Vickers v. Schultz

• Decision Date: 04 August 1938
• Docket Number: 27141.
• Citation: 195 Wash. 651,81 P.2d 808
• Parties: VICKERS v. SCHULTZ et al., Commissioners of Public Utility District No. 2.
• Court: Washington Supreme Court

81 P.2d 808

195 Wash. 651

VICKERS v. SCHULTZ et al., Commissioners of Public Utility District No. 2.

No. 27141.

Supreme Court of Washington

August 4, 1938

Department 2.

Appeal from Superior Court, Pacific County; J. M. Phillips, Judge.

Action by Edison Vickers against R. W. Schultz and others, as Commissioners of Public Utility District No. 2, challenging the validity of the formation of the defendant district. From a decree sustaining the validity of the election, plaintiff appeals.

Affirmed.

John J Langenbach of Raymond, for appellant.

Houghton Cluck & Coughlin, of Seattle, and Herman E. Lafky, of Salem Or., (John C. Fisher, of Portland, Or., of counsel), for respondents.

MILLARD Justice.

Plaintiff a resident and taxpayer of Pacific county, by this action challenged the validity of the formation of Public Utility District No. 2 of Pacific county on the ground that the county auditor, as clerk of the election board, failed to post notices of the special election for formation of the district and election of three utility district commissioners in each polling place in the county as required by the statute.

The trial court found that on October 1, 1936 the county auditor posted one copy of the notice of the public utility district election on the bulletin board in the court house in South Bend, one copy on the bulletin board in the post office in South Bend, and one copy on one of the public streets in South Bend; and 'That from the time of the adoption of the resolution submitting the proposition of creating the district to the voters of Pacific County, and prior thereto, up to the time of the election on November 3, 1936, particularly during period of forty days immediately prior to said election, the questions of whether said public utility district should be created and which, if any, commissioners thereof should be elected, were discussed widely among the electors of Pacific County. During said time numberous public meetings were held throughout Pacific County under the auspices of Granges, labor unions and other groups, where the matter was generally and publicly discussed by the residents and voters of the county. During said time, the daily and weekly newspapers which circulated throughout the county among the residents and electors thereof, including the Raymond Herald, Raymond Advertiser, South Bend Journal, Willapa Harbor Pilot, Portland Oregonian and Portland Journal and Grange News, contained numerous and repeated references to the proposed creation of the public utility district and the election of the commissioners thereof. The county was circularized both for and against the proposition, and the fact that the election on said proposition and the election of commissioners would be held on November 3, 1936 was given more publicity, and more information concerning thereto was conveyed to the electors generally, for and against the measure, than a strict compliance with the statute would have afforded; the fact that the election aforesaid would be held on November 3, 1936, was a matter of general and actual knowledge among the voters in Pacific County.'

From the decree dismissing the complaint and sustaining the validity of the election plaintiff has appealed.

Counsel for appellant contends that there was not a substantial compliance with the statutory requirement respecting the posting of notices of the special election, hence the public utility district was not legally established.

The public utility district statute provides that the provisions of the general election laws shall apply in public utility district elections, except that the public utility district ballots shall be separate and cast in separate ballot boxes. Rem.Rev.Stat. §§ 11607, 11609. It is admitted that the proceedings leading up to the election upon the proposition of creating the district, and the election upon the proposition and the election of the district commissioners were in strict compliance with all provisions of the public utility district statute and of the general election laws, except the statutory requirements respecting posting notices of election.

'The election board shall give notice of all elections to be held under the provisions of this act, by one publication in a newspaper of general circulation in the county, not less than thirty (30) days nor more than forty (40) days Before the date of election, and by posting a copy of such notice at each polling place for such election not less than thirty (30) nor more than forty (40) days Before the date of election. Said notice shall contain the time and place of holding said election; the hours during which the polls shall be open; the offices to be filled and the proposition to be voted upon at such election, and such notice shall be the only notice required of all elections to be held under the provisions of this act.' Rem.Rev.Stat. § 5148-3.

'It shall be the duty of each county auditor to give at least thirty days' notice of any general election, and at least fifteen days previous to any special election, by posting or causing to be posted up, at each place of holding election in the county, a written or printed notice thereof; said notice to be as nearly as circumstances will admit as follows * * *.' Rem.Rev.Stat. § 5157.

The failure to post notices of the special election in each polling place in Pacific county, not less than thirty days nor more than forty days Before the date of the election, was not fatal to the formation of Public Utility District No. 2 in Pacific county.

In Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059, we held that where there has been a substantial compliance with the requirements of the law governing notice of elections, in the matter of voting municipal bonds, and there has been a fair election thereunder, the result cannot be defeated by technical irregularities, such as posting the notice only twenty-six days instead of thirty, and failure to publish the notice in the official paper on the day immediately preceding the election, when the ordinance required publication for the thirty days next preceding election. See, also, State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 P. 958, 58 Am.St.Rep. 39. In Rands v. Clarke County, 79 Wash. 152, 139 P. 1090, we held that the failure of the election board to post notice of a special county bond election did not render the election invalid and that the provision for notice was directory, not mandatory. We said (page 1093):

'The statute governing the giving of notice for special elections held under the provision of the act under which the commissioners proceeded provides that such notice must be given by publication in some newspaper having a general circulation in the county in which the election is proposed

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