State v. Superior Court of Washington In and For Walla Walla County

• Decision Date: 24 March 1920
• Docket Number: 15644.
• Court: Washington Supreme Court
• Parties: STATE et rel. CATION et al. v. SUPERIOR COURT OF WASHINGTON IN AND FOR WALLA WALLA COUNTY et al.

188 P. 546

110 Wash. 506

STATE et rel. CATION et al. v. SUPERIOR COURT OF WASHINGTON IN AND FOR WALLA WALLA COUNTY et al.

No. 15644.

Supreme Court of Washington

March 24, 1920

Department 2.

Proceedings by the State of Washington, on the relation of A. M. Cation and others, against the Superior Court of State of Washington in and for Walla Walla County and another, to review on order of the Superior Court in an action to condemn lands for public highway. Order set aside, and condemnation proceedings dismissed as to plaintiffs.

Evans & Watson, of Walla Walla, for plaintiffs.

Earl W Benson and John C. Hurspool, both of Walla Walla, for defendants.

TOLMAN J.

The proceedings here under review occurred in an action brought by Walla Walla county against the several plaintiffs here to condemn certain lands for a public highway, pursuant to Rem. Code, § 5623, et seq. The petition in that action, as filed in the superior court, alleged in detail compliance by the board of county commissioners with the various provisions of the statute, and----

'that thereafter, on the 30th day of August, 1918, the county commissioners ordered that a hearing on said report of said engineer be heard on the 27th day of Setember, 1918, and that due notice of said hearing was duly served upon the defendants above named, they being the owners of the lands over which said proposed road runs more than 20 days prior to the date of such hearing.'

Plaintiffs here, defendants there, by answer denied the allegations as to the service, and upon a hearing in the superior court such service was sought to be proved by the introduction of the order of the board of county commissioners, made on September 27, 1918, which recited that due notice of the said hearing had been served more than 20 days prior thereto and further recited:

'* * * It appearing to the court that all persons interested in the establishment of said highway and whose lands are affected thereby have been duly served with notice of the hearing on the establishment of the said proposed road, and the following named persons having been served personally within Walla Walla county as appears from the sheriff's return on file herein on the 3d day of September, 1918, to wit: Frances Lyons, John R. Lyons, Mary H. Dunphy, Grace I. Lyons, and John R. Lyons, Joseph W Lyons, and Grace, I. Lyons as trustees. The following named persons as appears from the return of service of the sheriff of Walla Walla county on file herein were duly and personally served in Walla Walla county on the 4th day of September 1918: A. M. Cation and Nannie E. Cation--and each and all of said persons having been served with a true and correct copy of the original notice of hearing upon the establishment of said road, and it appearing that Frances T. Garrecht and Theresa J. Dailey are and each of them is a nonresident of Walla Walla county and cannot be found therein, that a true and literal and correct copy of the notice of hearing on the establishment of such road was posted upon the lands belonging to said Frances T. Garrecht, another true and correct copy of said notice was posted on the lands of the said Theresa J. Dailey in each case at or near the place where the said proposed highway would intersect the land of the said Dailey and of the said Garrecht, and another true and correct copy of the notice of hearing on the establishment of said road having been posted at the county courthouse in the city and county of Walla Walla, said posting having been made in all respects in compliance with law upon 6th day of September, 1918, and that more than 20 days has elapsed since the day and date of said service in each case, and no persons whatsoever appearing before this board in opposition to the opening of said road, and the board, being satisfied that said road is a public necessity, now declares the same to be a public necessity.'

In addition, the various returns referred to in the order were introduced over the objection that they were not by affidavit, and were therfore insufficient under the statute, and it was then conceded that these were the only written records of service shown by the proceedings before the board of county commissioners. Thus there is presented the single, but by no means simple, question of whether or not the board of county commissioners had jurisdiction to make the order of September 27, 1918, establishing the said road and directing the prosecuting attorney to proceed by condemnation to procure the right of way; for, if the board had no jurisdiction to make the order directing the condemning of plaintiffs' lands, then the superior court had no jurisdiction to entertain the condemnation proceedings. State ex rel. Davies v. Superior Court, 102 Wash. 395, 173 P. 189. The statute under which the board proceeded provides:

'On the day fixed for said hearing or to which such hearing may be postponed or adjourned, the said board, upon due proof to the satisfaction of the board, made by affidavit, of the service or posting of notice of the hearing, as by this chapter required, shall proceed to the hearing of said report. * * * ' Rem. Code, § 5634.

It clearly appears that the proofs of service of notice here, aside from the recitals in the order, were not made by affidavit, each being in form such a return as is usually made on a summons when served by a deputy sheriff, and therefore, if we are to hold that the board had jurisdiction, it must be by reason of the recitals that due notice had been given, and the persons interested had been duly served.

That the recital of due service in the judgment of a court of general jurisdiction is sufficient as against collateral attack we have held. State ex rel. Boyle v. Superior Court, 19 Wash. 128, 52 P. 1013, 67 Am. St. Rep. 724; Merz v. Mehner, 57 Wash. 324, 106 P. 1118. But while the board acts judicially in a matter of this kind, its jurisdiction is special and limited by the statute which confers the power. It is contended that in State ex rel. Pagett v. Superior Court, 47 Wash. 11, 91 P. 241, we have applied the same rule to a board of county commissioners acting in a matter similar to the one we are now...