Seymour v. City of Tacoma

• Decision Date: 02 June 1893
• Court: Washington Supreme Court
• Parties: SEYMOUR v. CITY OF TACOMA ET AL.

33 P. 1059

6 Wash. 427

SEYMOUR v. CITY OF TACOMA ET AL.

Supreme Court of Washington

June 2, 1893

Appeal from superior court, Pierce county; Emmet N. Parker, Judge.

Action by Edmund Seymour, as a taxpayer of the city of Tacoma against the city of Tacoma, Herbert S. Huson, Samuel C Slaughter, George W. Boggs, John T. Lee, and the Tacoma Light & Water Company to enjoin the issuance of city bonds for the purchase of a waterworks and lighting plant. A demurrer to the answers was sustained, and, defendants having elected to stand on their answers, there was a decree that the injunction issue as prayed for in the complaint. Defendants appeal. Reversed.

Dunbar C.J., dissenting.

Parsons, Corell & Parsons and F. H. Murray, for appellants.

A. E Buell, for respondent.

STILES J.

The election sought to be enjoined in the former case of Seymour v. City of Tacoma, (decided March 24, 1893,) 32 P. 1077, having been held, and it having resulted in a legal majority in favor of the proposition then submitted, the same plaintiff now seeks to enjoin the issuance of the bonds authorized by this second suit against the city and the officers who constitute the sinking fund commission or finance committee of the city under its charter, they being charged with the duty of negotiating all such issues of bonds. The Tacoma Light & Water Company is also made a defendant, because of a claim alleged to be made upon its part that it has a binding contract for the sale of its plant through its offer to sell, the passage of the Ordinance No. 790, and the result of the election. The last clause of section 9 of the ordinance mentioned directed the city clerk to publish the election notice in the city official newspaper for "thirty days next preceding said election," and to post the same "for the like period" at all of the places designated as voting places. The election was noticed for and was held on Tuesday, the 11th day of April, and the complaint shows that, in fact, the notice was published in the official newspaper from March 11th to April 9th, inclusive, a full period of 30 days; but it was not published in said paper on April 10th, which was Monday, and the last day preceding the election. The complaint does not so state, but we shall assume that the official newspaper was a daily paper, which was issued on Monday. The complaint further shows that the notices were posted only 26 days next preceding the day of election. These two omissions, it is claimed, and the trial court has so found, invalidate the election, and render it proper and legally necessary that no further steps be taken towards carrying out the object of the vote, notwithstanding that the complaint shows that more than three-fifths of the votes cast were in favor of the proposition submitted, but does not contain a single word to the effect that in any respect the election was otherwise than a fair, full, and free expression of the popular will. But there was no formal objection to the complaint, and, the answer coming in, a demurrer was interposed to it, on the ground of insufficiency, and this demurrer the court sustained. The answer, in response to the allegations of the complaint upon the subject of the notice, was very full and direct, and showed the following facts: (1) That the time and places of holding the election were known to all the qualified voters in said city; (2) that the election was held at all of the voting places in the city in pursuance of the notice given by the clerk; and (3) that 5,107 votes were polled. The substance of this showing was that everybody qualified to vote had notice of the time and place of the election, and that a substantial body of the electors actually took part in it. Therefore, in passing upon this question, we have the single proposition whether the failure of the clerk to exactly comply with two requirements made by the ordinance-viz. that the publication should be for the 30 days next preceding election day, and that the notice should be posted-should avoid the popular action expressed under the supposition that all things had been done regularly. This election was held under the mandate of the constitution, art. 6, § 6, and the internal improvement act of 1890, § 2, (Laws, p. 521,) the former of which prescribed nothing in regard to notice, while the latter requires 30 days' publication of the notice in each issue of the city paper. It seems that the court below based its ruling on this point somewhat, at least, upon the ground that this action is brought against the members of the sinking fund commission, who are to act under and by virtue of the authority contained in Ordinance 790. It is true that the city charter (section 84) provides that this commission shall negotiate city bonds in accordance with the provisions of the ordinance authorizing such bonds, and section 5 of the ordinance contained directions for their guidance in that matter; but the commission, under the charter, have nothing to do with either the election or the ascertainment of the result. They do not even issue the bonds; that duty devolving upon the mayor, with the attestation of the clerk and comptroller. The city council, by section 23 et seq. of the charter, makes the official canvas of all elections, and declares the result; so that the commission need look no further for prima facie authority to act.

But it would do no good to decide this case upon any such narrow ground. The bottom question is, is literal compliance with the formalities prescribed for giving notice in this kind of an election a sine qua non? 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. "It is a canon of election law that an election is not to be set aside for a mere informality or irregularity, which cannot be said in any manner to have affected the result of the election." Dill. Mun. Corp. § 197, note 3, and cases cited. It is not pretended that the omissions in this case had any effect whatever on the result, or that a single vote additional would have been cast if the clerk had followed the ordinance to the letter; and the answer expressly negatives any possibility of any such outcome, which the demurrer admits to be true. Learned counsel for the respondent, however, does not controvert the general proposition here laid down, but insists that, because this was an election to authorize bonds, a rule of strict construction should be adopted. But we think that the most that can be said of it is that it was a special election, and is to be governed by the rules applicable to special elections. Only one case is cited for our consideration on this point. Harding v. Railway Co., 65 Ill. 90. That was a railroad aid bond case, and the statute required 30 days' notice, but no notice whatever was given. The opinion of the court stated the ground of the decision as follows: "Such municipalities were not created with the view to engage in commerce, or to aid in the construction of railways, but for governmental purposes only. When they exercise the functions given by the statutes under consideration, the powers granted must not only be clearly conferred but strictly pursued. If the mode prescribed for carrying into effect the right to issue bonds is not complied with in all material matters, then the bonds should not be issued." In a later case ( Railroad Co. v. Town of Virden, 104 Ill. 339) the same court, in speaking of the rights of bondholders, said: "That depends upon whether there has in fact been a substantial compliance with the requirements of the law authorizing the election to be held; otherwise, it would be in the power of the clerk to invalidate bonds clearly legal and binding, by refusing to make a record that the order was made or notice given." In Town of Coloma v. Eaves, 92 U.S. 484, a case of the same class, the opinion recites the provisions of the statute at length, and dismisses them with the remark that "most of these provisions are merely directory." The substance of all the cases upon this subject, of which we have examined many scores, is that there must be a substantial compliance with the requirements of the law, and the same rule should apply here, although the object sought to be accomplished here was strictly within the legitimate purposes of the municipal corporation. The reasons for the holdings of the courts on this subject are that only jurisdictional matters are mandatory. Dishon v. Smith, 10 Iowa, 212, is an oft-quoted case upon this point, and it was there said: "It is an error to regard this as a jurisdictional matter. This idea pertains to cases where the court acts judicially and in matters between party and party, and not to one of the nature of the present one, which is a vote of the people. Nor does the want of such notice invalidate the election. In matters of such public nature the observance of each particular is not held a prerequisite to validity, and it is the general rule of law that statutes directing the mode of proceeding of public officers relating to time and manner are directory." That was a case of a special election to remove a county seat. Rev. St. Iowa, 1860,§ 231. As to special elections to fill vacancies in offices, see Wheat v. Smith, (Ark.) 7 S.W. Rep. 161, where it was held that a statute requiring publication and posting of notice was substantially complied with by posting only, the fact of the election having been generally known, and about two-thirds of the usual vote having been polled. In the matter of the incorporation of Anacortes, the United States circuit court...