State v. Doherty

• Citation: 47 P. 958,16 Wash. 382
• Parties: STATE EX REL. MULLEN v. DOHERTY.
• Decision Date: 01 February 1897
• Court: United States State Supreme Court of Washington

47 P. 958

16 Wash. 382

STATE EX REL. MULLEN v. DOHERTY.

Supreme Court of Washington

February 1, 1897

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by the state of Washington, on the relation of Robert B Mullen, against Thomas E. Doherty. Judgment for relator, and defendant appeals. Reversed.

Dunbar J., dissenting.

Govnor Teats and W. C. Sharpstein, for appellant.

Claypool Cushman & Cushman and Doolittle & Fogg, for respondent.

GORDON J.

This action was instituted in the superior court of Pierce county to oust the appellant, Doherty, from the office of commissioner of public works of the city of Tacoma. The relator, Mullen, was a member of the board of public works, appointed under the provisions of the city charter of the city of Tacoma, and the appellant, Doherty, claims the office by virtue of certain amendments to the city charter, which he alleges were adopted by the legal voters of the city at an election held on April 7, 1896. Under the provisions of these alleged amendments Doherty claims to have been duly appointed as commissioner of public works. The contention of the relator is that these amendments were never legally adopted, and that they are inoperative, and void. Issue of fact was joined, and the cause tried to the court. Findings of fact and conclusions were duly entered, upon which judgment was entered for the relator, from which judgment Doherty has appealed.

The first point urged in the brief of the appellant is that the court erred in overruling appellant's demand for a jury trial. The contention is that sections 32, 33, and 34 of the act of March 15, 1893 (Sess. Laws 1893) p. 416, are unconstitutional, in that they abridge the right to a trial by jury. The provision of the constitution relied upon is found in section 21, art. 1, of the declaration of rights, which, among other things, provides that "the right of trial by jury shall remain inviolate. ***" The decisions bearing upon this branch of the case are conflicting, but an examination of the numerous cases cited, and others not referred to, by counsel, has satisfied us that the great weight of authority in this country is against the position contended for by appellant's counsel. The effect of the declaration of the constitution above set out is to provide that the right of trial by jury as it existed in the territory at the time when the constitution was adopted should be continued unimpaired and inviolate. Whallon v. Bancroft, 4 Minn. 109 (Gil. 70); State v. Minnesota Thresher Manuf'g Co., 40 Minn. 213, 41 N.W. 1020; Taliaferro v. Lee (Ala.) 13 So. 125. Section 248 of the Code of 1881, in force at the date of the adoption of the present constitution, was as follows: "Either party shall have the right in an action at law, upon an issue of fact, to demand a trial by jury." But proceedings in quo warranto, prohibition, and the like are special and extraordinary proceedings, and do not fall within the purview of section 248, supra, which restricted the right of trial by jury to actions denominated as actions at law. Whallon v. Bancroft, supra; State v. Minnesota Thresher Manuf'g Co., supra; Taliaferro v. Lee, supra. This construction of the constitutional provision in question harmonizes with the further provision contained in section 4, art. 4, of the constitution, which provides that "the supreme court shall have original jurisdiction in *** quo warranto," and any other construction of the first-mentioned provision would render the latter provision of the constitution nugatory and ineffectual. But, aside from this, we think that by the great weight of authority the right to trial by jury in quo warranto proceedings did not exist at common law at the date of the early settlement of this country. We have discovered no case in which the right was upheld prior to the passage of the act of parliament in 1730 known as 3 Geo. II. c. 25, and, as well said by the supreme court of Arkansas in State v. Johnson, 26 Ark. 281: "If this right existed before this time, it was certainly a work of supererogation on the part of parliament to enact the law." One of the best-considered cases which we have examined upon this subject is that of Taliaferro v. Lee, supra, decided in 1893, wherein it is said that: "In proceedings to try the right to a public office there was no common-law right of the suitor to a trial by jury, and hence such suitor is not within the protection guarantied by that clause of the bill of rights which provides that the right of trial by jury shall remain inviolate." See, also, Spell. Extr. Rel. § 1875; State v. Vail, 53 Mo. 97; Wheat v. Smith (Ark.) 7 S. W. 161; State v. Lupton, 64 Mo. 415.

2. The respondent contends that the charter amendments upon which the right of the appellant to the office is based were never legally submitted or adopted by the voters, because the notice required by the constitution and laws of the state and ordinance of the city council was not given. The provision of the constitution upon which this contention rests is section 10, art. 11, providing: "*** All elections in this section authorized shall only be had upon notice, which notice shall specify the time to call such election, and shall be given for at least ten days before the time of election in all election districts of said city. ***" The provision of the statute upon which the respondent relies makes it the duty of the legislative authority of the city to "give at least ten days' notice in each election district of said city, by publishing such notice in two daily newspapers published in said city, and by causing the same to be posted at each polling place in the several election districts thereof, of an election, which notice shall specify the object for which said election is called." Section 3, Act March 24, 1890 (Sess. Laws 1890, p. 216). Section 4 of the ordinance submitting the proposed amendments is as follows: "That it shall be the duty of the city clerk, and he is hereby ordered and required, to post at each of the polling places within the city of Tacoma, on or before said April 7th, 1896, so that the same shall be prominently posted upon that date, a full, true, and correct certified copy of each and every one of the proposed amendments to the said city charter as contained in this ordinance, for reference by electors and election officers." The clerk complied with section 4 of the ordinance in all particulars except that he did not post certified copies of the proposed amendments in the different polling places within the city. But the court found that newspaper clippings containing copies of the proposed amendments "were duly posted in all of the voting booths of the city of Tacoma by the election officers at said voting places." The court also found that notice of the election signed by the city clerk was published in the Tacoma Daily Ledger, the Tacoma Morning Union, and the Evening News,-all daily newspapers published in said city,-from the 28th of March to the 7th day of April, inclusive, and that no other or further notice of such election, nor the election on said proposed amendment, was given. The court found that these newspapers circulated throughout the political divisions of the city of Tacoma, and 120,000 copies were distributed in each and every one of the political divisions and precincts. Also: "That the said amendments were discussed by the people generally in their homes, from the platform, and from the pulpit in the various churches of the city, to such an extent that the pendency of said election for the adoption or rejection of said proposed amendments was a matter of public notoriety throughout said city." The election at which these proposed amendments were submitted was the annual municipal election provided by law for the election of city officers. It appears from the record that at that election 5,364 was the highest number of votes cast, and that of this number 3,694 votes were cast upon the question of the amendment which related to the office of commissioner of public works. The trial court concluded: "That the posting of full, true, correct, and certified copies of each and every one of...