Murphy v. City of Spokane

• Decision Date: 25 August 1911
• Parties: MURPHY v. CITY OF SPOKANE.
• Court: Washington Supreme Court

117 P. 476

64 Wash. 681

MURPHY v. CITY OF SPOKANE.

Supreme Court of Washington, En Banc.

August 25, 1911

Appeal from Superior Court, Spokane County; Wilson R. Gay, Judge.

Action by Joseph Murphy against the City of Spokane. From a judgment of dismissal on sustaining a demurrer to the complaint plaintiff appeals. Reversed in part and remanded.

Del Cary Smith and Ed. Farley, for appellant.

Alfred M. Craven and Alex M. Winston, for respondent.

MORRIS J.

Appellant brought this action to enjoin the city and its officers from issuing and disposing of certain bonds for park purposes, and to declare the bonds illegal because of alleged irregularities in the election at which the proposition to issue the bonds carried. A demurrer was sustained to the complaint, and appellant, refusing to plead further, appeals from the judgment of dismissal. We are therefore only called upon to review the complaint as to whether or no the demurrer was well taken.

The complaint alleges three causes of action, setting forth that on March 22, 1910, an ordinance was passed providing for submitting to the electors of the city at a special municipal election to be held May 3, 1910, a proposition to incur an indebtedness of $1,000,000 for the purpose of acquiring and improving parks, playgrounds, and boulevards, for issuing bonds to evidence such indebtedness, and to create a sinking fund. The election was so held, and the proposition submitted carried. The election is attacked in the first cause of action upon the grounds that at each of the various election precincts one or more of the judges and inspectors appointed by the city council failed and neglected to qualify or serve as such officials, that no other persons were selected in their place, and that in each of the precincts a less number of election officials than the law requires were present; that the judges of election in those precincts where the officials were less than required were prejudiced in favor of incurring the indebtedness; that the election officials were suggested to the common council by citizens who were interested in the success of the proposition, and who promised to pay, and did pay, the compensation of such election officials; that some of the election officials failed and neglected to take the required oath before entering upon their duties; that the submitted proposition would not have carried without the votes from those precincts where these irregularities occurred. The second cause of action, in so far as it contains new matter alleges: That the private citizens who suggested the officials nominated by the common council as election officers, and who paid their compensation, were interested in property in and near the city which it is believed they desire to sell to the city for park purposes; that the polling places in some of the precincts were not opened at the time required by law, nor kept open for the required time, and many voters were thus denied the privilege of voting against the bonds. The third cause of action sets forth that out of the proceeds of the sale of the bonds $875,000 is to be expended for park purposes and the like and $125,000 is to be placed in a sinking fund which is to be preserved inviolate for the period of 50 years for the purpose of redeeming and paying the bonds then to become due. This sinking fund proposition is then attacked upon the ground that there is no authority in the city to establish or create such a fund.

The questions suggested in the first two causes of action are similar and may be treated together, and we are called upon to determine whether such irregularities as are there alleged are fatal to an election, and because of them the election must be held illegal or void. That the complaint alleges irregularities must be admitted; but are they such as to defeat the election and render nugatory the will of the people as therein expressed? The purpose of an election, whether for men or for measures such as the one before us, is to give effect to the voice of the people; and, when the people have spoken, their verdict should not be disturbed by the courts, nor the election in which they have voiced it held void, unless it is clearly so. Every election should be carried on under certain rules and regulations adopted by the lawmaking power to prevent disorder, and to afford an opportunity for the expression of the popular will and an ascertainment of the result with certainty. Such rules however, are generally held to be directory merely, and not so mandatory or jurisdictional in their character as to defeat an election in which they are not wholly observed; and the rule for determining the character of the regulation is given in McCrary on Elections, § 225, as: 'If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative and all considerations touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done within a particular time, or in a particular manner and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.' This rule is well established by the authorities, and has received recognition in this court in Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059, where it was sought to invalidate a bond election upon the ground that the notice of election was not such as was required by the ordinance calling the election. The failure was held not to be fatal, and it was said: 'Certain rules as to notice of elections have become well settled; and none of them are better settled than that the formalities of giving notice, although prescribed by statute, are directory merely, unless there is a declaration that, unless the formalities are observed, the election shall be void.' In Moyer v. Van De Vanter, 12 Wash. 377, 41 P. 60, 29 L. R. A. 670, 50 Am. St. Rep. 900, a contest over the office of sheriff, it was sought to set aside the election, among other things, because the election officers in certain precincts failed to place the initials of the inspector or any judge upon the ballots before depositing them in the ballot box, as the law then required; and also the statutory requirement in regard to election booths was not complied with. Both were held to be irregularities not affecting the election. Our election law (Rem. & Bal. Code,§ 4785), requires the appointment of two judges and one inspector who shall constitute the election board in each precinct; and provides, in case those appointed are not present at the opening of the polls, the electors present may choose a board of election. The statute, however, fails to state that any election not so presided over by such or all of such election officers shall be void, and it must be held that the provision is directory merely, and the fact that all of the election precincts did not have their full quota of officials cannot be held to vitiate the election. Sanders v. Lacks, 142 Mo. 255, 43 S.W. 653; Gilleland v. Schuyler, 9 Kan. 569; State ex rel. Bancroft v. Stumpf, 21 Wis. 579.

Neither is it essential to the validity of an election that all the election officers be present at all times during the receiving of the ballots; the absence of one or more of them being held to be an irregularity not affecting the result. Packwood v. Brownell, 121 Cal. 478, 53 P. 1079; Anderson v. Likens, 104 Ky. 699, 47 S.W. 867, 20 Ky. Law Rep. 1001; Major v. Barker, 99 Ky. 305, 35 S.W. 543; State v. Nicholson, 102 N.C. 465, 9 S.E. 545, 11 Am. St. Rep. 767; Tanner v. Deen, 108 Ga. 95, 33 S.E. 832; Lee v. State, 49 Ala. 43; Thompson v. Ewing, 1 Brewst. (Pa.) 67.

The law prescribes that each of the election officers before entering upon the discharge of his duties shall take and subscribe to an oath the form of which is given in the statute, but it has uniformly been held that the failure to take such oath, in the absence of any such provision of the law, shall not be held to defeat the election nor disturb its results; such officers, though unsworn, being held to be de facto if not de jure officers. Taylor v. Taylor, 10 Minn. 107 (Gil. 81); People v. Prewett, 124 Cal. 7, 56 P. 619; Sanders v. Lacks, 142 Mo. 255, 43 S.W. 653; Rounds v. Smart, 71 Me. 380; People v. Hilliard, 29 Ill. 413.

Nor will the election be declared illegal because the election officers were not duly chosen or were not qualified. Wells v. Taylor, 5 Mont. 202, 3 P. 255; Thompson v. Ewing, supra.

The failure to open the polls on time, and to keep them open during the time prescribed in the law, is likewise held to be such an irregularity as will not violate the election. Pickett v. Russell, 42 Fla. 634, 28 So. 764; Graham v. Graham, 68 S.W. 1093, 24 Ky. Law Rep. 548; Holland v. Davies, 36 Ark. 446; Fry v. Booth, 19 Ohio St. 25; People v. Hasbrouck, 21 Misc. 188, State ex rel. Bailey v. Smith,

4 Wash. 661, 30 P. 1064, a contest over a school election, it was held that the provision of the law requiring the polls in such election to be open not later than 1 o'clock p. m., and closed not earlier than 8 p. m., was mandatory; but the election was...