Clarken v. Blomstrom, 24674.

• Decision Date: 19 October 1933
• Docket Number: 24674.
• Citation: 26 P.2d 87,174 Wash. 612
• Parties: CLARKEN v. BLOMSTROM et al.
• Court: Washington Supreme Court

26 P.2d 87

174 Wash. 612

CLARKEN v. BLOMSTROM et al.

No. 24674.

Supreme Court of Washington

October 19, 1933

Department 1.

Appeal from Superior Court, Lewis County; C. A. Studebaker, Judge.

Mandamus by J. J. Clarken against John Blomstrom and others. From an adverse judgment, named defendant and another appeal.

Reversed with instructions.

W. E Bishop, of Chehalis, for appellants.

STEINERT Justice.

Plaintiff brought this action in mandamus to compel the declaration of a vacancy in the office of school director and the consequent appointment of some legally qualified person to fill such vacancy. An alternative writ of mandamus directed to defendants, was issued by the court. Defendants appeared by motion to quash the writ and by demurrer to the petition. The motion was denied, and the demurrer was overruled. Defendants Blomstrom and Uden filed an answer which admitted, in large part, the allegations of the petition, denying only such portions thereof as were 'inconsistent with the admissions' thereinabove set forth; the answer also contained an affirmative defense. A demurrer to the affirmative defense was sustained. The defendants having elected to stand upon their respective pleadings, a judgments granting a peremptory writ of mandamus was entered by the court, but without any evidence being taken at the hearing. Blomstrom and Uden have appealed.

The facts, in so far as they are uncontradicted or stand admitted by the pleadings, are as follows: Respondent Clarken and appellant Uden were rival candidates for the office of school director. Clarken was, at the time, the incumbent of the office. At an election held March 4, 1933, each candidate received one hundred and fourteen votes, and the election was accordingly declared a tie. Thereupon appellant Blomstrom clerk of the election board, called a meeting for the purpose of deciding by lot which of the two candidates should be declared to be the director. Written notice of the time, place, and purpose of the meeting was sent to, and received by, each of the two candidates. Uden attended the meeting, but Clarken refused to do so. At the time and place appointed, the clerk of the election board publicly, and in the presence of many person, prepared two ballots containing the words 'win' and 'lose,' respectively, which he placed, face downward, in a box. The clerk then called upon Uden to draw one of the ballots from the box. The ballot drawn by Uden contained the word 'win.' The clerk thereupon declared Uden to be the duly elected director and issued to him a certificate of election which was filed, in accordance with law, with appellant Hurd, the superintendent of public schools of Lewis county. Uden then assumed the duties of the office to which he had been declared elected. Respondent thereupon began this action. In his petition for a writ of mandamus respondent claimed that, as the hold-over director of the school district, he continued to be and was such until his successor should be duly elected and qualified. In the judgment, however, there is a finding to the effect that respondent is not claiming title to the office and is not claiming that he is entitled to be appointed as the director of such school district, but is maintaining the action for the benefit of all persons interested in the district, for the purpose of having the office declared vacant and thereafter filled by appointment. As already stated, no evidence was taken at the trial.

The statute under which the clerk of the election board proceeded in deciding who should be declared elected is Rem. Rev. Stat. § 5027, which, so far as is material here, reads as follows: 'If two persons have an equal and highest number of votes for one and the same office, they shall, within ten days after the election, appear Before the clerk of election of said district and publicly decide by lot which of the persons so having an equal number of votes shall be declared elected, and the clerk of election shall make out and deliver to the person thus declared elected a certificate of his election, and notify the county superintendent of the county as Before provided. If the persons above named do not, within ten days after election, thus decide, the office shall be declared vacant by the clerk of election, and the county superintendent shall, when notified of the vacancy, fill the same by appointment.'

The gravamen of the petition for writ of mandamus is that the clerk did not, and could not, proceed under the foregoing statute, because respondent had not given his consent to such proceeding, but had declined to attend the meeting held for the purpose of deciding the tie. In short the contention is that, in the absence of ...