Rands v. Clarke County, 79 Wash. 152, 139 Pac. 1090 (1914).


           [No. 11903. En Banc. April 35, 1914.]
      E. M. RANDS, Appellant, v. CLARKE COUNTY et al.,
                         Respondents. 1

CONSTITUTIONAL LAW - LOAN OF CREDIT - COUNTY AID TO MUNICIPAL.
The issuance of county bonds for part of the cost of
an interstate bridge, to be built jointly with a county in the
adjoining state, is not a giving or loaning of money or credit
in aid of "any individual, association, company or corporation"
in violation of Const, art. 8, SS 7; since the provision does
not apply or a county or a corporation whose functions are
wholly public.

SAME - LOAN OF CREDIT - JOINT CONSTRUCTION OF INTERSTATE
BRIDGE. The issuance of county bonds for part of the cost of an


1 Reported in 139 Pac. 1090.

                RANDS v. CLARKE COUNTY.               153
 Apr. 1914          Opinion Per FULLERTON, J.

interstate bridge, to be built jointly with a county in the
adjoining state, which was to supply the balance of the cost,
is not a giving or loaning of money or credit, in violation of
Const., art. 8, SS 7; since the county retains an interest
in the bridge and no more aids the foreign county than it
receives aid therefrom.

COUNTIES - BONDS - SUBMISSION TO ELECTORS - NOTICE OF ELECTION
- SUFFICIENCY. Requirements for notice of a special county bond
election are directory only, where the statute does not provide
that the election shall be void if not strictly followed; and
the publication of notice of election for only 25 or 26 days,
where the act requires publication for four weeks next
preceding the date of election does not invalidate the
election, where the subject was widely discussed, numerous
public meetings were held and the matter given great notoriety,
and the voters fully informed. and a heavy vote cast,
and the result could not have been different if legal notice
had been given.

SAME - BONDS - SUBMISSION TO ELECTORS - BALLOTS. A special
county bond election is not invalidated by printing on the ballot
explanatory matter in addition to the matter required by statute.

SAME - BONDS - RATE OF INTEREST. A statute authorizing the
issuance of county bonds bearing interest at a rate not exceeding
six per cent per annum, payable semiannually, is sufficiently
complied with by the issuance of bonds bearing interest at the
rate of six per cent payable annually.

BRIDGES - CONSTRUCTION - AUTHORITY TO MAKE CONTRACT. The
provisions of Rem. & Bal. Code, SS 5686-1 et seq., which
gives the state the management and control, through its
highway board of the construction of interstate bridges,
where the state itself joins in the construction of the
bridge, are not intended to apply to an interstate bridge
constructed by a county of this state jointly with a
county of an adjoining state.

Appeal from a judgment of the superior court for Clarke
county, Back, J., entered March 7, 1913, upon findings in
favor of the defendants, dismissing an action for equitable
relief. Affirmed.

Donald McMaster, for appellant.

Bates & Burnett and Miller, Crass & Wilkinson for
respondent.

FULLERTON

FULLERTON, J. - The legislature of the state of
Washington, at the biennial session of 1913, passed an act (Laws

 154    RANDS v. CLARKE COUNTY.
                Opinion Per FULLERTON, J.          79 Wash.

1913, p. 168; 3 Hem. & Bal. Code, SS 5686-1), empowering
the state of Washington, or any county, city or town therein,
"to jointly or separately join with any adjoining state,
county, city or town in the purchase, construction, control,
operation and maintenance of any bridge or bridges over and
across any river, stream or body of water being within or
constituting the boundary line of the state or any county
Therein." Section 6 (Id., SS 5686-6) of the act provided
that, whenever the board of county commissioners of any
county shall deem it for the interest of such county to
engage in or aid in the construction of a bridge under the
visions of the act, and to incur an indebtedness to meet the
cost thereof and the expenses connected therewith and issue
bonds of the county for the payment of such indebtedness,
such county is authorized and empowered, by and through
its board of county commissioners, to engage in or aid in
such work, and to incur an indebtedness for such purpose to
an amount which, together with the then existing indebtedness
of such county, shall not exceed five per centum of the
taxable value of the taxable property of such county, as shown
by the last preceding assessment roll thereof for state and
county purposes, and to issue negotiable bonds of the county
for such indebtedness; provided that the commissioners shall
have first submitted the question of incurring such
indebtedness to the voters of the county, at a general or special
election, and three-fifths of the voters voting upon the
question shall have voted in favor of incurring the same. Section
11 of the act reads as follows:

