State v. Whitney

• Citation: 12 Wash. 420,41 P. 189
• Parties: STATE EX REL. SWERDFIGER v. WHITNEY ET AL.
• Decision Date: 26 July 1895
• Court: Washington Supreme Court

41 P. 189

12 Wash. 420

STATE EX REL. SWERDFIGER v. WHITNEY ET AL.

Supreme Court of Washington

July 26, 1895

Appeal from superior court. Snohomish county; James G. McClinton Judge.

Application on relation of D. S. Swerdfiger against L. C. Whitney prosecuting attorney, and others, for writ of mandamus to compel defendants to canvass election returns for change of a county seat. From a judgment for issuance of the writ defendants appeal. Reversed.

Crowley, Sullivan & Grosscup and Brown & Brownell for appellants.

Sapp & Lysons and S. H. Piles, for respondent.

ANDERS J.

The respondent and the appellants constituted the county canvassing board of election returns in and for Snohomish county, for the general election held therein on November 6, 1894. At that election there was submitted, among others, the question whether the county seat of Snohomish county should be removed from the city of Snohomish to the city of Everett. The board met and proceeded to canvass the returns from the various election precincts of the county, including those upon the proposition to remove the county seat. After canvassing the returns upon that proposition from all the precincts, except five, the appellants, who were a majority of the board, refused to canvass or consider the returns from South Snohomish, whereupon the respondent sued out an alternative writ of mandate to compel them to count the votes returned from that precinct, or to show cause why they had not done so. The defendants interposed a demurrer to the writ, on the grounds (1) that the plaintiff had no capacity to sue; (2) that the alternative writ did not state facts sufficient to constitute a cause of action; and (3) that there was a defect of parties defendant. The demurrer was overruled, and the defendants excepted. An answer was then filed, setting up several affirmative defenses, to which the plaintiff duly replied. A trial was had upon the issues raised by the pleadings, and, after the introduction of the evidence, the court made and filed its findings of fact and conclusions of law, upon which a peremptory writ of mandate was issued, commanding the defendants to canvass and count the votes of the precinct of South Snohomish, as they appeared upon the face of the official returns. When the cause came on for hearing in this court, it appeared that no exceptions had been taken to the findings of fact or conclusions of law made by the court below, and thereupon the court refused to consider any of the facts upon which such findings were based. In the present posture of the case, therefore, there is but one question which it is necessary to determine, and that is whether the court erred in overruling the defendants' demurrer.

The point is made by the appellants that, under the law, ...