Opinion Per CROW, J.

[58 Wash. In Hilzinger v. Gillman, 56 Wash. 228, 105 Pac. 471, this court said:

"Both the constitution and the general law recognize that large, growing cities should be empowered to determine for themselves, and in their own way, the many important and complex questions of local policy which arise, and it is only when some act in the execution of that policy conflicts with the general law or contravenes the constitution, that the act can be questioned."

The city of Seattle framed its charter, and the amendment now under consideration was adopted, by proper procedure and vote. It expressly directs that all members of the Municipal Plans Commission shall be citizens of the city. It is therefore apparent that the various organizations mentioned cannot, if they would, by any nominations they may make, impose upon the mayor the duty or necessity of appointing nonresidents. Although nonresident members of the several organizations may have a voice in nominating two candidates as eligibles for appointment, we fail to see how, in the absence of an express constitutional inhibition, that fact invalidates the charter amendment. The commissioners thus selected will be appointive, not elective officers. No resident of Seattle is deprived of any of his rights as a citizen or elector. The people by their own vote have authorized this method of selection. The commissioners will be legally appointed officers, irrespective of the incidental fact that the number of eligible persons from whom the mayor may appoint them is restricted by the charter amendment. The commission will employ men of national reputation to prepare and submit final plans. It cannot originate plans. It can only reject those suggested by a two-thirds vote. The commission itself originated with the people, who adopted the charter amendment, and will cease to exist after September 30, 1911, no provision being made for its continuance. Plans for improvements and works can only be adopted by a vote of the people. No legislative power is delegated to the commission in violation of the constitution or any general

law. The evident purpose of the amendment is to secure experienced, capable and representative citizens to serve upon the commission and select men of national reputation to prepare and submit comprehensive plans. The commissioners from the various organizations must be appointed by the mayor. The commission will be an advisory body only. Proposed plans are subject to a final vote of the people. It is therefore manifest that the authority conferred originates with the people, and that the plans prepared and suggested can only be validated or adopted by them. They have reserved a supervisory control in themselves, and are deprived of no constitutional right. It is no concern of ours whether the amendment has provided the best or wisest method for selecting the commission. It was adopted by the people under the authority of the constitution. The commissioners are not vested with legislative powers. They will make no levies of taxes, and the advisory functions which they are to perform do not conflict with any restrictions of the constitution or laws of the state. Miller v. Louisville, 30 Ky. Law 664, 99 S. W. 284.

Appellant further insists that the amendment is void because it confers authority upon the commissioners to approve vouchers for all expenditures incurred, and requires the comptroller to issue warrants upon the city treasury for the amount of such vouchers to be paid out of the Municipal Plans Commission fund. He insists that nonresidents, by nominating eligibles for appointment, will have a voice in the expenditure of the money raised by the tax authorized. We find no merit in this contention. The Municipal Plans Commission will be composed of residents of the city. Authority to approve vouchers for expenditures is lawfully conferred upon it. In State ex rel. Lowman & Hanford etc. Printing Co. v. Riplinger, 30 Wash. 281, 70 Pac. 748, this court sustained a similar charter provision, which compelled the comptroller of the city of Seattle to issue warrants upon the city treasurer solely upon the certification of the library

board without any action of the city council. The rule there announced is controlling here.

Section 12, art. 1, of the state constitution, provides that:

"No law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations."

Appellant insists that the amendment under discussion violates this section, as it grants a privilege to each of the fourteen organizations mentioned, and to their members, which is not granted to the members of other similar organizations, such privilege being the right to participate in the selection of members of the commission. This contention cannot be sustained. In State v. Vance, 29 Wash. 435, 458, 70 Pac. 34, a similar attack was made upon the jury law of 1901, which authorized the bar of the county to nominate four electors, two of whom were to be appointed as jury commissioners by the superior court; but the validity of the act was sustained. While it is true that some argument was predicated upon the fact that the members of the bar are officers of the court, that argument was not necessary to the conclusion reached. Discussing the term "privileges and immunities," this court said:

