characteristics of that office. But there is no room for an implication when the plain, mandatory provisions of the statute are to the contrary. And as we have seen, section 740 provides that the mayor and council shall have such powers as may be provided for in its charter, and that they shall perform such duties and receive such compensation as may be prescribed in such charter. It is further contended that the matter does not rest on implication alone, because section 7 of the act of 1889-90, above quoted, confers on cities of the first class powers which are now, or may hereafter be, conferred upon incorporated towns and cities by the laws of this state; and as to towns and cities of the second and third classes, it is found that each of them is provided with a mayor, and the powers of that functionary are clearly defined. It seems to us that, instead of this proving the theory contended for by the appellant, it tends to strengthen the opposite theory, viz., that larger powers were intended to be conferred upon cities of the first class than upon cities of the second class, and that cities of the first class are therefore not subject to the limitations imposed by the law quoted upon towns and cities of the second and third classes. It does not necessarily follow, from the fact that the statute provides that the legislative powers of the cities of the first class shall be vested in a mayor and city council, that the mayor is, within the contemplation of the law, an executive officer. Nor do the cases cited by counsel for appellant sustain that view. In Cochran v. McCleary, 22 Iowa, 75, which was a case embracing the right of act of the Legislature, and they and their officers had and could exercise only the powers granted to them, either expressly or by implication." Inasmuch as our statute sees fit to relegate to the charter the enumerating and conferring of the powers upon the mayor and the councilmen, it would seem, under the theories of the case cited, that there is where the power would rest. In Waldo v. Wallace, 12 Ird. 569, it was held that the mayor of a city, organized under the General Laws of 1857, was a judicial officer within the meaning of that constitutional provision, if at the time of his election no order had been made by the city council for the election of a city judge and no such judge had been elected, and that the statute conferring judicial powers upon the mayor of a city was not unconstitutional; and that was the real question in the case. In the discussion of the case, however, it was said that the powers and duties of a mayor or other head officers of a corporation depend in general upon the provisions of charters, or prescriptive usage of the corporation, or express provisions of an act of Parliament, but that the power and authority which mayors possess, being given to them by local regulations, vary in different places. So that it repudiates the idea that a mayor has, by virtue of his position as mayor, any executive or other authority which is not conferred upon him by the Legislature, or by the charter under legislative direction. Bouvier, in describing a mayor, says: "It is generally his duty to cause the laws of the city to be enforced, and to superintend inferior officers such as constables, watchmen, and the like. But the power and authority which mayors possess, being given to them by local regulations, vary in different places." Anderson's definition is: "The chief or executive magistrate of a city. His principal duty is to enforce the laws of the city. He may also preside over the mayor's court, which has jurisdiction, concurring with the courts of other committing magistrates, over offenses perpetrated within the city limits, and of special matters given by statute.” So that it will be seen that his duties may be legislative, executive, or judicial, according to the law in force in his jurisdiction. The state law nowhere confers upon the mayor the right of veto. He does not possess it, unless it is conferred by charter. Something has been said to the effect that this charter cannot be sustained under the republican form of government guaranteed to the states by the federal Constitution. Section 4, art. 4, of that document provides: "The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion. In addition to state government, it means only such a gov-| writings and public addresses, the constituernment as is under the control of the peo- tional debates, and the provisions of the inple; or, in other words, a representative gov- strument itself, as adopted. And whatever ernment. At the time of that enactment, may be the form of words employed by the there was no thought of an encroachment on lexicographers-and they are more or less the part of the people, and consequently no varied-to define what is meant by the exattempt to guard against it. The apprehen- pression 'a republican form of government,' sion was exactly the reverse. It was an en- it is clear that it was understood by the facroachment upon the rights of the people thers to mean a government by the people, which the fathers sought to prevent; and it through representatives appointed by them would be impossible to violate the spirit of to the various departments, executive, legisthat provision by enlarging the representa- lative, and judicial, as provided, either by tive powers of the people. The distinction | direct vote or through some intervening ofbetween a democratic form of government ficer or body by them selected, and appointand a republican form of government, in the ed by direct vote for the purpose. Now, at sense in which the term is used in the fed- the time the Constitution was adopted, as it eral Constitution, is more theoretical than is well known, there were in existence 13 real, for the vital idea in both is a govern- states, each thereof supreme as related to its ment by the people; and whether the will of own domestic affairs, and in each of which the people be expressed through a representa- the government was divided into three detive or through a personal announcement, it partments, executive, legislative, and judicial, is but a difference in form of expression. and carried on through representatives seThe action of the representative must pro-lected from time to time by vote of the peoceed upon the theory that he is expressing ple. It is to be noted, however, that the the will of the constituency; otherwise the form of local government