Parish v. Collins

• Decision Date: 08 August 1906
• Parties: PARISH v. COLLINS et al.
• Court: Washington Supreme Court

86 P. 557

43 Wash. 392

PARISH v. COLLINS et al.

Supreme Court of Washington

August 8, 1906

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Mandamus on relation of C. L. Parish, to compel R. H. Collins and others, as the mayor and city council of the city of Kirkland, to submit to the voters the question as to the disincorporation of the city. From the issuance of the writ respondents appeal. Reversed, and action ordered dismissed.

Edward Judd, for appellants.

Frank S. Griffith, for respondent.

MOUNT C.J.

Action in mandamus to compel the mayor and city council of the city of Kirkland to submit to the voters of such city the question of the disincorporation thereof. The writ was issued as prayed, and the mayor and council appeal.

Respondent moves to dismiss the appeal upon the grounds (1) that no appeal bond was filed in the case; (2) that the appellants have not printed the findings of fact in their brief. The motion must be denied upon both grounds. While the mayor and city council are the nominal parties, the action is really against the city itself, whose life depends upon the result of the submission. The appeal is therefore in behalf of the corporation, which is by law exempt from the necessity of furnishing an appeal bond. Townsend Gas & Elec. Light Co v. Hill, 24 Wash. 469, 64 P. 778. The case of State ex rel. Smith v. Blumberg, 34 Wash. 640, 76 P. 272 relied upon by respondent, is not in point. The distinction is clearly pointed out in that case. Subdivision 5 of rule 8 (40 P. x) does not require appellants to print all the findings made by the lower court, but only those on which any question is sought to be raised. This has been done in the appellants' brief. The motion to dismiss is therefore denied.

The affidavit for the writ, after alleging that the city of Kirkland was a municipal corporation of the fourth class containing less than 250 legal voters, and that the appellants were the mayor and city council respectively, alleged, in substance, that, on the 20th day of November, 1905, the affiant and 69 others, at a regular meeting of said council, presented a petition to said council, praying that the said council should forthwith order an election to be held in said town for the purpose of determining whether or not said corporation should be dissolved, and for a receiver for the purpose of winding up the affairs of such town. The affidavit also alleged that each person named in the petition was a duly qualified voter in such town; that the petition contained the names of more than a majority of the legal voters of said town, and that the mayor and council refused to consider the said petition, and refused to call an election as prayed for therein, or at all; that the said mayor and council, after the filing of the petition, approached the petitioners and solicited them to withdraw their names from the petition, and that said mayor and council had declared that they would not grant such petition, but would deny and fight the same. Upon this showing, the lower court granted a show-cause order against the said appellants, who appeared to move to strike certain allegations in the affidavit, and upon their motion being denied,...