99 P.2d 938 | Wash. | 1940
The general election was held on the date specified, 5,922 electors voting for or against the proposition, 4,027 voting in favor, and 1,895 against. Messrs. Shumway, King and Giles were elected commissioners of the district, receiving 4,170, 3,783 and 3,629 votes, respectively. A total of 8,748 ballots were cast throughout the county at the general election. Three commissioners qualified and entered upon the performance of their duties, which they or their successors are still performing. Another commissioner in place of Mr. Giles was elected at an election held December 4, 1937, and Mr. King was reelected at a subsequent election held November 3, 1938.
January 3, 1939, George I. Shaw, plaintiff herein, alleging that he was a legal resident and taxpayer within the confines of the public utility district, and that he sued on his own behalf and on behalf of all other legal residents and taxpayers within the district, filed his complaint in this action, alleging the organization of the district; that the law required that the notice of election be posted in each polling place and in each election precinct not less than thirty days before the date of the election; and that the notice of election be published in a newspaper of general circulation thirty days prior to the date of the election. Plaintiff also alleged that, because the notice of election had not been posted and published for the time required by law, the purported election and establishment of the utility district were illegal, invalid, and void. Plaintiff further alleged that the defendant commissioners were about to levy a tax of one mill on the property of plaintiff *114 and all other taxpayers of Okanogan county, and that, because of the facts alleged, the tax was illegal and void. Plaintiff asked for a decree declaring the formation of the utility district invalid and a nullity, and that the defendant commissioners be permanently enjoined from proceeding further in connection therewith.
The defendants answered, admitting that no notice of the general election, other than those referred to in the complaint, were posted or published, alleging, however, that information concerning the coming election was conveyed to the electors generally in Okanogan county; that the matter of the proposed establishment of a utility district and the election of commissioners therefor was widely discussed throughout the county prior to the election; that, throughout that period, daily and weekly newspapers which circulated throughout the county, together with radio broadcasts, contained numerous and repeated references to the proposed creation of the utility district and the election of commissioners therefor; and that the election was matter of general knowledge among the voters of Okanogan county. Defendants further alleged that the electors of Okanogan county generally participated in the election, and that the vote cast represented a reliable expression of public opinion within the county upon the matter above referred to.
Plaintiff having replied, denying the affirmative allegations of the answer, the cause came on regularly for trial before the court, resulting in findings of fact and conclusions of law in favor of the defendants, followed by a decree dismissing the action with prejudice and declaring that public utility district No. 1 of Okanogan county was a municipal corporation duly organized, and that the defendants in the action were the duly elected, qualified, and acting commissioners thereof. From this decree, plaintiff has appealed, assigning *115 error upon the making of two findings of fact; upon the conclusions of law; and upon the entry of the decree dismissing the action.
Finding No. 6, of which appellant complains, reads as follows:
"That ever since the time that the petition for the establishment of the public utility district was filed with the auditor of Okanogan county up to the time of the election, on November 3, 1936, the questions of whether said public utility district should be created, and which, if any, commissioners thereof should be elected, were discussed widely among the electors of Okanogan county. During said time the daily and weekly newspapers which circulated throughout the county among the residents and electors thereof contained numerous and repeated references to the proposed creation of the proposed public utility district, and the election of the commissioners thereof. Said issues received very widespread publicity among the residents and electors of Okanogan county during all of said time, and the fact that the election on the proposition referred to and the election of the commissioners of the public utility district would be held on November 3, 1936, was a matter of general knowledge among the voters in Okanogan county."
By finding No. 8, the making of which appellant also assigns as error, the trial court, inter alia, found that
"The great body of the electors of Okanogan county participated in the election, with actual prior knowledge of the time and place of holding the election, and the vote cast at said election represents a reliable expression of public opinion within the county on the issues above referred to,"
concluding the finding by a statement of the numbers of votes cast for and against the formation of the district, and for the commissioners, all as hereinabove set forth. We do not understand that it is contended *116 by appellant that these figures are incorrectly stated in the finding.
As stated by appellant in his brief, the assignments of error generally involve the same question, and will be discussed together.
