State Ex Rel. Great N. R. Co. v. Herschberger, 117 Wash. 275,

      STATE EX REL. GREAT N. R. CO. v. HERSCHBERGER. 275
 Oct. 1921          Opinion Per FULLERTON, J.

      [No. 16330. Department One. October 6, 1921.]
     THE STATE OF WASHINGTON, On the Relation of Great
      Northern Railway Company, Appellant, v. F. R.
          HERSCHBERGER et al., Respondents. «1»

 276    STATE EX REL. GREAT N. R. CO. v. HERSCHBERGER.
                Opinion Per FULLERTON, J.      117 Wash.

petition be published, together with a notice of the
hearing, for at least two weeks preceding the hearing,
Ln the Molson Leader, a newspaper printed and published
in the county of Okanogan. An attempt was
made to comply with the order of the board, but the
petition as published, in describing the boundaries of
the proposed corporation, did not follow the petition,
but so described the boundaries as to exclude a considerable
part of the territory which the boundaries
as set forth in the petition included, even if the description
can be said to be otherwise intelligible. The
board of county commissioners found at the hearing,
notwithstanding this defect in the publication, the
proceedings to be in all respects regular, and submitted
the question of incorporation to the electors of the
proposed corporation, and thereafter, the election being
favorable, entered an order declaring the territory as
described in the original petition to be duly incorporated
as a town of the fourth class, under the name
and style of the town of Molson. The appellant now
before us thereupon applied to the superior court of
Okanogan county for a writ seeking a review of the
several orders of the board of county commissioners.
In its petition it set forth in substance the entire
proceedings had with relation to the incorporation. The
board, on its appearance in the proceeding, moved to
quash the writ on the ground that the application did
not state facts sufficient to constitute a cause of action,
or grounds sufficient to entitle the applicant to the
relief sought. The court sustained the motion, and
after the applicant had elected to stand on its petition,
entered a judgment of dismissal.

The single question presented here is whether the
failure of the published notice to correctly describe the
boundaries of the proposed corporation is fatal to the
proceedings. It is our conclusion that it is so. The

      STATE EX REL. GREAT N. R. CO. v. HERSCHBERGER. 277
 Oct. 1921          Opinion Per FULLERTON, J.

publication of the petition, together with notice of the
time of the hearing therein, is the jurisdictional
process by which the persons affected by the incorporation
are brought into the proceedings. The requirement
that such publication be made is the positive mandate
of the statute. The object of the requirement is to
give persons affected by the proposed corporation an
opportunity to appear and oppose or favor the incorporation
as they may deem their interests require,
and manifestly this right is denied them unless they
be given notice of the true boundaries of the proposed
corporation. No question with respect to the forming
of a municipal corporation is more important to the
property holder than the question of its boundaries.
It is conceivable that a property holder may have no
objection to the incorporation if it included only the
territory described in the notice given him, while he
would seriously oppose it if it included less or
different territory. To say, therefore, that a notice need not
describe the territory is not only to deny the mandate
of the statute, but it is to open the doors to opportunity
for fraud.

No principle of law is better settled than the principle
that notice must be given of the organization of
a municipal corporation in the form prescribed by
statute. Abbott, in his work on Municipal Corporations,
p. 34, uses this language:

"It is a fundamental rule of law that before action
or proceedings of any character can be legally taken
affecting the rights, either property or political, of an
individual, he must have notice of the pendency of
such proposed action or proceedings. This rule of
law applies to the present question. A proposed
municipal or quasi public corporation necessarily includes
the property of a large number of individuals.
The law gives them a right to be heard upon all
matters pertaining to or affecting their rights. The

 278    STATE EX REL. GREAT N. R. CO. v. HERSCHBERGER.
                Opinion Per FULLERTON, J.          117 Wash.

necessary petition preliminary to the organization of
a public corporation, under authority of law, must be
brought home either by actual or constructive notice
to the attention of all possessing rights within the
limits of the territory included."

So this court, in Territory ex rel. Kelly v. Stewart,
1 Wash. 98, 23 Pac. 405, said:

"There are few, if any, acts of state bearing upon
individuals more important than those which determine
their liability to be included in particular
municipalities; and the cases are rare in which they have
not been allowed an opportunity of being heard in
every step of the proceedings."

In State ex rel. Blum v. Port of Bayocean, 65 Ore.
506, 133 Pac. 85, the question was on the sufficiency of
an election notice held to determine whether a port
should be organized. The statute required the description
of the territory proposed to be included
therein to be published in the notice of the election. In
the description a call of a course was omitted, and the
question was whether this invalidated the proceedings.
The court said:

"We do not believe the notice of election sufficiently
describes the exterior boundaries of the proposed port.
The omission of one call from the description of the
boundary leaves a hiatus to be supplied by the imagination
of the person reading the notice. A defective
description of a boundary in a deed may be corrected
by a suit to have it reformed according to the true
intent of the parties, but a misdescription in an
election notice cannot be corrected nor reformed by any
sort of proceeding. It must be absolutely definite in
itself. This notice lacks that quality, and the
proceeding is void."

But the authorities need not be multiplied. They
are in substantial accord on the proposition that the
notice is jurisdictional and must be complied with if
the proceedings are to have validity.

                    HANAN v. WENATCHEE.                279
 Oct. 1921          Opinion Per FULLERTON, J.

The judgment is reversed, and the cause remanded
with instructions to reinstate the case and proceed in
accordance with the prayer of the petition.

PARKER, C.J., HOLCOMB, BRIDGES, and MACKINTOSH,
JJ., concur.