State v. Superior Court for King County

• Decision Date: 26 October 1926
• Docket Number: 20304,20317.
• Parties: STATE ex rel. FERGUSON v. SUPERIOR COURT FOR KING COUNTY et al. STATE ex rel. RYAN v. SAME.
• Court: Washington Supreme Court

250 P. 66

140 Wash. 636

STATE ex rel. FERGUSON v. SUPERIOR COURT FOR KING COUNTY et al.

STATE ex rel. RYAN v. SAME.

Nos. 20304, 20317.

Supreme Court of Washington

October 26, 1926

Department 2.

Certiorari by the State, on the relation of D. E. Ferguson, to the Superior Court for King County, Austin E. Griffith, Judge, to review a judgment for plaintiff in action for writ of mandate by John Quient against D. E. Ferguson as auditor of King County, and certiorari by the State, on the relation of George S. Ryan, to the Superior Court for King County, Calvin S. Hall, Judge, to review a judgment for defendants in action for writ of prohibition by George S. Ryan against D. E Ferguson, as County Auditor, and others. Both judgments reversed, with directions.

Ewing D. Colvin, Harry A. Rhodes, and Wm. G. Long all of Seattle, for plaintiff.

H. E Foster and Wm. A. Gilmore, both of Seattle, for respondents.

In No. 20317:

Chadwick, McMicken, Ramsey & Rupp, Hugh M. Caldwell, and John P. Lycette, all of Seattle, for plaintiff.

Ewing D. Colvin and Harry A. Rhodes, both of Seattle, for respondents.

PARKER J.

These are certiorari proceedings in this court wherein the relators seek review and reversal of two judgments rendered by the superior court for King county.

The first is a judgment of the superior court for King county, Hon. Austin E. Griffith presiding, awarding, upon application of John Quient, a writ of mandate commanding this relator, D. E. Ferguson, as auditor of King county, to give notice to the electors of that county for the holding of an election at the time of the general election to be held November 2, 1926, to elect an incumbent to one of the positions of judge of the superior court for that county for the remainder of the regular four-term expiring in January, 1929, a vacancy having been caused in that position by the recent resignation of Hon. Charles H. Paul, the duly elected incumbent for that full 4-year term.

The second is a judgment of the superior court for King county, Hon. Calvin S. Hall presiding, denying an application made by George S. Ryan for a writ of prohibition prohibiting this relator, D. E. Ferguson, as auditor of King county, and the other members of the election board of that county, from proceeding with the giving of notice for such an election, and from further providing for the holding of such an election.

While these two proceedings are separate in the bringing of the two judgments in question to this court for review, there are certain conceded facts common to both cases, which, to our minds, become decisive of both cases calling for a correct disposition of each in harmony with the correct disposition of the other. We therefore dispose of both of them by this decision.

At the general November election of November, 1924, Hon. Charles H. Paul was duly elected to one of the positions of judge of the superior court for King county for the full 4-year term, commencing in January, 1925, and expiring in January, 1929. At all times thereafter, until October 15, 1926, Judge Paul was the duly elected, qualified, and acting judge occupying that position. He tendered to the Governor his resignation from that position, which became effective on October 15, 1926. The Governor accepted the resignation, and on the following day, October 16, 1926, appointed Hon. Walter B. Beals to the position, who immediately qualified by taking his oath of office, and thereupon became, for the time being, the duly qualified and acting incumbent of the position. Immediately upon the resignation of Judge Paul becoming effective, and a vacancy in the position being so created, this relator, D. E. Ferguson, as auditor of King county, evidenced his intention not to call for or give notice of an election to fill the vacancy by the electors at the coming general election to be held November 2d. Thereupon John Quient, a voter and taxpayer of King county, commenced a mandamus action in the superior court of that county against Ferguson, as auditor of that county, seeking a writ of mandate compelling Ferguson, as auditor, to call for and give notice of such an election. Proceedings were had in that action in the superior court, Hon. Austin E. Griffith presiding, resulting in a judgment awarding a writ of mandate directing Ferguson, as auditor, to call for, and give notice of, the holding of such an election at the time of the holding of the general election on November 2, 1926.