The general election laws of this state apply to public utility district elections, save that public utility district ballots shall be deposited in separate ballot boxes. Rem. Rev. Stat., §§ 11607 to 11609 [P.C. §§ 4498-13 to 4498-15]. Under the statute, notice of general elections shall be given by the appropriate election board
". . . by one publication in a newspaper of general circulation in the county, not less than thirty (30) days nor more than forty (40) days before the date of election, and by posting a copy of such notice at each polling place for such election not less than thirty (30) nor more than forty (40) days before the date of election," (Rem. Rev. Stat., § 5148-3 [P.C. § 2120-7c])
it being the duty of each county auditor to give at least thirty days notice of any general election, "by posting or causing to be posted up, at each place of holding election in the county, a written or printed notice thereof." Rem. Rev. Stat., § 5157. An election to determine whether or not a public utility district should be created shall be held at the time of the holding of a general election, and the same law controls the two classes of elections.
From the record in the case at bar, it appears beyond question that the proposition of establishing or rejecting a public utility district was thoroughly publicized throughout Okanogan county prior to the date of the election. The matter was discussed in the half dozen or more newspapers printed and circulated in the county, and in the "Wenatchee Daily World," which *117 circulates extensively in Okanogan county. The newspaper comment was both for and against, and at least two pamphlets concerning the election were circulated, to some extent at least, among the voters. Electors availing themselves of the privilege of exercising their franchise at the election in question voted for the president of the United States, as well as a governor of the state and other national and state officers. This action was commenced over two years after the election, and after two annual elections for choosing a commissioner for the district had been held.
We are convinced that the trial court's findings, of which appellant complains, are amply supported by the preponderance of the evidence.
[1] In considering the conclusions to be drawn from such a state of facts, several of our decisions must be noted.
In the early case of Seymour v. Tacoma,
"Certain rules as to notice of elections have become well settled, and none of them are better settled than that the formalities of giving notice, although prescribed by statute, are directory merely, unless there is a declaration that unless the formalities are observed the election shall be void."
In the case of State ex rel. Mullen v. Doherty,
In the case of Rands v. Clarke County,
It was held, in the case of Lee v. Bellingham School Dist. No.301,
In the case of Groom v. Port of Bellingham,
Finally, in the recent case of Vickers v. Schultz,
"We have consistently held that, unless the statute which prescribes the form and manner of publishing election notices, expressly provides that non-compliance with the statute will render the election void, it is regarded as declaratory rather than mandatory. The election will be held valid, even if there is a variance from the terms of the statute, if the election was a fair one; that is, if information concerning the election was communicated to the electors by means other than the official notices and if the electors generally participated in the election so that the election as held constituted a reliable expression of popular opinion."
The court also said:
"It may be added that the courts are more liberal in permitting a deviation from the statute where an attack is made after the election is held than where the attack is made prior to the election."
Appellant relies upon the case of State ex rel. Ferguson v.Superior Court,
Appellant also cites the case of Dunn v. Centralia,
". . . ten days' notice of such election shall be given in the newspaper doing the city or town printing, by publication in each issue of said paper during said time. . . ." Rem. Rev. Stat., § 9489 [P.C. § 1215].
The notice, then, was printed only once, instead of ten times, as required by law. This was a more serious violation of law than is presented by the record in the case at bar. The court called attention to the fact that there was apparently no law providing for the posting of notices of the election, the only official notice to be given being the publication above referred to, and that consequently any notices which were posted were not any portion of the official notice of election required by law. It should also be noted that, in the Centralia case, the election was not held at the same time as any general state election, which elections are, of course, matter of general knowledge *121 and great interest, very largely participated in by the voters.
The vote cast on the matter of the proposed organization of the district demonstrates an adequate expression of the will of the electors.
We are of the opinion that this case is controlled by the case of Vickers v. Schultz, supra, and the cases therein cited.
The trial court drew correct conclusions of law from facts properly found.
The judgment appealed from is affirmed.
BLAKE, C.J., STEINERT, GERAGHTY, and JEFFERS, JJ., concur.