State v. Irwin
| Decision Date | 07 August 1913 |
| Citation | 74 Wash. 589,134 P. 484 |
| Parties | STATE ex rel. ADAMS et ux. v. IRWIN, Mayor. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, Clarke County; H. E. McKenny Judge.
Mandamus on the relation of T. H. Adams and another, against C. S Irwin, mayor of the city of Vancouver. Judgment for relators. Defendant appeals. Affirmed.
Miller, Crass & Wilkinson, of Vancouver, for appellant.
McMaster Hall & Drowley, of Vancouver, for respondents.
This is a mandamus proceeding, wherein the relators seek to compel the mayor of the city of Vancouver to issue a warrant upon the general fund of that city in payment of the purchase price of land sold by them to the city for cemetery purposes. Judgment was rendered in favor of the relators, from which the defendant has appealed.
On May 3, 1911, the city, through its council, purchased the land here involved from its then owners for the sum of $10,347, when a warrant was issued to them in payment of the purchase price, and conveyance of the land made to the city. This warrant was sold by the owners to the Vancouver National Bank. Soon thereafter a taxpayer of the city commenced an action in the superior court for Clarke county, seeking to have payment of the warrant enjoined upon the ground that the purchase of the land by the city was illegal and void, in that one of its councilmen was at the time a part owner of the land, and received his due proportion of the purchase price thereof. Thereafter negotiations were entered into between the bank and the city looking to a settlement of the controversy, which resulted in the bank surrendering the warrant to the city and the city conveying the land to the relator T. H. Adams, the then president of the bank. A few days thereafter the city council met and caused advertisement to be made, inviting proposals to sell to the city land for cemetery purposes. In response to this action of the city, there was received by it, among other proposals, one from the relator T. H. Adams, offering to sell to the city this same land for the sum of $10,347, with interest added thereto to be computed from the 10th day of May, 1911, which we assume was the day on which the bank purchased the warrant which it thereafter surrendered to the city. The council thereupon, on April 1, 1912, voted to accept this proposal, and ordered the issuance of a warrant by the mayor and city clerk in payment of the purchase price which, upon computation of interest, was found to be $10,900.56. On the following day, April 2, 1912, the city clerk duly prepared a warrant drawn upon the general fund of the city for that sum, which warrant was presented to the mayor for his signature when he refused to sign the same. This proceeding followed, resulting in judgment against appellant, requiring him to sign and issue such warrant, when he appealed from such judgment, as we have above stated.
It is first contended by counsel for appellant that the court erred in denying his motion to quash the alternative writ of mandate, made upon the ground that the proceeding was not commenced by affidavit nor by complaint and summons. The allegations of the relators' cause of action were made in the form of a verified complaint, which was so designated in the caption thereof, instead of in the form of an affidavit. It was upon this verified complaint that the alternative writ of mandate was issued and served there being no summons issued. Counsel concede that mandamus proceedings may, under our law, be instituted by the filing of a statement of relators' cause of action in either of these forms. Smith v. Ormsby, 20 Wash. 396, 55 P. 570, 72 Am. St. Rep. 110; State ex rel. Cicoria v. Corgiat, 50 Wash. 95, 96 P. 689. They insist, however, that when the relator's cause of action is stated in the form of a complaint, the issuance and service of a summons upon the defendant is necessary to enable the court to acquire jurisdiction, and that it is only when the relator's cause of action is stated in the form of an affidavit that the court can acquire jurisdiction by the issuance and service upon the defendant of an alternative writ of mandate, and that, therefore, there was no authority for the issuance and service of such a writ as the original process in this proceeding. It is true that section 1015, Rem. & Bal. Code, relating to the issuance of such a writ, provides 'it must be issued upon affidavit on the application of the party beneficially interested.' While the...
To continue reading
Request your trial