Green Mountain School Dist. No. 103 v. Durkee
| Citation | 351 P.2d 525,56 Wn.2d 154 |
| Decision Date | 02 May 1960 |
| Docket Number | No. 35327,35327 |
| Court | United States State Supreme Court of Washington |
| Parties | GREEN MOUNTAIN SCHOOL DISTRICT NO. 103; William Stein and William D. Lynch, Directors, Appellants, v. R. S. DURKEE, as County Superintendent of Schools for Clark County; Clark County Committee on School District Organization, Norval D. Hildman, Chairman; The State Board of Education, Lloyd J. Andrews, as President and Superintendent of Public Instruction, Respondents. GREEN MOUNTAIN SCHOOL DISTRICT NO. 103; H. Dorn Brown, as Chairman of the Board; William Stein, Member, and Jack Tivey, Member and Clerk; and Willis Jean Dennis, Appellants, v. R. S. DURKEE, as County Superintendent of Schools for Clark County; Clark County Committee on School District Organization, Waiter E. Pollock, as Chairman; Norval D. Hildman, Ira D. Eagle, Roger R. Lawhead, Peter Nichols, George Storey, Robert Bryan, Franklin Mattson, Robert Bolger, Members; State Board of Education, Lloyd J. Andrews, as President; John N. Rupp, James F. Hodges, Robert R. Waltz, Mrs. Fred A. Radke, Bernard Newby, William M. Luebke, H. R. Praetorius, Paul Slusser, Frank S. Emert, T. G. Reames, Frank M. Lockerby, William P. Bowie, Owen Patterson and Albert A. Soderquist, Members, Respondents. |
Smith Troy, Don Cary Smith, Olympia, for appellants.
John J. O'Connell, Atty. Gen., Robert J. Doran, Asst. Atty. Gen., R. DeWitt Jones, Pros. Atty., Robert Harris, Deputy Pros. Atty., Clark County, Vancouver, for respondents.
Appellant, Green Mountain school district, appeals from a judgment affiring the order of the school superintendent of Clark county transferring a portion of its territory to the La Center school district.
The undisputed facts are: On December 3, 1958, the Clark county committee on school district organization gave notice of public hearing to the residents of the Green Mountain and La Center school districts, which meeting was held December 16, 1958. Subsequently the county committee proposed the transfer to the state board of education. After hearing by the state board, the proposal was approved on February 10, 1959, pursuant to which the Clark county superintendent of schools on February 13, 1959, ordered the transfer.
Appellant school district appealed the county superintendent's order to the superior court for Clark county, which order was affirmed by that court.
No assignments of error are made to the findings of fact. Appellant states in its brief that:
'The sole question of law to be decided is whether the Clark County Committee on School District organization was at the time it initiated the transfer of territory from Green Mountain District to LaCenter District in December 1958, a properly organized and constituted committee so that its proposal of transfer was and is a lawful proposal.'
RCW 28.57.030 provides in part:
'* * * as nearly as possible, an equal number of members shall be elected from among the residents of each class of school district (first, second, or third class) in the county. * * *'
On December 16, 1958, the Clark county committee was composed of nine members, three having been elected from each class of school district. But prior to December 16, 1958, the date of the proposed transfer, there was a change in the classification of the third-class districts from which three members had been elected. These districts were made second class, and, therefore, at the time of the proposal, there were no members on the county committee residing in a third-class district.
Appellant contends that the composition of the county committee violated RCW 28.57.030, and that, when the three members originally elected from third-class districts ceased to be residents of third-class districts by change in classification, their positions became vacant under RCW 42.12.010. 1 Therefore, appellant claims, the acts of the county committee were unlawful and void.
Respondents argue, however, that this administrative appeal under the school code, RCW 28.88, is not the proper procedure by which to attack the composition of the county committee. The contention is that this appeal seeks review of an order entered by the superintendent of schools, and any question herein as to the qualification of members of the county committee is collateral. Organization of the committee may not be thus attacked in an appeal on the merits of an order respecting which the committee made a proposal. The only proper means of questioning the constitution and qualifications of the membership of a public body is a direct attack by quo warranto.
We agree. The correct and exclusive mode of attacking the composition of the county committee is by quo warranto.
Assuming, arguendo, that the three challenged members of the committee were not then legally committeemen, they were, nevertheless, de facto members.
In State v. Britton, 27 Wash.2d 336, 178 P.2d 341, 346, this court quoted with approval from Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, 3 Am.St.Rep. 176, as follows:
* * *' * * *" (Italics ours.)
The challenged members of the county committee were duly elected, and thus clearly acted under color of right. They were, therefore, de facto officers. Appellant admits in its brief:
'* * * it follows that these members were mere de facto officers holding over.'
In State v. Britton, supra, the appellant, who had been convicted of a crime, sought to have the judgment set aside on the ground that the trial judge had not been lawfully appointed. This court affirmed the judgment, holding that the trial judge was at least a de facto officer, and that:
"An officer de facto must be submitted to as such until displaced by a regular direct proceeding for that purpose; Ex parte Moore, 62 Ala. 471; 4 East 327; Buncombe Turnpike Co. v. McCarson, 18 N.C. 306; he is a legal officer until ousted; Board of Auditors of Wayne County v. Benoit, 20 Mich. 176, 4 Am.Rep. 382.' 1 Bouvier's Law Dictionary, Rawle's 3d Revision 761.'
In State v. London, 194 Wash. 458, 78 P.2d 548, 553, 115 A.L.R. 1255, this court approved the statement made in 2 Cooley's Constitutional Limitations (8th ed.), 1355, as follows:
"No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because cause of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure. * * * In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.' * * *'
The proper and exclusive method of determining the right to public office is under the quo warranto statute, the pertinent provisions of which are set out in the margin. 2
The statute corresponds to common-law quo warranto proceedings (see State ex rel. Carter v. Superior Court, 18 Wash.2d 130, 138 P.2d 843), and is a direct procedure to test the title to a public office or the right of an officer de facto to exercise the rights and functions of such office.
In Smith v. Baughman, 194 Wash. 78, 76 P.2d 1022, 1023, our decisions were summarized:
Other cases are collected in the margin. 3
Moreover, quo warranto is not limited to conflicting claims to a public office. Clarken v. Blomstrom, 174 Wash. 612, 26 P.2d 87, 89, held:
'While most, or many, of the cases arising in quo warranto present a contest between two claimants for the same office, it is not indispensable that there be a contest between two persons. In State ex rel. Forstell v. Otis, supra [131 Wash. 455, 230 Pac. 414], we said:
"The petition here shows that the title to an office is involved, and that is a question which may arise just as well where there is only one person asserting title as where there are two."
But appellant claims that it has no remedy under the statute regulating quo warranto as to county officers. It is...
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