Dunn v. City of Centralia

• Decision Date: 24 August 1929
• Docket Number: 21981.
• Citation: 153 Wash. 495,280 P. 26
• Parties: DUNN v. CITY OF CENTRALIA et al. (KRESKY et al., Interveners.
• Court: Washington Supreme Court

280 P. 26

153 Wash. 495

DUNN v. CITY OF CENTRALIA et al. (KRESKY et al., Interveners.

No. 21981.

Supreme Court of Washington

August 24, 1929

Department 2.

Appeal from Superior Court, Lewis County; Geo. B. Simpson, Judge.

Action by Lloyd E. Dunn against the City of Centralia and others, in which A. S. Kresky and others filed a petition to intervene. From a judgment dismissing the action, plaintiff and interveners separately appeal. Reversed and rendered, and appeal of interveners dismissed.

Holcomb J., dissenting.

W. N Beal, of Centralia, and Cleland & Clifford, of Olympia, for appellants.

J. H Jahnke, of Centralia, and Preston, Thorgrimson & Turner, of Seattle, for respondents.

PARKER, J.

The plaintiff, Dunn, an elector and taxpayer of the defendant city, commenced this action in the superior court for Lewis county seeking injunctive relief restraining the city and its officers from issuing and selling special public utility bonds of the city to pay for the acquisition and construction of a large hydroelectric power plant as an addition to its present electric current distributing system, and restraining the city and its officers from acquiring such plant as proposed. A trial upon the merits in the superior court resulted in findings and judgment denying to the plaintiff the relief prayed for and dismissal of the action, from which he has appealed to this court. It is necessary that the bond issue which the city authorities purpose to make, and the acquisition of the proposed plant, shall be authorized by a vote of the electors of the city, in order to be lawfully consummated. Our problem is as to whether or not official notice of the special election, which, it is claimed authorized such bond issue and acquisition of the plant, was given, as to period of publication, substantially as required by law.

The controlling facts are not in dispute, and may be summarized as follows: The city has for a number of years past owned and operated an electric current distributing system by which it has distributed for its own use and for sale for private use within the city electric current, the city purchasing such current from private producers. The city does not have any electric current producing plant. The city commission, contemplating acquiring such a plant, and it being necessary to have authority therefor, by vote of the electors of the city at a special election, on January 22, 1929, passed an ordinance providing for the calling of such special election, to be held February 25, 1929, submitting to the voters of the city for adoption a proposed system and plan for a hydroelectric producing plant, the acquisition of necessary property rights incident thereto, the construction of such plant, and the issuance of $650,000 of special

Official statutory notice of the election in due form was published in the official daily newspaper of the city on January 25, 1929. This official notice was not published on any other day in the official newspaper of the city, nor was it published at any time in any other newspaper published or having any circulation in the city. No other official notice of the election was given. Touching other unofficial information which the voters of the city acquired of the pending election, prior to the date of its holding, the trial judge found, as the evidence warranted, as follows:

'On said 25th day of January, 1929, notice of said election was given by causing the same to be posted at the polling place in each election precinct within the city of Centralia; * * * thereafter news items calling the attention of the voters of the city of Centralia and its citizens to said pending election, and of the proposition to be submitted to the qualified electors of said city on the 25th day of February, 1929, was continuously published in said Centralia Daily Chronicle and in the Centralia Tribune, a weekly newspaper regularly published and printed within the city of Centralia; that each of said newspapers, during said time, had a wide circulation within the said city of Centralia, and were regularly distributed and delivered to all of the legally registered voters within the said city; that public mass meetings were held within the said city between the time of the posting of said election notice and said election where the voters were informed of the proposition to be submitted to them at said special election, and that said election and the proposition to be submitted thereafter was likewise called to the attention of the voters at various other and numerous public meetings and gatherings during said time, and that during said time circulars, pamphlets and posters were distributed in each of the election precincts of said city, and numerous persons solicited the independant voters in each of the election precincts of said city to vote for or against the proposition to be submitted at said special election. * * *'

Some other statements are made by the trial judge in his findings which are, in substance, but inferences which he draws from his finding of facts above quoted. The trial judge further found as follows: 'At the time and place of holding said election there were 3725 registered and qualified electors within said city; that 1460 qualified electors voted in favor of said proposition, and 838 against the same.'

The statutory notice requirement for a special election of this nature, in so far as the time of its giving is concerned, is found in our city and town public utilities statute (section 9489, Rem. Comp. Stat.), and reads as follows: '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.'

There has not been called to our attention, and we are not aware of any other prescribed statutory notice for such an election; so we proceed upon the assumption that the posting of the notices was no part of the official notice prescribed by the statute, and that therefore the posting of the notices was unofficial, the same as all other unofficial information acquired by the electors.

The city's defense and the trial court's decision manifestly were rested upon the theory that, notwithstanding the want of publication of the official notice of the election in the city official newspaper during the period and for the number of publications required by the statute above noticed, there was, by the single official publication, such substantial compliance with the statute as to render the election valid, when viewed in the light of the general unoficial publicity informing the voters of the coming election and its purpose. We may concede that the statutory requirement of giving official notice, even of a special election such as this, has often been held to be in a measure directory, in the sense that such requirement need only be substantially complied with when there is a large measure of general unofficial information concerning the coming election, reaching the public through newspapers, other printed circulated matter, posting of printed matter, discussion in public gatherings, etc. We think, however, it should not be held that the slight quantity of official notice given of this election, as compared with that prescribed by statute, becomes a substantial compliance with the statute. This court has liberally applied the substantial compliance doctrine in upholding the validity of special elections, but we think it has not in any sense, directly or inferentially, held that an official notice, such as this, though aided by unofficial information, as was this notice, is sufficient to constitute a substantial compliance with a statutory requirement such as this. This official notice was but a slight step short of no official notice. If the affirmative vote had, in number, been a majority of all the registered votes of the city, and thus all but conclusively shown that the result would have been the same, even with the official notice given strictly as prescribed by the statute, it is possible the single publication might be held to be in its effect, in the light of the unofficial publicity here shown, a substantial compliance with the statute. But we think it cannot be said in this case, with a sufficient degree of certainty, that there would have been a majority affirmative vote at the election had the official publication of notice of the election been given as prescribed by the statute. We now notice in chronological order such prior decisions of this court, touching the question of the sufficiency of official special election notices, as we regard of any substantial aid in our present inquiry.

In Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059, there was involved a special election notice given under a city ordinance provision which, as stated in the opinion 'directed the city clerk to publish the election notice in the city official newspaper for 'thirty days next preceding said election,' and to post the same 'for the like period' at all of the places designated as voting places.' The state statute, however, required only publication of the notice in the city official newspaper for a period of 30 days. The notice was published in the official newspaper of the city a full period of 30 days, but that did not include the day immediately preceding the election. The notices were posted only 26 days preceding the day of election, as prescribed only by the ordinance. It was held that there was a substantial compliance with the law in giving official notice of the election. There was considerable unofficial information given to the voters of the pending election. Plainly, we think that decision is not controlling in this case, particularly because the notice was in fact published for a period of 30...