State v. Virnig

• Decision Date: 23 January 1914
• Citation: 137 P. 1039,77 Wash. 502
• Court: Washington Supreme Court
• Parties: STATE ex rel. SIELER v. VIRNIG et al., Board of Com'rs of Grant County.

137 P. 1039

77 Wash. 502

STATE ex rel. SIELER v. VIRNIG et al., Board of Com'rs of Grant County.

Supreme Court of Washington

January 23, 1914

Department 2. Appeal from Superior Court, Grant County.

Action by the State of Washington, on the relation of Henry Sieler to prohibit William H. Virning and others, constituting the Board of County Commissioners of Grant County, from reconsidering their action prohibiting live stock from running at large. From a judgment denying the writ, relator appeals. Affirmed.

Wm. M Clapp, of Ephrata, and Herbert H. Sieler, of Spokane, for appellant.

C. G Jeffers, of Ephrata, for respondents.

MORRIS J.

This action was brought under Laws 1911, c. 25, authorizing boards of county commissioners to create districts in which live stock shall not run at large. The case was submitted to the court below and here upon an agreed statement of facts, from which it appears that the relator and others, seeking to take advantage of the act, filed a petition with the board of county commissioners of Grant county, seeking to have certain territory described in the petition set aside as a district. Due notice of the filing of this petition and of the time fixed for hearing was given, and on December 2, 1912, the matter came on to be heard. At this meeting of the board two members only were present. Section 3867, Rem. &amp Bal. Code, however, provides that two shall constitute a quorum for the transaction of business. The statement recites: 'And the said board, after hearing the said petition on the merits and fully considering the same and there being no opposition to the said petition or any part thereof, granted the petition as prayed for and ordered that live stock of all kinds be prohibited from running at large within the territory named in said petition, and notice given accordingly, as required by law, and the said order was entered in accordance with the practice of the said board.' On December 3d the third member of the board appeared and presented a remonstrance against granting the petition, and the board, after considering the remonstrance, made an order to the effect that the board would reconsider its action on the petition, and fixed January 7, 1913, as the time for a rehearing. Notice of this rehearing was given relator in the form of a letter from the county auditor. The statement then recites that no other notice of the hearing was contemplated, and that, at the hearing on January 7th, the board intended to proceed 'with the reconsideration of the said petition and to refuse to grant the petition.' Relator then sued out this writ, in which he sought a decree holding the action of December 3d to be illegal, prohibiting the board from any reconsideration of its action of December 2d, and requiring publication of an order prohibiting live stock from running at large within the territory described in the petition and order of December 2d. This writ was denied, and he appeals.

The appeal presents this question: Did the board of county commissioners have the power to reconsider their action of December 2d? The act of 1911, in so far as here applicable, provides:

'Section 1. That the board of county commissioners of any county of this state shall have the power to designate by an order made and published, as provided in section three of this act, certain territory within such county in which it shall be unlawful to permit live stock of any kind to run at large. * * *'

'Sec. 3. If the board of county commissioners shall determine to prohibit the running at large

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