It is to review and reverse that judgment that the first of these certiorari proceedings is being prosecuted in this court.

Soon after the awarding of the writ of mandate by the superior court in the above-mentioned mandamus action, George S. Ryan, a voter and taxpayer of King county, commenced a prohibition action in the superior court for King county against Ferguson, as county auditor, and the other members of the election board of that county, seeking a writ of prohibition prohibiting them from calling, providing for, or holding, an election to choose an incumbent for the position in question at the general election to be held November 2, 1926. The facts appearing in the prohibition action, so far as we need here notice them, are the same as above related as appearing in the mandamus action; and, in addition thereto, there were shown the proceedings had and the judgment rendered in the mandamus action. Proceedings were had in the prohibition action in the superior court, Hon. Calvin S. Hall presiding, resulting in a judgment denying the awarding of a writ of prohibition as prayed for. It is to review and reverse that judgment that the second of these certiorari proceedings is being prosecuted in this court.

We have noticed that the vacancy in the position of judge of the superior court here drawn in question occurred by the resignation of Judge Paul on October 15, 1926; that is, but 18 days prior to November 2, 1926, the date of the holding of the next general election. Counsel who are here seeking to uphold the judgments of the superior court seem to proceed principally upon the theory that the following constitutional and statutory provisions are controlling in support of those judgments:

In section 5 of article 4 of our state Constitution we read:

'If a vacancy occurs in the office of judge of the superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term.'

In section 5157, Rem. Comp. Stat., a section of our general election law in force in 1922, we read:

'It shall be the duty of each county auditor to give at least thirty days' notice of any general election, and at least fifteen days previous to any special election, by posting or causing to be posted up, at each place of holding election in the county, a written or printed notice thereof; said notice to be as nearly as circumstances will admit as following: [Here follows a tentative form of notice.]'

Now, assuming for the present that such an election as is here drawn in question is a special election, in the sense that statutory notice thereof is necessary to its validity, we are met with what seems to us is a repeal of section 5157, Rem. Comp. Stat., above quoted, by the plain provisions of chapter 53, Laws of 1923, enacted that year, at least in so far as that act has reference to notices of elections in class A and first-class counties; King county being a class A county. That act, in so far as we need here notice its language, reads as follows:

'An act relating to elections, creating an election board, validating certain elections and proceedings had thereunder, amending sections 5143, 5144, 5147 and 5148 of Remington's Compiled Statutes, and declaring that this act shall take effect immediately.

'Section 1. That section 5143 of Remington's Compiled Statutes be amended to read as follows:

'Section 5143. All state and county elections in class A counties and counties of the first class, whether general or special, and whether for the election of federal, United States senatorial or congressional, or state, legislative county or precinct officers, or for the submission to the voters of any question for their adoption and approval or rejection, shall be held on the first Tuesday after the first Monday in November, in the year in which they may be called: Provided, That this section shall not be construed as fixing the time for holding the elections for the recall of county officers or primary elections, nor special elections to fill vacancies for members of the Congress of the United States or members of the state legislature. * * *

'Sec. 3. That section 5147 of Remington's Compiled Statutes be amended to read as follows:

'Section 5147. The chairman of the board of county commissioners, the county auditor, and the prosecuting attorney in class A counties and counties of the first class, shall constitute an election board for all elections held under the provisions of this act, and it shall be the duty of such board to provide places for holding elections; to appoint the precinct election officers; to provide for their compensation; to provide ballot boxes and ballots or voting machines, poll books and tally sheets, and deliver them to the precinct election officers at the polling places; to publish and post notices of calling such elections in the manner provided by this act and to apportion to each city, town or district, its share of the expense of such election. * * *

'Sec. 7. The election board shall give notice of all elections to be held under the provisions of this act, by one publication in a newspaper of general circulation in the

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