Hindman v. Boyd

Decision Date26 February 1906
Citation84 P. 609,42 Wash. 17
PartiesHINDMAN v. BOYD, Mayor, et al.
CourtWashington Supreme Court

Appeal from Superior Court, Spokane County; W. T. Warren, Judge.

Mandamus by W. W. Hindman against L. F. Boyd, mayor of Spokane, and others. Judgment for relator. Defendants appeal. Remanded.

Danson & Williams, F. M. Dudley, C. R. Lund, H. M. Stephens, and Turner & Geraghty, for appellants.

James T. Burcham, Chas. A. Murray, Merritt &amp Merritt, Happy & Hindman, for respondent.

HADLEY, J.

This is a proceeding in mandamus. Application was made to the superior court of Spokane county for a writ of mandate directed to the mayor, city councilmen, and city clerk of the city of Spokane, requiring them to submit to a vote of the people of said city a proposed amendment to the city charter governing the manner of granting certain franchises in the city. The affidavit in support of the application for the writ alleges that more than 1700 of the qualified voters of the city, a number equal to more than 15 per cent. of the total number of votes cast at the last preceding municipal election, have petitioned the city council to submit said proposed charter amendment at the next regular municipal election. It is averred that the council refused to take any action toward the submission of the proposed amendment, and that the relator believes the council does not intend to comply with the petitions and submit the amendment. Application for the writ was made March 22, 1905 and on the same day the court made on order directing that an alternative writ should issue, and that the same should be made returnable on the 25th day of March, 1905. An alternative writ was issued accordingly. The defendants to the writ interposed some preliminary motions and demurrers attacking the writ, which were overruled, and thereafter they made return by way of answer. The answer denies that the petitions were signed by qualified voters equal in number to 15 per cent. of the total votes cast at the last preceding municipal election, and denies that the council refused to take any action toward the submission of the proposed amendment, or that it has done nothing in respect thereto. It is also affirmatively alleged that the various petitions which have been filed with the city clerk were obtained by fraud in obtaining the signatures thereto of a large number of individuals who were not, and are not, qualified voters of the city; that the verifications made to the petitions were made by persons who did not see the signatures made, who did not know the individuals who signed them, who were unacquainted with the signatures of the signers, and who had no knowledge of the individuals or of the signing of the petitions; that the petitions were falsely verified for the fraudulent purpose of misleading the members of the council and inducing them to submit the proposed amendment in violation of law, and to thereby incur an expenditure and debt on the part of the city, unauthorized by law. It is further alleged that the demand for the submission of the amendment was made upon the council on March 21, 1905 and that the petitions were at once referred to the committee of the whole for the purpose of investigating them and ascertaining whether they were signed by the qualified voters of the city equal in number to 15 per cent. of the persons who voted at the last municipal election; that within the short time that has since elapsed the investigation has disclosed the above stated facts with reference to the procurement of signatures and the verifications of the petitions; that after striking or rejecting the names of those who were not qualified voters, the number left does not equal 15 per cent. of the persons who voted at the last municipal election. The answer contains other affirmative matter to which we need not refer at this time. When the cause came on for hearing, the relator interposed a general demurrer to the whole answer, and the same was by the court sustained, to which ruling exception was taken. Relator then called as a witness the city clerk of the city who identified the several petitions for the submission of the proposed amendment as being records and files in his office, and they were thereupon admitted in evidence. The relator then rested and inasmuch as the defendants to the writ were left without pleadings by reason of the ruling of the court on the demurrer to their answer, they offered no testimony. A judgment directing a peremptory writ of mandate was then entered, and this appeal is from that judgment.

Respondent has moved to dismiss the appeal, on the ground, as he alleges, that the controversy has ceased, for the reason that the appellants have by their acts waived their right to appeal. In support of this contention, it is brought to our attention that, after the judgment was rendered in this cause below, the appellants did submit the proposed charter amendment to a vote of the people. It further appears, however, that their acts in that regard were because of the mandate of the court below, which peremptorily commanded them to submit the amendment. They had previously appealed to this court from the judgment below, and had applied to the trial court for an order fixing the amount of the supersedeas bond pending the appeal, which was denied. Application was then promptly made to this court for a writ of mandate directed to the lower court, compelling it to fix the amount of a supersedeas bond. That application was also denied. Under such circumstances appellants obeyed the mandate of the court below, and it cannot be said that their action was voluntary. They have not waived their contention by any voluntary act of their own, but have acted solely in obedience to judicial command, and under such circumstances their right to have the action of the court reviewed on appeal should not be denied. Dodds v. Gregson, 35 Wash. 402, 77 P. 791. Other grounds mentioned in the motion to dismiss the appeal we think are also insufficient, and the motion is denied.

The first point urged by appellants is that the judge who tried this cause was not competent to sit as a court under the circumstances. The Hon. W. T. Warren, a regularly qualified judge of the superior court for the counties of Lincoln and Adams, was at the time acting as a judge in Spokane county, at the request of the Hon. Henry L. Kennan, one of the judges for Spokane county. It is argued that, under the statutes of this state, Spokane county is entitled to have, and does have, three superior judges; that on the day this cause was heard, each of said judges held a session of said court in Spokane county, and that inasmuch as Judge Warren was not assigned by the Governor of the state to act in Spokane county at the time, he therefore acted without authority. This contention is based upon section 5, art. 4, of the state Constitution, the pertinent portion of which is as follows: 'In any county where there shall be more than one superior judge, there may be as many sessions of the superior court at the same time as there are judges thereof, and whenever the Governor shall direct a superior judge to hold court in any county other than that for which he has been elected, there may be as many sessions of the superior court in said county at the same time as there are judges therein or assigned to duty therein by the Governor.'

It is contended that, under the above provision, there could have been but three sessions of the superior court in Spokane county on the day in question, unless additional judges had been assigned thereto by the Governor. Section 7, art. 4, of the Constitution, however, provides as follows: 'The judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof, and upon the request of the Governor it shall be his duty to do so.' Under the last-quoted provision it is clear that a visiting judge may act at the request of a resident judge and without the request of the Governor, and that upon the request of the latter it becomes his duty to do so. The two provisions must be construed together so as to give harmonious effect if possible. It is clear that the Constitution designates two methods for the assignment of visiting judges. If the above portion of section 7 should be read as a part of section 5, and it may properly be so read, then we think the intention appears that there may be as many sessions in a county at one time as there are local and assigned judges. We therefore believe that the provision of section 7 should be held to be a mere enlargement of that in section 5, to the effect that there may be as many sessions as there are resident judges and additional assigned judges, whether assigned by the Governor or by request of a local judge. We therefore hold that the trial judge was competent to act.

The important question presented by the appeal is, did the court err in sustaining the demurrer to the answer? Appellants present several reasons which they urge against the ruling on the demurrer. The answer expressly challenges the constitutionality of the act of 1903, p. 393, c. 186, of the session laws of that year. It was by authority of that act that the action of the council was invoked for the submission of the proposed amendment. By reference to the statute it will be seen that, when qualified voters of the city, equal in number to 15 per cent. of the total number of votes cast at the last municipal election, shall petition the city council for the submission of a proposed charter amendment, it becomes the duty of the council to submit the question at the next regular municipal election, occurring 30 days or more after the petition is filed. The answer avers that the publication of the necessary...

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