Stimson Timber Co. v. Mason County

• Decision Date: 05 July 1917
• Docket Number: 13864.
• Citation: 97 Wash. 205,166 P. 251
• Parties: STIMSON TIMBER CO. v. MASON COUNTY.
• Court: Washington Supreme Court

166 P. 251

97 Wash. 205

STIMSON TIMBER CO. v. MASON COUNTY.

No. 13864.

Supreme Court of Washington

July 5, 1917

Department 2. Appeal from Superior Court, Mason County; John R Mitchell, Judge.

Action by the Stimson Timber Company against Mason County. Judgment for plaintiff, and defendant appeals. Affirmed.

R. A Lathrop and A. C. Bayley, both of Shelton, for appellant.

Ballinger & Hutson, of Seattle, for respondent.

MOUNT J.

This action was brought to recover a tax alleged to be void, paid under protest. The appellant filed a demurrer to the complaint, upon the grounds: First, that the court had no jurisdiction of the subject-matter; second, that the plaintiff had no legal capacity to sue; third, that there was a defect of parties defendant; fourth, that the complaint does not state a cause of action; fifth, the action was not commenced within the time limited by law. The demurrer was overruled, and the defendant answered, admitting the material allegations of the complaint, and the court entered a judgment upon the pleadings. This appeal is from that judgment.

The complaint alleged in substance: That the plaintiff owned certain real estate in Mason county. That the taxes for the year 1915, assessed against the plaintiff's property included a special four-mill tax, levied for school district No. 45 of Mason county, for the purpose of constructing a schoolhouse. That, when the taxes became due, the plaintiff offered to pay all the taxes, except the four-mill levy which offer was refused, and thereupon the plaintiff paid the whole tax, and protested against the payment of the four-mill tax levied for the purpose above stated. That it was necessary to pay the taxes, in order that the plaintiff might utilize its property. The complaint alleged: That the four-mill tax levied for the school district was void, because the board of directors of the school district were not authorized to build the schoolhouse for which the tax was levied. That on the 17th day of June, 1915, the board of directors of the district passed a resolution as follows:

'Resolved, that the school board issue $1,500 in bonds for the purpose of building a new schoolhouse upon the present site, these bonds to be $100 each, payable in five years. The school board reserve the right, however, to pay or redeem said bonds, or any part of them, at any time after one year from date of bond.'

And that on the same day the board of directors passed another resolution as follows:

'Resolved, that an election shall be called on the 30th day of June, 1915, for the purpose of voting $1,500 bonds to build a new schoolhouse on the present site; said bonds to be for $100 each, payable in five years. The school board reserve the right, however, to pay or redeem said bonds, or any part of them, at any time after one year of the date of bonds.'

The complaint then alleged that a notice of an election for the 30th day of June, 1915, was given; that the notice stated, 'The polls will be open from 2 o'clock p. m. to 5 o'clock p. m.,' and that said polls were actually open at such hours only; that at said election, at said time, 29 persons voted for the issuance of the bonds, and 15 persons voted against the issuance thereof; that thereafter, on August 2, 1915, the board of directors let a contract in the sum of $1,212 for the building of a schoolhouse, which was afterwards constructed; that no bonds were ever issued by the district; that on the 6th day of August, 1915, the board of directors reported to the county commissioners their annual estimate, including a four-mill tax for the erection of said building, and thereafter the county commissioners levied for collection a special tax of four mills.

It is argued by the respondent that the bond issue was void for two reasons: First, because the polls at the bond election were not open until 2 o'clock, instead of at 1 o'clock, as provided by statute; and, second, because the directors of the district were not authorized to build a schoolhouse, and, if the vote for the school bonds be deemed an implied authority for the building of the schoolhouse, it was conditional upon the issuance of the bonds, and, the plans not having been pursued, the authority ceased. The court sustained these contentions of the respondent. The appellant contends here that the notice, stating that the polls would be open from 2 o'clock p. m. until 4 o'clock p. m., was an irregularity merely, and that the result of the election was implied authority for the board of directors to construct the building. This presents the principal questions in the case.

The statute, at section 4658, Rem. Code, provides, in regard to the notice, that:

'Unless otherwise designated in the notice of election, the polls shall be open at 1 o'clock in the afternoon and close at 8 o'clock in the afternoon, but the board of directors may, in districts of the second or third class, previous to giving notice of election, determine on an hour before 8 o'clock for closing, but they must not be closed earlier than 4 o'clock in the afternoon. In no case shall the

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