State v. Superior Court of Whitman County

• Court: Washington Supreme Court
• Writing for the Court: CROW, J.
• Citation: State v. Superior Court of Whitman County, 94 P. 665, 49 Wash. 1 (Wash. 1908)
• Decision Date: 17 March 1908
• Parties: STATE ex rel. WALTER v. SUPERIOR COURT OF WHITMAN COUNTY.

94 P. 665

49 Wash. 1

STATE ex rel. WALTER v. SUPERIOR COURT OF WHITMAN COUNTY.

Supreme Court of Washington

March 17, 1908

Writ of review by the state, on the relation of George W. Walter against the superior court of Whitman county to review a judgment. Judgment affirmed.

Frank C. Owings and E. K. Hanna, for plaintiff.

CROW J.

On October 17, 1907, one E. S. Burgan, a qualified elector of the city of Pullman, applied to the superior court in and for Whitman county for a writ of mandamus to compel George W Walter, the city clerk, to register the plaintiff and other qualified electors; there being a dispute between them and the defendant as to the ordinance under which and the ward in which, they were entitled to registration. After issue joined, trial was commenced and evidence introduced on October 29, 1907. The cause was then adjourned to October 30, 1907, at which time additional evidence was admitted and arguments of counsel were made. On the morning of October 31, 1907, the trial judge prepared a written opinion, announcing his decision, and giving his reasons therefor. Copies of this opinion were forthwith delivered to the respective counsel and filed with the clerk. On November 1, 1907, the parties again appeared by their counsel, at which time findings of fact, conclusions of law, and a final judgment awarding a peremptory writ of mandamus were prepared, signed, and filed. The defendant interposed a motion for a new trial, which was denied. The annual municipal election was about to be held in the city of Pullman, and the city clerk, G. W. Walker, alleging he had no remedy by appeal, applied to this court for a writ of certiorari with an order of supersedeas to review the judgment of the superior court. The writ was granted, but without any supersedeas. On the final hearing and review we on November 11, 1907, concluded that the judgment of the superior court should be affirmed, but, in the absence of any supersedeas, delayed this opinion until it could be reached in the regular order of business. On the morning of October 30, 1907, the Governor of the state of Washington, under authority of section 4709, Ballinger's Ann. Codes & St issued the following proclamation:

'Whereas, a proclamation was issued October 29, 1907, by the Governor of Oregon declaring a legal holiday in said state extending through the week until Saturday, November 2, 1907; whereas, it is made to appear that the closing of the Oregon banks by virtue of said proclamation will cause injury and embarrassment to certain banking interests of the state of Washington transacting business with certain banks of Oregon:

'Now, therefore, in order to protect the interests of the banks of the state of Washington so affected, I, Albert E. Mead, Governor of the state of Washington, by virtue of the authority in me vested, do proclaim Wednesday and Thursday, October 30 and 31, 1907, legal holidays.

'In witness whereof, I have hereunto set my hand and caused the seal of the State to be affixed at Olympia, this Thirtieth day of October, A. D. Nineteen Hundred and Seven.

Albert E. Mead.

'By the Governor: Sam H. Nichols,

'[Seal.] Secretary of State.'

The relator contends that October 30th and 31st, thus declared to be holidays, were each dies non juridicus, on which no judicial business could be transacted; that the final judgment was based upon evidence admitted on such nonjudicial days; that the trial judge announced his decision on a legal holiday; and that the final judgment which was subsequently signed and entered was void. The record shows that the relator interposed no objection to hearing the cause on October 30th and 31st; that the question here presented was not raised in the trial court by motion for a new trial or otherwise, but that it was first presented in this court. The respondent's attorney insists that the days named in the Governor's proclamation did not become legal holidays except as to banking, financial, and commercial matters, that they were judicial days, and that the Governor was without authority to declare more than one holiday in a single proclamation. For the purposes of this opinion, we will disregard these contentions, and assume, without deciding, that both days mentioned in the proclamation were legal holidays in contemplation of sections 4709, 4712, Ballinger's Ann. Codes & St. (sections 5447, 5448, Pierce's Code). It is conceded that the trial was commenced on a judicial day, that the final judgment was prepared, signed, and entered on another judicial day, and that the other proceedings above mentioned occurred on the alleged holidays. It is shown that neither the trial judge nor the parties had actual knowledge of the Governor's proclamation prior to noon of October 31st; that no daily paper was published in Colfax, the county seat; that the court and parties first learned of the proclamation through Spokane papers; and that at no time during the trial was objection made to holding court or to any of the proceedings. Undoubtedly the trial judge would have continued the cause until November 1st had he known of the proclamation. The relator, however, contends that the court and parties were presumed to have been aware of the proclamation which took immediate effect when issued; citing Lapeyre v. United States, 17 Wall. (U. S.) 191, 21 L.Ed. 606; United States v. Norton, 97 U.S. 164, 24 L.Ed. 907; McElrath v. United States, 102 U.S. 426, 437, 26 L.Ed. 189.

The only question presented is whether the final judgment entered on a judicial day became void by reason of prior judicial proceedings conducted on the holidays, to which the relator at the time failed to object, or to which, in other words, he impliedly assented. There is much conflict of authority as to the validity of judicial proceedings conducted on holidays. The relator contends that the evidence admitted and the arguments made on the holidays were considered by the trial court in reaching the final judgment; that the hearing and consideration of such evidence and arguments were void judicial proceedings, which entered into the final judgment and avoided it also. In support of this position he cites with others, the following authorities upon which he bases his principal arguments: Davidson v. Munsey, 27 Utah, 87, 74 P. 431; Lampe v. Manning, 38 Wis. 673; State v. Green, 37 Mo. 466; Merchants' Nat. Bank v. Jaffray, 36 Neb. 218, 54 N.W. 258, 19 L. R. A. 316; Poor v. Beatty, 78 Me. 580, 7 A. 541; Hemmens v. Bentley, 32 Mich. 88; Ex parte Tice, 32 Or. 179, 49 P. 1038. We have carefully examined these and all other cases cited by the relator, and find that in no one of them, except Davidson v. Munsey, supra, was the final judgment or order, alleged to be void, entered or made upon a judicial day, as in this case. In Lampe v. Manning, supra, relator's leading case, the cause was tried and the judgment was entered on a legal holiday. In State v. Green, supra, the giving of instructions to the jury in a criminal case was commenced on Saturday night, but completed after midnight, thus running into Sunday. Objection thereto was urged in the lower court by motion for a new trial, and the Supreme Court of Missouri with much reluctance held that the final judgment of conviction was erroneous. In Merchants' Nat. Bank v. Jaffray, and Poor v. Beatty, supra, the orders claimed to be void were made and entered on holidays. In Hemmens v. Bentley, supra,...