"These terms, as they are used in the constitution of the United States, secure in each state to the citizens of all states the right to remove to and carry on business therein; the right, by usual modes, to acquire and hold property, and to protect and defend the same in the law; the rights to the usual remedies to collect debts, and to enforce other personal rights; and the right to be exempt, in property or persons, from taxes or burdens which the property or persons of citizens of some other state are exempt from. Cooley, Constitutional Limitations (6th ed.) 597. By analogy these words as used in the state constitution should receive a like definition and interpretation as that applied to them when interpreting the Federal constitution. The right simply of recommendation, which it might be said has been conferred by the act under consideration, and by the order of the court

made in accordance with the provisions of that act, is not, in its very nature, such a fundamental right of a citizen that it may be said to come within the prohibition of the constitution, or to have been had in mind by the framers of that organic law."

The demurrer to the complaint was properly sustained. The judgment is affirmed.

RUDKIN, C. J., DUNBAR, PARKER, and MOUNT, JJ., con

cur.

[No. 8548. Department One. May 27, 1910.]

FRANK P. O'BRIEN, Appellant, v. AMERICAN CASUALTY COMPANY et al., Respondents.1

TRIAL VERDICTS-JUDGMENT-CONFORMITY TO VERDICT-HOSPITAL ASSOCIATIONS-MALPRACTICE. In an action for malpractice against a physician, and a hospital association and its successor by whom he was employed at different periods of plaintiff's treatment, a verdict against the hospital association separately for $2,000, against its successor for $4,000, and against the physician individually for $1,000, does not authorize a joint and several judgment against all the defendants for $7,000, nor against the physician for said sum, nor a joint judgment against any two of them, when read in the light of the court's instructions to the jury that they might bring in separate verdicts against the hospital association and its successors for negligence other than that of the physician, and against the physician individually for negligence while not acting as agent; nor a joint verdict against the hospital association and the physician for his negligence during one period of the treatment while the physician was in its employ, a joint verdict against the successor and the physician for another period while in its employ, and a verdict against the physician individually while not in the employ of either.

TRIAL-VERDICTS-CONFLICTING FINDINGS-HOSPITAL ASSOCIATIONS —MALPRACTICE JOINT AND SEVERAL LIABILITY. In an action for malpractice against a physician and a hospital association and its successor by whom he was employed at different periods of the plaintiff's treatment, in which the gravamen was the negligence and incompetence of the physician, the verdict is unsupported by the evi'Reported in 109 Pac. 52.

Opinion Per RUDKIN, C. J.

[58 Wash. dence and conflicting and there was a substantial mistrial, requiring a new trial, where the court instructed the jury that they might bring in separate verdicts against the hospital association and its successors for negligence other than that of the physician, and against the physician individually for negligence while not acting as agent, or a joint verdict against the hospital association and the physician for his negligence during one period of the treatment while the physician was in its employ, a joint verdict against the successor and the physician for another period while in its employ, and a verdict against the physician individually while not in the employ of either, and under the instructions the jury returned a general verdict against one association separately for $2,000, against the other association separately for $4,000, and against the physician individually for $1,000, and also answered special interrogatories to the effect that the $2,000 damages assessed against the hospital association was due to the negligence of the physician acting as its servant, during the only period of the treatment that the physician could have been acting individually; and a judgment for $1,000 against all the defendants notwithstanding the verdict is error, since any permanent injury resulted from the negligence of the physician and the findings fail to fix the responsibility therefor upon either the association or its successor.

Appeal by plaintiff from a judgment of the superior court for Pierce county, Chapman, J., entered July 12, 1909, for the sum of $1,000 damages for malpractice, upon special findings and the verdict of a jury rendered in favor of the plaintiff for $7,000, after a trial on the merits. Reversed.

H. R. Lea, for appellant.

F. S. Blattner and L. B. da Ponte, for respondents American Casualty Company et al.

William P. Reynolds and Hayden & Langhorne, for respondent Wheeler.

RUDKIN, C. J.-The defendant Lumberman's and Manufacturers' Hospital Association, hereinafter referred to as the Hospital Association, is a corporation organized under the laws of this state, and was, until succeeded by the defendant American Casualty Company, hereinafter referred to as the Casualty Company, engaged in the business of furnishing medical and surgical attendance and hospital ac