STATE v. WHITNEY, 12 Wash. 420; 41 P. 189 (1895).


No. 1739.

SUPREME COURT OF WASHINGTON
July 26, 1895, Decided
Appeal from Superior Court, Snohomish County.

Court: Judgment reversed and cause remanded with directions.

Syllabus: REMOVAL OF COUNTY SEAT--CANVASSING VOTE--ESTOPPEL.
Mandamus will not lie to compel the county canvassing board
to canvass the returns of an election upon a proposition for
the removal of a county seat, as the county commissioners
are by law charged with the duty of submitting such
proposition to vote and of ascertaining and declaring the
result.
The fact that the county canvassing board had assumed to act
in the matter and had nearly completed a canvass of the
votes upon the county seat question will not estop them from
denying their authority to proceed with the canvass.

Counsel: Crowley, Sullivan & Grosscup, and Brown & Brownell,
for appellants.
Sapp & Lysons, and S. H. Piles, for respondent.

Judge(s) ANDERS, J. HOYT, C. J., and SCOTT, DUNBAR and
GORDON, JJ., concur.

Opinion By: ANDERS
The opinion of the court was delivered by
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 defendant's demurrer.
The point is made by the appellants that under the law
they had no right or authority, as members of the county
canvassing board of election returns, to canvass the votes
cast upon the question of removing the county seat, and that
it was error on the part of the court to undertake to compel
them to do so. Their position is that the board of county
commissioners were alone charged with the duty of
ascertaining the result of the election upon the question of
removal, and we think it is well taken. Under the law
concerning the removal of county seats it is made the duty
of the board of county commissioners, upon the presentation
of a properly signed petition, to submit the question of
removal to the electors of the county at a generalelection
to be held therein, and to receive and compare the returns
and ascertain therefrom the result of the election, and, if
they find that three-fifths of the legal votes cast by those
voting on the proposition are in favor of a particular
place, to give notice thereof in all the election precincts
in the county. Gen. Stat., Title 38, Ch. 3.
At the time this law was enacted the county canvassing
board consisted of the county auditor and two other county
officers, one of whom was a judge of probate. Gen. Stat.,
417. On the taking effect of the constitution of the state,
the office of probate judge was abolished and it became
necessary to create a new board of county canvassers, which
was done by the act of March 10, 1893. Laws 1893, p. 271. By
virtue of that act, the county auditor, the chairman of the
board of county commissioners and the prosecuting attorney
now compose the county canvassing board of election returns
"for all special and general county and state elections in
such county." As the duties of this new board of canvassers
are not specifically pointed out in the statute, it would
seem that it was the intention of the legislature that it
should simply possess the powers and discharge the duties of
the board as formerly constituted.
The law authorizing the board of county commissioners to
ascertain the result of elections in reference to the
removal of county seats is not expressly repealed by this
late act creating the board of county canvassers, and we
fail to perceive any such conflict between the two acts that
both may not stand. Nor do we think that the members of the
county canvassing board were estopped from denying that they
had authority to proceed with the canvass of the vote on the
county seat question by the fact that they had assumed to
act in that matter. That they attempted, either ignorantly
or knowingly, to exercise a power not conferred upon them by
law, affords no reason why they should be compelled to
continue in wrongdoing.
The judgment is reversed and the cause remanded with
directions to dismiss this proceeding.
HOYT, C. J., and SCOTT, DUNBAR and GORDON, JJ., concur.