71 Wash. 503 | Wash. | 1913
Lead Opinion
On December 13, 1912, the relator procured, upon ex parte application, a writ of certiorari, to review the proceedings of the superior court of King county in an action to contest an election. On the return day fixed by the writ, the respondent, Byron Phelps, moved to quash the writ on the ground of lack of jurisdiction. Briefly, the ruling sought to be reviewed is the action of the trial'court in refusing to order a recount of the ballots until some proof aliunde the ballot boxes should be made tending to impeach the regularity or integrity of the official count and canvass.
The decisions of this court cited by the relator are not pertinent to the case here. State ex rel. Meredith v. Tallman, 24 Wash. 426, 64 Pac. 759; State ex rel. Royse v. Superior Court, 46 Wash. 616, 91 Pac. 4, 123 Am. St. 948, 12 L. R. A. (N. S.) 1010. In each of these cases the remedy by appeal was held inadequate because, and only because, the term of office would expire before the hearing on appeal could be had. No such condition is found in the case before us. The other case cited, State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 Pac. 385, rests upon the same ground, namely, that the remedy by appeal was inadequate to preserve the fruits of the litigation if won.
The proceedings in contest here presented are not in quo warranto, either as at common law or as given by our analogous statutory action. The right to a contest such as here sought to be reviewed rests solely upon, and is governed by, the provisions of the particular statute providing therefor. Rém. & Bal. Code, §§ 4941 to 4957, inclusive. The section giving the remedy by appeal has never been repealed, either expressly or by implication. To entertain this writ, in the absence of anything distinguishing the proceedings from other election contests brought under the statute, would be a gratuitous assumption of the legislative function.
The motion to quash is granted, and the application is denied.
Parker, Crow, Main, Morris, Chadwick, and Gose, JJ., concur.
Dissenting Opinion
(dissenting) — I am unable to concur, either in the opinion announced by Judge Ellis, or in the judgment which the majority of the court think proper to render in this case. The statute thought to require judgments entered in election contests to be brought to this court by appeal only was first enacted by the territorial legislature in 1866. It was reenacted in the form of a code by the territorial legislature of 1881, and published in the code of that year known as the Code of 1881. Since that time it has been carried forward by the codifiers of the laws of Washington into the several codes, without change of verbiage except to substitute the term “Superior Court” for the term “District Court,” wherever such term appeared in the act. The statutes relating to appeals were changed and modified a number of times by the territorial legislature between the years 1866 and the change from the territorial form of government into statehood; and twice since that time. The changes made in the statutes during this period in this respect were radical. Indeed, there is scarcely any resemblance between the present statute relating to appeals and the statutes relating thereto of 1866 or 1881. It has seemed to me, therefore, that, if the term “appeal” as used in the statute of 1866 or Code of 1881, ever had any technical significance, it has lost it by the subsequent repeal of the statutes to which it did relate and the enactments of new and different statutes called statutes of appeal. In other words, inasmuch as the right and method of contesting an election was statutory, rendering it necessary to provide for a review in the higher court from the judgment of the court of original jurisdiction, if such review was to be had, the legislature used the term “appeal” in the sense of “review,” and not in the sense of making a distinction between two forms or methods of review that might thereafter be provided. This being the true meaning of the statute, the court should give it effect by allowing reviews in this court for election contests by a writ of review whenever the remedy by appeal is not plain, speedy or adequate. That
The case should therefore be determined upon its merits.
Mount, C. J., concurs with Fullerton, J.