State ex rel. Lyon v. Board of County Com'rs of Pierce County

• Decision Date: 26 August 1948
• Docket Number: 30476.
• Citation: 196 P.2d 997,31 Wn.2d 366
• Court: Washington Supreme Court
• Parties: STATE ex rel. LYON v. BOARD OF COUNTY COM'RS OF PIERCE COUNTY et al.

196 P.2d 997

31 Wn.2d 366

STATE ex rel. LYON v. BOARD OF COUNTY COM'RS OF PIERCE COUNTY et al.

No. 30476.

Supreme Court of Washington

August 26, 1948

Department 1

Proceeding by the state of Washington on relation of B. W. Lyon against Board of County Commissioners of Pierce County, wherein C. L Van Bevers and Martha Ellestad intervened, to review a decision of the board granting a variance permit to operate a tavern in a highway-use district. From the judgment defendant board and interveners appeal.

Judgment set aside, and cause remanded with instructions.

Appeal from Superior Court, Pierce County; W. A. Richmond, Judge.

Patrick M. Steele, Hardyn B. Soule, John B Krilich and William N. Goodwin, all of Tacoma, and Robert Campbell, of Puyallup, for appellants.

Burton W. Lyon, Jr., of Tacoma, for respondent.

HILL Justice.

The Pierce county commissioners created a planning commission for that county by virtue of the authority granted by chapter 44 of the Laws of 1935 (Rem.Rev.Stat. (Sup.), §§ 9322-1 to 9322-12), and, by resolution No. 1650, dated April 17, 1944, established certain types of use districts and general zoning regulations for the purpose of promoting the public health, safety, morals, and general welfare.

On June 17, 1946, they created, by resolution No. 2187, highway-use districts, and set forth what kinds of business could be operated within such districts. Taverns were not included, and it was provided that only such restaurants and eating establishments as do not serve beer, wine, or other intoxicating beverages could operate within a highway-use district.

On October 22, 1946, by resolution No. 2320, a limited area on both sides of state highway No. 5 between the city limits of Tacoma and Puyallup, generally known as the Puyallup river road, was zoned as highway-use district zone No. 23.

On April 28, 1947, the board of county commissioners, after a public hearing and on the recommendation of the county planning commission, refused to grant a petition for the removal of the zoning restrictions from highway-use district zone No. 23.

A few days later, on May 2, 1947, C. L. Van Bevers petitioned for a variance permit to operate a tavern in a building belonging to Martha Ellestad, located on state highway No. 5 within highway-use district zone No. 23. After a hearing thereon but without referring the matter to the county planning commission, the county commissioners granted the variance permit on May 20, 1947, there being one negative vote, that of Commissioner Harvey O. Scofield.

B. W. Lyon, a property owner within the highway-use district who had protested the granting of the variance permit appealed to the Pierce county superior court from this decision of the board of county commissioners. Appellants C. L. Van Bevers and Martha Ellestad were each permitted to intervene.

After a hearing which the respondent states was not a trial de novo and the exact character of which is far from clear, there being no statement of facts and nothing to indicate what the court considered or what the procedure may have been, it was determined that the variance permit was

'* * * unlawful and invalid for the reason that the County Commissioners do not have the power under the statute [Laws of 1935, chapter 44; Rem.Rev.Stat. (Sup.), §§ 9322-1 to 9322-12] to grant such variance permits * * *,' and for the further reason that the granting of the permit was arbitrary and capricious and without any factual justification.

From this determination, the board of county commissioners and the interveners, C. L. Van Bevers and Martha Ellestad, appeal to this court.

We have given a factual summary based on the finding of the superior court, so that the issues attempted to be presented by the litigants may be understood. On how the resolutions and the action of the county commissioners on April 28, 1947, to which the court below referred, were brought to its attention the record is silent.

We would feel entirely justified in saying that we would refuse to consider this appeal because of the lack of any adequate record showing what transpired in the court below, were it not for the fact that it is apparent that the superior court for Pierce county had no jurisdiction to consider the respondent's appeal from the board of county commissioners. We are satisfied that the respondent here has mistaken his remedy, and that there was no right of appeal from the action of the board of county commissioners to the superior court, for the reason that the board was acting, or purporting to act, under the authority of a special purpose statute. We have repeatedly held, beginning with Lawry v. Board of Com'rs of Snohomish County, 12 Wash. 446, 41 P. 190, 191, that the statute upon which the respondent relies for his right to appeal from the action of the board of county commissioners to the superior court, i. e., Rem.Rev.Stat. § 4076, refers only to the usual and ordinary proceedings of such boards and not to their proceedings under statutes conferring special powers for special purposes.

In the Lawry case, supra, the question for determination was whether an appeal to the superior court would lie from a decision or order of the board of county commissioners with respect to the removal of a county seat, and Judge Anders said:

'But, in this case, there are special reasons for holding that no appeal will lie from the order complained of. By the statute relating to the removal of county seats, duties are cast upon the board of county commissioners which are separate and distinct from their ordinary and usual duties. In discharging them, it acts as the representative or agent of the legislature, by virtue of a special statute enacted for the sole purpose of clothing it with special powers, and which provides for no appeal. We think the general appeal act refers only to the usual proceedings of the board, and not to special proceedings under a special statute for a special purpose.'

Within a year thereafter, the court had occasion to determine whether an appeal would lie from an order made by the board of county commissioners sitting as a board of equalization. After pointing out that the duties of the county commissioners, so far as the equalization of the assessment roll was concerned, were cast upon them by statute.

'* * * and had no connection with the powers and duties of such officers or board provided for in the acts relating to their general powers and duties. * * *' the court said:

'* * * This being so, it could make no difference whether the decision in question was made by the board of county commissioners acting as a board of equalization, or by a separate board. In either case the section contained in the general act relating to the powers and duties of the board of county commissioners and providing for an appeal therefrom could not apply to such decision. It was made in pursuance of an act providing, in detail, for the assessment and collection of taxes, and in that act must be found the right of appeal, if it exists. And the fact that the right to appeal from any decision is given in the act providing for the general duties and powers of the board of county commissioners can have no effect upon the decision, required of such board by the act, upon this special subject.' Olympia Water Works v. Thurston County, 14 Wash. 268, 272, 44 P. 267, 268.

We again laid down the same rule in Adams County v. Scott, 117 Wash. 85, 200 P. 1112, where we held that the statute here relied upon, providing for appeals generally from the acts of the board of county commissioners, is inapplicable where the board acts under a special law for special purposes.

Again, in State ex rel. Klaas v. Board of Com'rs of Okanogan County 140 Wash. 43, 248 P. 76, 77, we held that the action of the county commissioners of Okanogan county in granting a franchise for a toll bridge could be reviewed by certiorari because there was no right of appeal therefrom, and we said:

'The act authorizing the granting of such franchises does not of it itself give any right of appeal from a decision of the board. ...