Carpenter v. Okanogan County

• Decision Date: 20 May 1931
• Docket Number: 22982.
• Citation: 163 Wash. 18,299 P. 400
• Parties: CARPENTER v. OKANOGAN COUNTY.
• Court: Washington Supreme Court

299 P. 400

163 Wash. 18

CARPENTER v. OKANOGAN COUNTY.

No. 22982.

Supreme Court of Washington

May 20, 1931

Department 2.

Appeal from Superior Court, Okanogan County; Wm. C. Brown, Judge.

Suit by W. W. Carpenter against Okanogan County. Decree for plaintiff, and defendant appeals, and plaintiff cross-appeals.

Decree in accordance with opinion.

H. A Davis, of Okanogan, and Marion Edwards, of Pateros, for appellant.

Smith &amp Schaaf, of Okanogan, for respondent.

BEELER, J.

This controversy involves the validity of a sale of public lands by the county commissioners of Okanogan county to the plaintiff. The sale as made is void for two reasons: (1) The county commissioners never acquired jurisdiction to make the sale; and (2) the notice of sale did not conform to the statute. The facts and circumstances of the purported sale may be briefly summarized:

Prior to and on September 4, 1929, Okanogan county owned approximately 27.18 acres of land which it used as a 'poor farm,' and on that day the board of county commissioners by resolution undertook to 'sell all that part of the county poor farm that is in orchard.' This orchard contains but 8.57 acres. On the following day September 5, the board of county commissioners caused a notice to be published in three newspapers in Okanogan county, reading in part as follows:

'Notice of Intention to Sell Part of County Poor Farm.

'It is the intention of the board of county commissioners of Okanogan County, Washington, to sell about fifteen acres, including the orchard and barn of the county poor farm, consisting of 27.18 acres in the northerly part of the northeast quarter of the northeast quarter of section 36, Township 34 North, Range 25 E. W. M. (a particular description of which appears in Volume 45 of Deeds, page 89, of the records of conveyances in the office of the county auditor); the portion to be sold to be taken from the southwesterly part of the farm.'

--and fixed October 7, 1929, as the date on which the board of county commissioners would meet to hear and determine the advisability of making the sale. On October 7, there being no objections to the sale by any taxpayer of the county, the commissioners fixed November 30, 1929, as the date of sale, and the county auditor, at the direction of the commissioners, published a notice of sale in three county newspapers: In the Tonasket Times, on October 25, November 1, 8, and 15, 1929; in the Omak Chronicle on October 25, November 1, 8, 15, and 22, 1929; and in the Okanogan Independent on October 26, 29, November 5, 9, and 16, 1929. The real estate as described in the notice of sale did not embrace fifteen acres, as in the notice of intention to sell, but merely 8.57 acres, and was described only by metes and bounds, as follows:

'Sale of County Property.

'Under and by virtue of an order of the Board of County Commissioners of Okanogan County, Washington, on the 7th day of October, 1929, directing the sale of the following described real estate, to-wit:

'Beginning at a point S. 62~00' E. and 492.5 ft. distant from N.W. corner of the NE 1/4 NE 1/4 Sec. 36, Twp. 34 N. Range 25 E. W. M.

'Call No. 1 Thence S. 63~00' E. 432 ft.

'Call No. 2 Thence S. 25~00' W. 287.5

'Call No. 3 Thence S. 61~15' E. 151 ft.

'Call No. 4 Thence S. 28~00' E. 329 ft.

'Call No. 5 Thence S. 19~00' W. 175 ft.

'Call No. 6 Thence N. 62~15' W. 847 ft.

'Call No. 7 Thence N. 32~00' E. 418 ft.

'Call No. 8 Thence N. 10~30' W. 250 ft. to place of beginning containing 8.57 acres, together with an old vested water right of 4 acre feet per acre.'

(Note.--The call numbers did not appear as a part of the notice of sale).