"That whenever it is deemed advisable by the common
council of any city or town and the county commissioners of
any county in this state to purchase or construct a bridge
within or partly within such city or town, the council and
commissioners are authorized and empowered to enter into
an agreement for the construction of such bridge, upon such
terms as may be mutually agreed upon, each contributing
such sum towards the purchase or construction of the same
as may be determined to be just and proper, and enter into

                RANDS v. CLARKE COUNTY.                155
 Apr. 1914          Opinion Per FULLERTON, J.

contract for the construction of such bridge anal to spend
public funds thereon, and if deemed necessary may bond the
county or city or town in the manner herein specified. The
contracts for letting the same and notice given to bidders,
and all other matters pertaining to the construction shall
be governed by the laws in force governing the construction
of bridges by county commissioners in the state of
Washington, provided the payments to be made on the contract by
the respective municipal corporations be made direct to the
contractor." (3 Rem. & Bal. Code, SS 5686-11.)

The laws in force governing the construction of bridges
by county commissioners referred to in the section quoted,
in so far as they are pertinent to the inquiry, empower such
board to enter into contracts for the construction of such
bridges in behalf of the county, and to superintend and
control the construction thereof, as if the matter were the
business solely of the county disconnected entirely from state
business.

Acting in pursuance of the powers granted in the statute
cited, the board of county commissioners of Clarke county,
Washington, on July 9, 1913, adopted a resolution in which
it was recited that the board deemed it for the interests of
Clarke county that it, together with the city of Vancouver,
join with the county of Multnomah, in the state of Oregon, in
the construction of an interstate toll bridge across the
Columbia river, which formed the boundary line between the
two counties, and that Clarke county should incur a bonded
indebtedness in the sum of $500,000 to meet the cost thereof
and the expenses connected therewith. The board thereupon
ordered that the question whether or not such indebtedness
should be incurred be submitted to voters of the county at
a special election called for August 12, 1913, and directed
that the notice thereof be given in the manner required by
low. Notice was given and an election held on the day
named in the resolution, at which more than three-fifths of the
legal voters voting thereat favored the incurring of the
indebtedness for the purposes expressed in the resolution.

 156    RANDS v. CLARKE COUNTY.
                Opinion Per FULLERTON, J.           79 Wash.

Thereafter the board of county commissioners entered into
negotiations with the proper officers of the county of
Multnomah, in the state of Oregon, and reached a tentative
agreement for the construction of a bridge across the Columbia
river, extending southerly from a point in the southern
boundary of the city of Vancouver to a point on the Oregon
shore; such bridge to cost approximately $1,250,000, of
which sum Clarke county is to contribute $500,000, and
Multnomah the balance of the total cost. Before any such
bonds were issued, however, and before any contract for the
construction of the bridge was entered into, the present
action was begun by the appellant, who is a resident and
taxpayer of Clarke county, to enjoin the board from issuing
the bonds, and from entering into any contract for the
construction of the bridge. The complaint is based on the
contentions that the proposed bond issue is illegal because
proposed to be issued for a purpose prohibited by the
constitution, and because of defects and irregularities in the
proceedings leading up to the issuance; and that the board of
county commissioners are without power to enter into a
contract for the construction of the bridge because the act
of the legislature under which they are proceeding vests such
power solely in the state highway board, even where the
county of itself, without the aid of the state, creates the fund
necessary for the construction of the bridge. At the trial
the lower court ruled against the contentions of the
complainant, and entered a judgment to the effect that he take
nothing by his action. This appeal followed.

Article 8, SS 7, of the state constitution, provides:

"No county, city, town, or other municipal corporation
shall hereafter give any money or property, or loan its money
or credit, to or in aid of any individual, association,
company, or corporation, except for the necessary support of
the poor and infirm, or become directly or indirectly the
owner of any stock in or bonds of any association, company, or
corporation."

                RANDS v. CLARKE COUNTY.               157
 Apr. 1914          Opinion Per FULLERTON, J.

