71 Wash. 484 | Wash. | 1913
Relator sought a writ of mandate in the lower court, requiring the county auditor to issue to him a certificate of election to the office of judge of the superior court of King county, for a short term, beginning November 5, 191£, and ending January 13, 1913. The writ was denied below, and relator now comes to this court and sues out a writ of certiorari to review the action of the lower court.
There is no dispute as to the facts. At the last general election in King county, nine judges of the superior court
A number of interesting legal questions are submitted to us by the briefs and arguments; but, as we view it, one is so determinative of the relator’s rights that it, only, need be discussed, and that is the lack of notice. It will be conceded that, while the election of November 5 was, so far as it related to state, county and precinct officers, a general election, called and held pursuant to the required notice, any election, although held at the same time and place to fill any vacancy in any office, would be a special election under § 4782, Rem. & Bal. Code, providing that “Special elections are such as are held to supply vacancies in any office, whether the same be filled by the vote of the qualified electors of the state, or any district, county or township, and may be held at such times as may be designated by the proper officer.” The last clause would seem to indicate that, whenever a special election is to be held, the time for holding such an election shall be designated by the proper official. This is borne out by § 4784, providing that at least fifteen days’ notice shall be given of any special election, by posting notices.
Relator seeks to evade the lack of notice in this instance by a contention that notice is directory merely, and any failure to give it would not render an election void, and cites Seymour v. Tacoma, 6 Wash. 427, 33 Pac. 1059, and Hesseltine v. Wilbur, 29 Wash. 407, 69 Pac. 1094. In both of these cases notice was given. In the first case the notice was less than the required time, while in the latter case it was published thirty days when the statute required a publication of only ten days; and in both cases it was held “that the formalities of giving notice, although prescribed by statute, are directory merely.” It will be noted in examining those cases that in neither of them was any suggestion made in the complaint that the electors did not have sufficient notice of the
“The rule established by an almost unbroken current of authority is that the particular form and manner pointed out by the statute for giving notice is not essential, and where the great body of the electors have actual notice of the time and place of holding the election, and of the questions submitted, this is sufficient. The vital and essential question in*488 all cases is whether the want of the statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise to change the result of the election.”
The same rule is announced in Murphy v. Spokane, 64 Wash. 681, 117 Pac. 476, where it is said:
“The purpose of an election, whether for men or for measures such as the one before us, is to give effect to the voice of the people; and when the people have spoken, their verdict should not be disturbed by the courts, nor the election in which they have voiced it held void unless it is clearly so.”
Reference is then made to McCrary on Elections, § 225, for the proper test in determining whether the omission of any particular requirement not made mandatory by the express language of the election statute shall render the election void, and this test is said to be that the requirements of the statute are to be held mandatory if they do, and directory if they do not affect the actual merits of the election. These authorities are almost conclusive against the validity of this election, without notice of any character. It would be ridiculous to say that, under the circumstances here shown, the voice of the people had spoken and it was the duty of the court to give effect to that voice, or that the omission of notice did not affect the actual merits of the law’s requirement that the result shall show that the election gave to each elector an opportunity to cast an intelligent vote. We could hardly assume that, in a county where over thirty-two thous- and electors had expressed a choice as between eighteen different candidates for the office of superior judge, only thirteen of those electors were interested in expressing a choice for a judge of that court for the term for which relator claims to have been elected.
Relator cites no case where any court has departed from the reasoning we have given. The authorities relied upon by him, where failure of notice has been held not to invalidate an election, are cases where it is apparent from the facts that the
“Here it seems to have been generally understood by the electors of the county that a vacancy existed, and they sought to fill said vacancy, nearly all those voting at that election casting their ballots for one of the candidates named;”
or State v. Thayer, 31 Neb. 82, 47 N. W. 704, where, although no special election was called to elect a judge to fill an unexpired term created by the resignation of the incumbent, the several political parties made regular nominations of candidates for such office, and it was stipulated that the electors voted for such candidates for such office. Reliance is also had upon City of Lafayette v. State ex rel. Jenks, 69 Ind. 218, where it was held that, under an act authorizing cities to construct water works and providing for the establishment by the common council of a board of three trustees, and for the election of such trustees, the establishment of such a board was not a necessary prerequisite to the election of the three trustees, and that want of notice of the election did not nullify the election. The opinion proceeds upon the theory that the fact that the people were ignorant of the law and its provisions could not invalidate the election because it was ignorance of a matter of law rather than one of fact, and that the people were bound to take notice of the existence of the law, and of the election of trustees to be held under it. The court then proceeds to distinguish ignorance of law from ignorance of fact in such cases, and as illustrating ignorance of fact, Foster v. Scarff, 15 Ohio St. 532, is cited, a case where a probate judge had died in office, and the governor had made an appointment to fill the vacancy. Afterwards a general election was held, at which it was proper to elect a probate judge. Proper notice was given of this election, but the office of probate judge was not included in the notice. The great mass of voters were ignorant of the fact that any one was being voted for for probate judge, until about three
“But it has nowhere been decided that such notice is not essential to the validity of all special elections. ... It*491 is essential to the proper exercise of the elective franchise, that the voters should be informed of the offices in which vacancies have occurred, before each general election in order that they may select fit and proper persons to perform the duties of such offices.”
