State v. Superior Court of Cowlitz County

• Decision Date: 19 December 1922
• Docket Number: 17683.
• Citation: 211 P. 764,122 Wash. 555
• Court: Washington Supreme Court
• Parties: STATE ex rel. MAURER et al., Board of Com'rs of Cowlitz County, v. SUPERIOR COURT OF COWLITZ COUNTY.

211 P. 764

122 Wash. 555

STATE ex rel. MAURER et al., Board of Com'rs of Cowlitz County, v. SUPERIOR COURT OF COWLITZ COUNTY.

No. 17683.

Supreme Court of Washington, En Banc.

December 19, 1922

Original prohibition by the State of Washington on the relation of Albert Maurer and others, as the Board of County Commissioners of Cowlitz County, against the Superior Court of Cowlitz County. Writ will issue.

Fisk &amp McCarthy, Wm. Stuart, and Chas. D. McCarthy, all of Kelso for plaintiff.

A. H Imus, of Kalama, and Chas. A. Sheppard, of Portland, Or., for defendant.

PEMBERTON J.

On November 7, 1922, at the general election held in Cowlitz county the question of the removal of the county seat from the town of Kalama to the city of Kelso was voted upon by the electors of said county.

On the 10th day of November one I. N. Beighle filed a complaint in the superior court of said county wherein he alleged that a large number of persons voted at the election who were disqualified for the failure of having registered as provided by law, and that the registration officers in the city of Kelso were guilty of fraudulent and unlawful conduct; that on account of the irregularities, misconduct, and fraud practiced by the people of the city of Kelso on and prior to the 7th day of November 2,530 votes were cast in favor of removal of the county seat from the town of Kalama to the city of Kelso and that 1,574 votes so cast should not be counted as legal votes in favor of the removal of the county seat from the town of Kalama to the city of Kelso; that if the illegal and fraudulent votes herein mentioned had not been cast there would not have been 60 per cent. of the votes cast in said election on the subject of removal of the county seat cast in favor of the removal of said county seat. It is also alleged in the complaint:

'That Albert Maurer, P. A. Parker, and J. C. Ferguson as a board of county commissioners are about to sit as a canvassing board to canvass the returns of the election had as aforesaid and will, unless restrained by this court, count the illegal and fraudulent votes in favor of the removal of the county seat and declare the proposition of said county seat removal carried, and make an order establishing Kelso the legal county seat of Cowlitz county, Washington, and that said board of county commissioners, sitting as a board of canvassers as above mentioned is about to act and an emergency exists which requires the issuance of an emergency temporary restraining order without notice to the defendants.'

Upon the filing of the complaint, Homer Kirby, judge of the superior court of said county, issued a restraining order wherein Albert Maurer, P. C. Parker, and J. C. Ferguson as a board of county commissioners and as a canvassing board were restrained and enjoined from counting the votes cast in certain precincts including the precinct of the city of Kelso in favor of the removal of the county seat from Kalama to Kelso and the board of county commissioners was also restrained and enjoined from making any order relating to the removal of the county seat from the town of Kalama to the city of Kelso until after hearing had and until further order of the court.

The county commissioners have made application to this court for a writ of prohibition. The alternative writ was issued and the cause is now here for final determination.

There are two questions involved in this proceeding: First. Has the superior court under the Constitution and laws of this state jurisdiction to restrain the board of county commissioners from canvassing the votes cast upon the question of the removal of a county seat? Second. If the superior court is without jurisdiction should a writ of prohibition issue?

The question of the jurisdiction of the court to interfere with the action of the board of county commissioners in canvassing the returns or reviewing their determination in a county seat removal election has been before this court a number of times. In the case of Mann v. Wright, 81 Wash. 358, 142 P. 697, this court reviewed these decisions as follows:

'This court has had occasion to review at length all the questions presented by the record. Parmeter v. Bourne, 8 Wash. 45, 35 P. 586, 757; Rickey v. Williams, 8 Wash. 479, 36 P. 480; Krieschel v. Board of Com'rs, Snohomish County, 12 Wash. 428, 41 P. 186; Heffner v. Board of County Com'rs, Snohomish County, 16 Wash. 273, 47 P. 430. * * * It will appear from a reference to these cases that we have held the submission of a proposition to change a county seat to be a political or a public question; that, in the absence of a statute giving the courts jurisdiction of such matters, the courts will not interfere with the determination of the board of county commissioners where the order of submission is fair upon its face, except in cases of fraud or arbitrary action such as was present in the Rickey and Krieschel Cases.'

In the Rickey Case, 8 Wash. 479, 36 P. 480, the court held that the petition for such election showed upon its face that it did not have the number of signatures required by statute and the election held in pursuance thereof was necessarily invalid and that injunction was the proper remedy. The court, however, stated:

'The granting of the writ in this case did not involve an inquiry into any matter which rested in the discretion of the board, nor into any disputed question of fact.'

In the Krieschel Case, 12 Wash. 428, 41 P. 186, the county commissioners failed to canvass the returns and did not ascertain the number of legal votes cast, and it was held that----

'The result of the election not having been ascertained the pretended canvass and ascertainment by the board was not merely irregular, but absolutely void, and constituted no foundation or

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