State ex rel. Kurtz v. Pratt, 33025

• Decision Date: 06 August 1954
• Docket Number: No. 33025,33025
• Citation: 45 Wn.2d 151,273 P.2d 516
• Court: Washington Supreme Court
• Parties: STATE ex rel. KURTZ et al. v. PRATT et al.

Page 151

45 Wn.2d 151

273 P.2d 516

STATE ex rel. KURTZ et al. v. PRATT et al.

No. 33025.

Supreme Court of Washington, Department 1.

Aug. 6, 1954.

Sather, Livesey & Kingsbury, Bellingham, Jack S. Kurtz, Bellingham, for relators.

Tom Durham, Pros. Atty., Bellingham, for auditor.

Sherwood & Forrest, Marshall Forrest, T. B. Asmundson, R. Frank Atwood, Jr., Bellingham, for respondent.

PER CURIAM.

In this proceeding, originating in this court (argued here on July 30, 1954), the relators seek an order restraining the Whatcom county auditor from placing the names of Marshall Forrest, T. B. Asmundson, and R. Frank Atwood on the ballot as Justice of the Peace candidates in the city of Bellingham at the forthcoming election. Relators also seek an order directing the auditor to prepare the ballots so that two positions for justice of the peace will appear thereon rather than only the one position now contemplated by the auditor.

There is no dispute as to the facts in this matter. Relators are candidates for the office of justice of the peace in the city of Bellingham. Each has filed appropriate documents and had paid a filing fee of $54 to the county auditor. The above-named individual respondents, other than the auditor, also claim to be candidates for the office of justice of the peace, entitled to have their names on the ballot. As a result of a mandamus action by the latter in the superior court for Whatcom county, the auditor was ordered to accept the filing fees of $12 and the declarations of candidacy proffered by them. The auditor has done so. Apparently, the superior court did not order the names of respondent candidates printed on the ballot, and did not pass upon any constitutional questions. There has been no appeal from the order of the superior court in the mandamus action there.

Section 1, chapter 156, Laws of 1951, RCW 3.12.021, provides, in effect, that Belingham, having a population of between twenty thousand and seventy-five thousand, shall have two justices of the peace, unless such number is reduced by action of the county commissioners. The Whatcom county commissioners have taken action, as provided in the above-mentioned section, to reduce the number of the justices of peace and to provide for only one such position in the city of Bellingham. Section 1, chapter 156, Laws of 1951, reads:

'Section 1. The number of justices of the peace to be elected in cities having a population of 5,000 or more, according to the last census, shall be as follows: 5,000 to 20,000, one; 20,000 to 75,000, two; 75,000 to 125,000, three; 125,000 to 175,000, four; and one additional for each 150,000 or major fraction thereof above 175,000. The board of county commissioners may reduce the number of justices of the peace by notifying the secretary of state ninety days prior to the general election at which such reduction is sought. The secretary of state shall order the ballots to be printed to comply with the action of the board of county commissioners.'

Relators contend: (1) That the provision contained in § 1, chapter 156, Laws of 1951, permitting county commissioners to reduce the number of justices of the peace, specified therein by the legislature, is unconstitutional in that it is an improper attempt to delegate legislative power to the commissioners, considering amendment twenty-eight to the state constitution, which, in effect, provides that the number of justices of the peace shall be determined by the legislature. See Manus v. Snohomish County Justice Court District Committee, Wash., 271 P.2d 707. (2) That the unconstitutional portion of § 1, chapter 156, and other portions of such chapter declared to be unconstitutional in the Manus case, supra, are severable from the remaining portions of chapter 156 (which relate to justices of the peace in cities). (3) That such remaining portions stand by themselves an are valid and constitutional, among other things, (a) establishing two justices of the peace for Bellingham (section 1), (b) carrying salaries of $5,400 per year (section 4). (4) That consequently, the filing fees of $12 proffered by each of the three above-mentioned individual respondents, are inappropriate and do not entitle them to be listed on the ballot as candidates. Lastly, it is contended by relators that it is proper for the supreme court to entertain their petition and to grant the requested relief in a proceeding originating in this court.

In connection with this latter contention, relators cite and rely upon State ex rel. Reynolds v. Howell, 70 Wash. 467, 126 P. 954, 41 L.R.A.,N.S., 1119, but apparently rely principally upon Rem.Rev.Stat. § 5202, cf. RCW 29.04.030, reading, in part, as follows:

'Whenever it shall appear by affidavit to any judge of the supreme court or superior court of the county that any error or omission has occurred or is about to occur in the printing in the name of any candadate on official ballots, or that any error has been or is about to be committed in printing the ballots, or that the name of any person has been or is about to be wrongfully placed upon such ballots, or that any wrongful act has been performed or is about to be performed by any judge or clerk of the primary election, the county auditor, canvassing board or member thereof, or by any person charged with a duty under this act, or that any neglect of duty by any of the persons aforesaid has occurred, or is about to occur, such judge shall, by order, require the officer or person or persons charged with the error, wrongful act or neglect, to forthwith correct the error, desist from the wrongful act, or perform the duty, and to do as the court shall order, or to show cause forthwith why such error should not be corrected, wrongful act desisted from, or such duty or order not performed. Failing to obey the order of such court shall be contempt. * * *'

Respondent candidates agree with relators that the portion of § 1, chapter 156, attempting to authorize county commissioners to reduce the number of justices of the peace is unconstitutional, but agreement ends at this point. Respondent candidates contend that the provisions of § 1 of chapter 156 are not severable; that the unconstitutional portion carries the remainder of the section with it and invalidates the whole. They further contend that § 1 is not severable from §§ 2 through 7, inclusive; and that §§ 1 through 7, inclusive, are not severable from those sections of chapter 156 invalidated on constitutional grounds in the Manus case. In other words, that chapter 156 must stand or fall as a whole; consequently, that the entire chapter is invalid. Lastly, the county auditor contends that relators are not entitled to the requested relief in an original proceeding in the supreme court because of the limited constitutional jurisdiction of this court with respect to the issuance of extraordinary writs, including prohibition, which the auditor contends is the relief actually sought by relators. The auditor makes a very forceful argument that his actions in preparing the ballot may in no event be considered judicial or quasi-judicial; that original prohibition in the supreme court is authorized by the constitution and the case law of this state only in relation to judicial or quasi-judicial acts. He cites and relies...