On November 30, 1929, plaintiff purchased the property, paid the full purchase price of $8,001 in cash, received a deed, and took possession thereof. Plaintiff contends he learned of the irregularities of the sale for the first time on July 30, 1930, and within a few days thereafter demanded the return of his money together with 6 per cent. interest thereon from the date of sale. Payment being refused, plaintiff brought this action to have declared void the sale and deed to him by Okanogan county, and to recover the purchase price of $8,001 and interest, together with the expenses of the care and maintenance of the orchard during the period of his possession. The case was tried to the court resulting in findings and conclusions favorable to the plaintiff, and a decree declaring void the sale and deed and awarding plaintiff judgment for $8,001, with 6 per cent. interest from August 2, 1930, the date on which the claim was made by him to the board of county commissioners, but denying plaintiff judgment for labor and materials furnished in caring for the orchard and land. Okanogan county is appealing from so much of the judgment as declares the sale and deed void, and awards plaintiff $8,001, and interest. Plaintiff is cross-appealing from so much of the judgment as allows him interest from August 2, 1930, and denies him recovery for labor and materials furnished in caring for the orchard and lands.

The first inquiry, then, is whether the board of county commissioners acquired jurisdiction to conduct the sale. The county commissioners undertook to sell approximately six and a half acres less than had been advertised in the notice of intention of sale. This the board of county commissioners could not do. It is elementary that counties derive such powers as they possess, not from special charter but from general laws, and may exercise such functions of local government and perform such duties as are imposed upon them by the sovereign--and no others. They are incapable of acquiring or holding real property except for public purposes, and such property, once acquired and devoted to a public use, cannot be alienated without legislative authority, either express or implied. The sale and the proceedings were had under sections 4007-4010, Rem. Comp. Stat. Section 4007 authorizes and empowers the board of county commissioners to sell and convey county property 'under the limitations and restrictions and in the manner hereinafter provided.' Section 4008 provides for the giving of notice of intention to sell public property and provides that 'such notice so published shall particularly designate and describe the property or portion thereof which it is proposed to sell, and shall contain full notice that the board of county commissioners will meet on a certain day and hour of such day at their usual place of meeting to hear and determine the advisability of making such sale.' The purpose of this notice is to enable any taxpayer of the county to be present and be heard either in person or by counsel for or against such proposed sale. These being statutory jurisdictional steps, they must be strictly complied with. Here the county owned a poor farm which embraced 27.18 acres. It appears that the fifteen acres referred to in the notice of intention to sell included the orchard, a fraction of an acre immediately adjacent to and east of the orchard on which stood an old barn, and some six acres consisting of a precipitous hillside, contiguous to and extending westerly from the orchard, but wholly unsuited for cultivation. Now the taxpayers of Okanogan county might be satisfied to consent to the sale of the orchard including the barn and the six acres of unproductive land but might be opposed to a sale if limited to the orchard tract. Since the statute requires that the property shall be 'particularly designated and described,' we hold that the notice of intention to sell was not in strict compliance with the statute, and hence the board of county commissioners acquired no jurisdiction to proceed with the sale.

In State ex rel. Great Northern Railway Co. v. Herschberger, 117 Wash. 275, 201 P. 2, 3, certain electors of Okanogan county filed a petition with the board of county commissioners seeking to incorporate a municipal corporation or town under the name of Molson. The petition contained an accurate description of the boundaries of the proposed town, but the notice published did not follow the description of the boundaries as contained in the petition. Passing on the question whether the county commissioners had acquired jurisdiction, we said: 'The single question presented here is whether the failure of the published notice to correctly describe the boundaries of the proposed corporation is fatal to the proceedings. It is our conclusion that it is so. The publication of the petition together with notice of the time of the hearing therein is the jurisdictional process by which the persons affected by the incorporation are brought into the proceedings. The requirement that such publication be made is the positive mandate of the statute. The object of the requirement is to give persons affected by the proposed corporation an opportunity to appear and oppose or favor the incorporation as they may deem their interests require, and manifestly this right is denied them unless they be given notice of the true boundaries of the proposed corporation. No question with respect to the forming of a municipal corporation is more important to the property holder than the question of its boundaries. It is conceivable that a property holder may have no objection to the incorporation if it included only the territory described in the notice given him, while he would seriously oppose it if it included less or different territory. To say, therefore, that a notice need not describe the territory is not only to deny the mandate of the statute, but it is to open the doors to opportunity for fraud.'

The sale is void for another reason. The notice of sale did not conform to the statute. We have uniformly held that statutes regulating the sale of public property,...