State v. Shumway
| Decision Date | 26 July 1926 |
| Docket Number | 19848. |
| Citation | 248 P. 76,140 Wash. 43 |
| Parties | STATE ex rel. KLAAS et al. v. SHUMWAY et al. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Okanogan County; C. H. Neal, Judge.
Petition by W. E. Buell to W. S. Shumway and others, as the Board of County Commissioners of Okanogan County, for a franchise to construct a toll bridge, at hearing of which Frank Klaas and others protested. An order granting the franchise was entered and Klaas and others applied to the superior court for a writ of review, which was granted. Members of the county board and W. E. Buell filed a demurrer to the complaint for the writ which was sustained, and also a motion to quash the writ already issued, which was granted, and plaintiffs appeal. Reversed.
J Henry Smith, of Okanogan, and Peter McPherson, of Brewster (Wm. C. Brown, of Okanogan, of counsel), for appellants.
Johnson & O'Connor, of Okanogan, and Hartman & Hartman, of Seattle, for respondents.
One W E. Buell petitioned the board of county commissioners of each Okanogan and Douglas counties for a franchise 'to construct, erect and maintain a toll bridge over and across the Columbia river,' the boundary line of the two counties. On the day fixed for hearing the petition before the board of commissioners of Okanogan county, Frank Klaas and others, specially interested, by special appearance objected to the jurisdiction of the board and to the proceedings as being erroneous, and without waiving their special appearance filed a general protest against the granting of the franchise. However, the board entered an order granting the franchise and reciting, among other things therein, that the board had already met with the Douglas county board in joint consideration of the matter. Promptly Klaas and his associates, without notice, applied to the superior court for a writ of review of the proceedings. The writ was granted. The members of the board of county commissioners of Okanogan county as such and W. E. Buell appeared in the cause and filed a demurrer to the complaint for the writ of review and also a motion to quash the writ already issued on the ground that the affidavit or complaint upon which it was granted did not state facts sufficient to justify granting the writ. The demurrer and motion were sustained and granted, as the order recites, 'all on the ground that the acts herein sought to be reviewed are legislative acts and not subject to review, by this court.' It was further ordered that the proceeding be and it was dismissed. The plaintiffs therein have appealed.
Chapter 93, Session Laws 1919, the same being sections 6441-6446 Rem. Comp. Stat., provides for the granting of franchises for the construction and operation of toll bridges. Section 1 of the act provides that boards of county commissioners are authorized to grant such franchises to persons or corporations 'outside of incorporated cities and towns, over and across streams within their respective counties, and over and across streams which are boundaries of counties.' Section 2 fixes the time limit and terms and conditions of such franchise. Section 3 provides that where the stream to be bridged is a boundary between two counties, the county commissioners of both counties shall join in granting the franchise.
The affidavit filed in this case in the superior court upon which the writ issued alleged, among other things: (1) That the notice of hearing given by the auditor did not comply in essential and important specified particulars with the order of the board directing the notice; (2) that the notice was signed by the auditor instead of the board; (3) that the franchise granted did not conform to the notice given; and (4) that the franchise granted is too indefinite as to the location of the bridge to be of any validity, as by its terms the bridge may be constructed from any point on one side of the...
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