The court then evidences the necessity for so holding by referring to the fact that more than four thousand votes were cast at the election, but only twelve hundred were cast for the office in question. If such reasoning impelled that court to so hold, what should be said of a judicial election where more than thirty-two thousand votes were cast out of which the claimant received thirteen? Another California case is People ex rel. Leverson v. Thompson, 67 Cal. 627, 9 Pac. 833, where it is said:
“Notice to the electors lies at the foundation of any popular system of government. It has sometimes been held that the existence of a law fixing the time of an election, and the offices to be filled, is of itself notice. It may be conceded that when a term of office is to expire at a certain date after a general election, no other election to intervene, the electors take notice the office is to be filled at such general election. Some decisions have gone so far. But it is well settled that when a vacancy has occurred by reason of death or resignation, the voters are not bound to take notice of such vacancy, and the casting of votes for a candidate or candidates to fill the vacancy does not constitute an election.”
State ex rel. Bolton v. Good, 41 N. J. L. 296, lays down the same rule. Cook v. Mock, 40 Kan. 472, 20 Pac. 259, holds notice essential in case of special elections to fill vacancies, and says:
“The electors may well be presumed to know when the regular terms of city offices begin and end. They usually do know it, in fact, but in respect to vacancies it is entirely different.”
People v. Kerwin, 10 Colo. App. 472, 51 Pac. 530, is a similar case, as is also Secord v. Foutch, 44 Mich. 89, 6 N. W. 110. In Wilson v. Brown, 22 Ky. Law 708, 58 S. W. 595, we have a case very similar to the one before us. An election as
“Under this rule, it seems clear to us the election of appellant must be held void on the facts stated in the answer. The constitution requires the circuit judges to be elected by the people, and it contemplates that they shall have a fair opportunity to express their choice in the selection of this officer, in many respects the most important to them of all the officers for whom they vote. It would be a manifest perversion of the constitution to allow a man to secure this office on the vote of 94 persons out of a total of something like 12,000, by means of pasters stuck on the original ballots, when there had been no proclamation for the election, and the voters were in ignorance that the office was to be filled.”
Many more cases might be cited, but it seems to us so clear that this election claimed under such circumstances, cannot be upheld that we refrain from longer discussion. Relator’s candid assertion that he sought secrecy rather than publicity, and that his endeavor was to keep the knowledge of his candidacy away from the people rather than impart it to them, in order that he might have no contest, and that the votes of the few friends to whom he confided his scheme, might be sufficient to insure his elevation to such an important office, with the receipt of thirteen votes out of thirty-two thousand ballots cast, puts this case within the rule we have asserted upon stronger reasoning than any case we have examined. If an election could be upheld under such circumstances, then those laws which seek to make the matter of elections one of great general public moment, in order that the people may have the fullest opportunity to intelligently select those who shall rule over them, might as well be read out of the law. Relator cites State ex rel. Harvey v. Mason, 45 Wash. 234, 88 Pac. 126,
“If the election should be void because of the neglect of the city’s officers, it would result in those officers perpetuating themselves in office of their own volition and against the expressed will of the people.”
that they had no “judicial prerogative of determining that the election held by the people at the time fixed by law is void;” and that their duties were purely ministerial. That case is in perfect harmony with the views we now express and the cases we cite in support of our holding, for the reason that the election was held at the time fixed by law to elect officers, who under the law were then required to be elected. The electors, as is said in Cook v. Mock, People ex rel. Leverson v. Thompson, supra, and the other cited cases, were presumed to know when the regular term of their municipal officers expired.. That was, as is said in Lafayette v. State, supra, knowledge of a matter of law of which courts would presume the people had full knowledge. It was not, as that court also says an instance of a vacancy in office, which would be a question of fact concerning which knowledge would not be presumed. It also appears in that case that the people had
We feel that we have said all that is required to be said to sustain our ruling and the judgment is affirmed.
Mount, C. J., Crow, Parker, Gose, Fullerton, and Chadwick, JJ., concur.
Main and Ellis, JJ., took no part.