Morris v. Favor

• Decision Date: 15 April 1925
• Docket Number: 18965.
• Citation: 134 Wash. 75,234 P. 1040
• Court: Washington Supreme Court
• Parties: MORRIS v. FAVOR et al., Board of County Com'rs.

234 P. 1040

134 Wash. 75

MORRIS v. FAVOR et al., Board of County Com'rs.

No. 18965.

Supreme Court of Washington

April 15, 1925

Department 2.

Appeal from Superior Court, Asotin County: McCroskey, Judge.

Suit by Lee Morris against Roy J. Favor and others, as the Board of County Commissioners of Asotin County. From a judgment on demurrer dismissing action, plaintiff appeals. Affirmed.

E. J Doyle, of Clarkston, for appellant.

J. C Applewhite, of Asotin, for respondents.

HOLCOMB, J.

No better introduction to the nature of this case and the questions of fact and law involved can be made than by setting out the very able opinion of the trial judge filed in the case, which follows:

'By his complaint plaintiff seeks a writ of mandate commanding the defendants as the board of commissioners of Asotin county to redistrict the commissioner districts of said county. He alleges in substance that it is divided into three commissioner districts; that over one-half of the population of the county now resides in the third district and has for many years resided therein; that the first and second districts do not together contain more than one-third of the total population of the county; that the inhabitants of the county have requested the board of county commissioners to redistrict the districts so as to secure a more equitable representation on the board of commissioners according to the population, but that the board has arbitrarily refused to comply therewith; that at the last general election only 475 votes were cast in the first district, 218 in the second, and 1,423 in the third, and that no change has been made in the districts since the organization of the county; that since the organization of the county the third district, which includes the city of Clarkston and the surrounding tracts, have become thickly settled, more than doubling the original population, and more than doubling the assessed valuation for the purpose of taxation.

'The defendants interpose a demurrer to the complaint upon the grounds that the court has no jurisdiction of the persons of the defendants or of the subject-matter of the action, and that the complaint does not state facts sufficient to constitute a cause of action.

'By the Constitution a county is made the unit of government (article 11,§ 4), and the power is vested in the Legislature to provide for county government. The Constitution only casually mentions the governing body of a county.

'Since the Constitution has left the matter of county government entirely to the will of the Legislature, I have no doubt that body could lawfully, should it see fit, repeal all existing laws on the subject and by general enactment adopt some other method, possibly more inimical to 'a representative form of government' or 'free and equal suffrage' than appears by the complaint to exist in Asotin county.

'Plaintiff relies upon his construction of the statute (section 4037, Remington's Codes) for his right to the writ. He urges that this section by words and by necessary implication requires that each commissioner district shall contain as nearly as possible one-third of the population of the county, and that it is the duty of the board thereunder to so divide the county that this result will obtain.

'He argues that, while it is in the discretion of the board to redistrict the county, it is its manifest duty to do so, and that under the facts here an abuse of discretion is shown by its refusal.

'As I see it, the only question involved is this: Does the law impose upon the board a duty resting on a discretion to be exercised or which may be exercised in the performance of an act that in contemplation of law should be performed? In other words, does the law manifest a legislative intent that the three commissioner districts in each county of the state shall contain approximately the same population, or is the right to redistrict merely permissive?

'Plaintiff in his brief only cites section 4037 (Laws of 1893, p. 63) and no other state or territorial law. The territorial session laws are not available here, but in any event it seems unnecessary to go further than the beginning of statehood, and this is especially true in this case where the county of Asotin is involved, which was organized in territorial days and still retains its original commissioner districts.

'The first law on the subject of commissioner districts enacted after statehood was that of March 26, 1890 (Laws of 1890, p. 317). This law recognized or approved existing commissioner districts, and its evident purpose was to require division to be made in new counties not heretofore districted, restrict boards in districting or redistricting counties in connection with voting precincts and to give them an opportunity if desired to redistrict counties theretofore districted. Such districts so created must comprise not less than two voting precincts or townships of compact and contiguous territory and embrace as nearly as possible one-third of the population of the county.

'By this act all territorial legislation on the subject was specifically repealed, which fact is worthy of notice.

'The act of 1893 (Laws of 1893, p. 63, § 4037, supra) is the next legislation referring to division of commissioner districts, and makes no change as regards population. It also recognized and approved the existing districts except such as contained one or more

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