provided for mutheory of a republican form of government is a delusion. That the power never has been supposed to apply to minor departments of the state is shown by the form of county governments which have been provided for by so many of the states. The board of county commissioners, clothed with the authority with which they are clothed, especially in our state, is a common form of government by commission, which is universally sus tained. Sustaining the view which we have expressed with relation to the object of the constitutional guaranty, it is said by Mr. Cooley, in his work on Constitutional Limitations, page 42: "The last provisions that we shall here notice are that the United States shall guarantee to every state a republican form of government, and that ne state shall grant any title of nobility. The purpose of these is to protect a Union found ed on republican principles, and composed entirely of republican members, against aristocratic and monarchical innovations." Nor are we without the authority of cases to sustain this view. In Eckerson v. City of Des Moines, 137 Iowa, 455, 115 N. W. 177, where the question of republican form of government was involved, under an act of the General Assembly providing for the government of certain municipalities where the initiative and referendum was brought in question, the act was sustained; and it was held that the contention that the constitutional guaranty which we have just mentioned ran not alone to the state, but to the various subdivisions thereof, was not tenable; but that the purpose of the federal Constitution was to provide a form of government, republican in character, for the states as a united whole. Said the court: "This is manifest from the nicipalities and other state subdivisions varied in the different states. In some, pure democracy obtained through the medium of the 'town meeting'; in others, boards of selectmen were chosen, etc. That the form of government in vogue in these states was republican was not made the subject of question when the federal Constitution came to be considered. No one of such states was called upon to amend its plan of government, state or municipal, to bring it into harmony with the plan proposed for the federal government." And this was the view expressed by this court in Hartig v. Seattle, supra, where it was said, in discussing the validity of the charter of Seattle concerning the power to provide for the initiative and referendum: "It can scarcely be contended that this plan is inconsistent with a republican form of government, the central idea of which is a government by the people. Whether the expression of the will of the people be made directly by their own acts, or through representatives chosen by them is not material. The important consideration is a full expression." This doctrine is based upon the distinction between the Constitution of the United States and the Constitutions of the different states. The Constitution of the United States is a grant of power; that is to say, Congress was granted such powers only as were expressed in the grant. The remaining powers rested in the people. And when looking for the powers of Congress, we search for powers delegated; while the Constitution of the state is simply a limitation upon the powers of the Legislature, and all power which is not limited by the Constitution inheres in the Legislature as a representative body, and primarily in the people. Hence, Judgment affirmed. limitation on the part of the powers of the | in the proposed charter, the demurrer was city government to enact laws through the properly sustained. medium of a charter is that they shall be in accordance with general laws; and the Legislature, as we have seen, being the depositary of authority under the Constitution, we can look for restrictions upon the rights of the people only to the general laws. In Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488, it was held that the charter of the city of Galveston, in conferring upon the president and board of commissioners, PARKER, MORRIS, MOUNT, FULLERTON, CROW, GOSE, and CHADWICK, JJ., concur. (62 Wash. 286) STATE v. WILLIAMS. (Supreme Court of Washington. March 3, 1911.) 1. CRIMINAL LAW (§ 422*)-EVIDENCE-AD MISSIBILITY. Even though no conspiracy be charged in the information and the defendants are separately tried, evidence of conversations and statements of a codefendant are admissible in a prosecution for obtaining money under false pretenses, where there was a concerted action between them. Law, Cent. Dig. 88 984-988; Dec. Dig. § 422.*] [Ed. Note. For other cases, see Criminal 2. CRIMINAL LAW (8 761*)-INSTRUCTIONSCOMMENT ON EVIDENCE. Where the defendant in a prosecution for false pretenses denied that money found on his person was money stolen, an instruction that the possession of money recently stolen raised no presumption that the possessor was the thief, but is a circumstance, taken with any exdetermining defendant's guilt, was not improper planation of the possession, to be weighed in as a comment on the evidence, in assuming that the money was recently stolen. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771; Dec. Dig. 8 761.*] 3. CRIMINAL LAW (§ 1172*)-APPEAL AND ERROR-HARMLESS ERROR-INSTRUCTIONS. Where the instructions are more favorable to a defendant than the evidence warrants, a technical defect in one of them will be considered as harmless error. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3160; Dec. Dig. § 1172.*] Department 2. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge. J. B. Williams was convicted of obtaining money under false pretenses, and appeals. Affirmed. Welch & Crotty, for appellant. E. K. Brown, for the State. CHADWICK, J. The testimony of the state shows that on the night of the 2d day of December, 1909, the prosecuting witness, Reuben Johnson, took Northern Pacific train No. 258, east-bound, leaving Seattle at 11:30 at night; that between Seattle and Auburn he picked up an acquaintance with appellant's codefendant, informed against as Brown, who represented to him that his name was Harris, that he was engaged in the butchering business in East St. Louis, that his brother had died at Everett a month or two before, that he had gone to Everett at the request of his brother's wife, to assist her in fixing up, his brother's affairs, that he had so far accomplished this purpose as to permit his sister-in-law to leave Everett, and |