State v. Smith

• Citation: 30 P. 1064,4 Wash. 661
• Parties: STATE EX REL. BAILEY v. SMITH.
• Decision Date: 12 August 1892
• Court: Washington Supreme Court

30 P. 1064

4 Wash. 661

STATE EX REL. BAILEY v. SMITH.

Supreme Court of Washington

August 12, 1892

Appeal from superior court, Jefferson county; MORRIS B. SACHS Judge.

Quo warranto proceedings by the state of Washington on the relation of Charles F. Bailey against L. D. Smith. From a judgment for relator, respondent appeals. Reversed.

Johnson & Moody, for appellant.

Tyler, Hays & Tyler, for respondent.

STILES J.

The respondent was the clerk of school district No. 1 of Jefferson county, which included the city of Port Townsend and prior to the annual election of 1891, pursuant to section 55 of the general school law of 1890, he published an election notice, in which he notified the electors of the district that the polls would be open from 12 M. to 7 o'clock P. M. The last proviso of section 55 required that in cities and incorporated towns the polls should be open not later than 1 o'clock P. M., and closed not earlier than 8 P. M. The polls did actually close at 7 o'clock, at which time the vote stood 650 in favor of appellant, and 280 in favor of the respondent, who was a candidate for re-election. It may be conceded that the requirement of a statute that the polls should not close earlier than 8 o'clock is mandatory, and it may be conceded, also, that it was the duty of the election officers to disregard the notice, and keep the polls open until the later hour; but, in our judgment, such a concession should not be made to the respondent, since he himself is charged by the statute with the duty of specifying in his notice the hours between which the polls are to be kept open, and the election officers at such election are far more likely to be governed in their actions by the wording of the notice than by an inspection of the law. Moreover, the electors would also be likely to be misled, and such of them as did not succeed in reaching the polls before 7 o'clock would probably not resort to the statute to ascertain the hour of closing, when the notice published for their information contained such an error. Another reason for denying to the respondent any benefit of this mistake is that his information contains no allegation that, had the polls been kept open an hour longer, he would have been in any wise benefited by it. In all such cases there must appear some substantial reason why courts should interfere to overthrow an election, in the absence of any allegation of fraud, to the effect...