State v. Superior Court of Snohomish County

• Decision Date: 12 April 1897
• Parties: STATE EX REL. FAIRBANKS ET AL. v. SUPERIOR COURT OF SNOHOMISH COUNTY ET AL.
• Court: Washington Supreme Court

48 P. 741

17 Wash. 12

STATE EX REL. FAIRBANKS ET AL. v. SUPERIOR COURT OF SNOHOMISH COUNTY ET AL.

Supreme Court of Washington

April 12, 1897

Application on relation of Forest E. Fairbanks and others, for a writ of prohibition directed to the superior court of Snohomish county and Frank T. Reid, judge of said court. Writ denied.

Cooley & Horan, for respondents.

REAVIS J.

Plaintiff in the suit in the superior court and the defendant Fairbanks were each candidates for members of the council of the city of Everett at the municipal election on the 8th of December 1896. The result was a tie vote between them. Thereupon the city clerk, in pursuance of an ordinance under the charter of the city, decided the election by lot, and declared plaintiff the duly-elected member of the council, and issued to him a certificate of election in due form. At the first meeting of the city council thereafter, on the 5th of January, 1897, plaintiff and defendant each appeared in the council room, together with the other members of the council and the mayor. During this meeting the defendant Falconer was mayor. The defendant Fairbanks filed an affidavit to the effect that there was no fair lot cast by the clerk in determining the tie between plaintiff and defendant Fairbanks, and that the certificate of election held by plaintiff was fraudulent. The defendant Knapp then introduced the following resolution: "Whereas, satisfactory evidence has been produced to the council that no legal lot has been cast deciding the tie for councilman in the Fourth ward, and no lot has been cast as provided by ordinance and resolution referring thereto: Therefore, resolved, that the certificate of election as heretofore issued to W. J Gillespie, declaring him elected as councilman from the Fourth ward of the city of Everett, be, and the same is hereby, declared null and void, and the seat now held by said W. J. Gillespie under and by virtue of said alleged certificate of election be and the same is hereby declared vacant." A vote was taken upon the resolution; the defendants Knapp, Kellogg, and Zimmerman voted in the affirmative, and the plaintiff and the three remaining councilmen voted in the negative. The mayor, Falconer thereupon refused to recognize the vote of the plaintiff, and declared that the vote of the council was a tie, and he, in his capacity as mayor, then gave the casting vote, and declared the resolution adopted. Thereupon a vacancy was declared to exist in the council by the same vote as that by which the resolution was adopted, and the mayor ordered that a ballot be taken for councilman to fill the alleged vacancy. The ballot was taken, and Knapp, Kellogg, and Zimmerman cast their ballots for the defendant Fairbanks, which three votes were the only votes cast, and then the mayor declared Fairbanks elected to fill the vacancy, and thereafter and ever since the three councilmen Knapp, Kellogg, and Zimmerman, together with the mayor, Falconer, refused to recognize the plaintiff as a member of the council; while the other three members of the council, together with the city clerk, recognized the plaintiff as the duly-elected member of the council. The defendant Fairbanks persisted in usurping the place of plaintiff as a member of the council, and voting in plaintiff's place. Plaintiff Gillespie filed his bill in equity in the superior court, praying that the several defendants, the mayor, Falconer, and members of the council Knapp, Kellogg, and Zimmerman be enjoined from recognizing Fairbanks as a member of the council, and further commanded to recognize plaintiff as a member of the council, until a judicial determination of the controversy. The defendants objected to the jurisdiction of the superior court of the action, on the ground that it was a proceeding to determine the title to an office, and not cognizable in a suit in equity. The court overruled this objection, and proceeded to try the cause; but before the decree was filed defendants moved here for a writ of prohibition against the superior court on the ground of want of jurisdiction in that court to try the cause and issue an injunction as prayed for in the complaint. An alternative writ was granted here, and, upon the return of the judge of the superior court, the facts as stated above are found. At the trial of the cause in the superior court, and prior thereto, relators objected to the jurisdiction, but the judge distinctly stated in a written opinion that the title to the office of councilman could not be tried in the suit before him; that he only assumed to find which was the de facto councilman in possession of the office, and to protect such acting councilman from unlawful intrusion upon his office. At the trial, plaintiff's complaint was amended so as to state clearly that plaintiff was in...