It is argued by the appellant that, since the bridge is to
be built in conjunction with the county of Multnomah, in the
state of Oregon, that municipal corporation will be aided by
the money applied by Clarke county to the construction of
the bridge, and the proposed act of the county commissioners
is thus within the prohibition of the constitution quoted.
But it will be noticed that the prohibition is against the
giving or loaning of money to or in aid of any individual,
association, company or corporation, and it is clear that, unless
the word, "corporation" can be held to include a county in
a foreign state, the county of Multnomah is not included
within the prohibition. We think the word cannot be held
to have this meaning. Plainly by the terms which precede
it, the framers had in mind individuals, associations,
companies and corporations engaged in purely private
enterprises, or enterprises only quasi public, not to enterprises
carried on by the corporations whose functions are wholly
public, such as the Federal or state government, or some
branch thereof. This we determined in Lancey v. King
County,
15 Wash. 9, 45 Pac. 645, 34 L. R. A. 817, where
we held that King county could appropriate money in the aid
of a ship canal proposed to be constructed in that county;
in State ex rel. School Dist. No. 24 v. Grimes,
7 Wash. 270, 34 Pac. 886, where we held that this
provision of the constitution did not prohibit the state
from investing the irreducible school fund in bonds of
school districts; and perhaps in Paine v. Port of Seattle,
70 Wash. 294, 126 Pac. 628, 127 Pac. 580, where
we held that the public nature of an improvement was
not destroyed because it was the purpose to let to private
individuals for a limited time a part of the improvements when
constructed.

The appellant cites, as holding contrary to the principle
here announced, the case of State ex rel. Potter v. King
County, 45 Wash. 519, 88 Pac. 935. The syllabus of that
case does support the contention, but it will be observed from
an examination of the opinion itself that the syllabus does not

 158    RANDS v. CLARKE COUNTY.
                Opinion Per FULLERTON, J.          79 Wash.

accurately reflect the decision. The court did not there rest
its decision, as the syllabus recites, on the principle that the
county of King was forbidden by the section of the
constitution in question from issuing negotiable bonds to aid the
United States in building a ship canal in that county, but
held that it could not do so in the absence of a specific grant
of power from the legislature authorizing it to do so, and
that there was then in the statutes no such special grant.
This is made clear from the whole tenor of the opinion, and
particularly from the following language used therein:

"If the argument of the respondents is sound, the several
hoards of the county commissioners in this state have now
all the power that the legislature can constitutionally
confer upon them in the matter of determining the objects and
purposes for which public money may be expended. With
such a contention we cannot agree. The most favorable view
that can be taken of the bonds in question, from the
standpoint of the respondents, is that they are bonds in aid of
the Federal government, for if they are not, they are
manifestly in aid of a private individual and utterly void. If in
aid of the Federal government, they may be free from
constitutional objection, under the decision in the Lancey case,
but they are none the less aid bonds, and, as such, are
extraneous to the general objects and purposes for which county
governments are created. If any question can be settled by
a long line of judicial decisions, State and Federal, it is the
proposition that power to issue bonds in aid of internal
improvements cannot be inferred or implied from any
general grant of power to counties or other municipalities."

But we think the rule may rest on narrower grounds. The
county of Clarke is not proposing to issue bonds in aid of the
construction of a bridge by the county of Multnomah. Its
purpose is to join with that county in the construction of a
bridge, and it will retain an interest therein proportionate to
the amount of money it contributes therefor. It is thus no
more aiding Multnomah county in the construction of the
bridge than Multnomah county is aiding it, and this clearly
cannot be said to be giving its money "to or in aid of any

                RANDS v. CLARKE COUNTY.                159
 Apr. 1914          Opinion Per FULLERTON, J.

individual, association, company, or corporation," such as
is contemplated by this section of the constitution.

The statute governing the giving of notice for special
elections, held under the provision of the act under which
the commissioners proceeded, provides thai such notice must
be given by publication in some newspaper having a general
circulation in the county in which the election is proposed
to be held "for a period of at least four (4) weeks next
preceding the date of the election." In this instance the notice
was directed to be given in two newspapers having a general
circulation in Clarke county. In one, the first publication of
the notice was made on July 18, 1913, while in the other
it was made on July 18, 1913, in each of which the notice
was published weekly in four successive issues of the paper
Since the election was held on August 12, 1913, it will be
observed that the first publication was made only twenty-six
days prior to the election, and in the other only twenty-five
days prior thereto. This, it is claimed, renders the election
and all subsequent acts founded thereon invalid. This court,
however, early held that requirements of a statute providing
for the giving of notices of an election, either general or
special, were directory rather than mandatory, unless the
statute itself declares that the election shall be void if the
statutory requirements are not strictly observed, or the
court can see from the record that the result of the election
might have been different had there been a strict compliance
with the statutory requirements. Seymour v. Tacoma,
6 Wash. 427, 33 Pac. 1059; Richards v. Klickitat County,
13 Wash. 509, 48 Pac. 647; State ex rel. Mullen v. Doherty,
16 Wash. 382, 47 Pac. 958, 58 Am. St. 39; Hesseltine v. Wilbur,
29 Wash. 407, 69 Pac. 1094; Murphy v. Spokane,
64 Wash. 681, 117 Pac. 476; Hill v. Howell,
70 Wash. 608, 127 Pac. 211. In State ex rel. Mullen v.
Doherty, Judge Gordon, delivering the opinion of the count,
used this language:

"The rule established by an almost unbroken current of
authority is that the particular form and manner pointed out

 160    RANDS v. CLARKE COUNTY.
                Opinion Per FULLERTON, J.          79 Wash.

by the statute for giving notice is not essential, and where
the great body of the electors have actual notice of the thee
and place of holding the election, and of the questions
submitted, this is sufficient. The vital and essential question in
all cases is whether the want of the statutory notice has
resulted in depriving sufficient of the electors of the
opportunity to exercise their franchise to change the result
of the election."

In this instance, it is conceded that there is no statutory
provision declaring the election void if the statutory notice
be not given; nor are we able to discover from the record
that the result of the election might have been different had
notice thereof been given in the strictest compliance with the
statute. On the contrary, it appears that the object and
purpose of the election, as well as the time and places at
which the election was to be held, were given the widest
publicity. The court found:

"That for several months next preceding the date of said
special bond election of August 12, 1913, and the date of
the meeting of the board of county commissioners on the
9th day of July, 1913, the question of whether the county
should be bonded in the sum of $500,000 for the purpose of
joining and aiding in the construction of an interstate hedge
at Vancouver, Washington, over the Columbia river at that
point was widely discussed by the people of southwestern
Washington, and especially the doctors and citizens of
Clarke county, Washington, and during said time and
immediately preceding the meeting of the board of July 9,
1913, and between that date and the date of the special
election of August 12, 1913, numerous meetings were held
throughout Clarke county, where the matter was generally
and publicly discussed by the residents and voters of the
county, and that prior to the meeting of the board on July 9,
1913, to wit: on the 27th day of April, 1913, a public
meeting was held in the superior court room of the court house
at Vancouver, Washington, to which the people and electors
from all portions of the county were invited to attend for the
purpose of discussing the question of whether the county
should join in the construction of such bridge and incur an
indebtedness necessary to construct the bridge; that at said

                RANDS v. CLARKE COUNTY.                161
 Apr. 1914          Opinion Per FULLERTON, J.

meeting hundreds of voters were present from the various
portions of the county and the matter was widely advertised
and discussed; that a resolution was passed at said meeting
favoring the construction of the bridge and the incurring of
the indebtedness; that the resolution of said meeting was
published in the newspapers throughout the county and
generally circulated among the electors of the county. That
for months previous to said July 9, 1913, and next
preceding the date of the election of August 12, 1913, the daily
and weekly papers which circulate through the county and among
the residents and electors of the county, contained numerous
and repeated references to the proposed construction of the
bridge and the bonding of the county, and the widest
publicity and notoriety was given to the proposed construction
and proposed bond issue; that on the 9th day of July, 1913,
the date of the meeting of the board of county commissioners,
the Daily Vancouver Columbian, a daily paper published in
said county and circulated among the electors of said county,
contained an account of the meeting of the board of commissioners
and was published in large letters on the front page of
the paper the announcement that the special bond election for
the purpose of the construction of the bridge at Vancouver,
Washington, would be held on the 12th day of August, 1913:
and the Weekly Vancouver Columbian of the issue of July 10,
1913, and the weekly Clarke County Sun, published on
Friday, the 11th day of July, 1913, and the Portland daily
papers which circulate extensively throughout Clarke county,
contained extended reference to the bridge matter and the
voting of the bonds, and thereafter these papers contained
almost daily and repeated reference to the proposed bond
election and the construction of the bridge, and all of the
papers mentioned were circulated extensively throughout
the county and among the residents and electors of the
county, and for weeks and months next preceding the date of the
special election of August 12, 1913, meetings were held in the
several precincts throughout the county where numerous
electors and citizens were present and the proposed bond
issue was thoroughly and fully discussed, and the proposed
bond issue and construction of the bridge was discussed by
the people generally in their home, from the platform, and
the electors were fully informed of the said special bond
election and the purposes and objects of the election and the

 162    RANDS v. CLARKE COUNTY.
                Opinion Per FULLERTON, J.          79 Wash.

proposed bond issue was a matter of public notoriety throughout
the county, and the great body of electors of the country
had actual notice of the time and place of holding the
election that the electors of the county generally participated
in the election; that there was a total vote east at said
special election of 6197, of which 5393 were in favor of the
issue and 804 against it; that the total vote of the county as
ascertained at the last general election in November, 1912,
for the election of county and state officers and presidential
electors was 8359."

Under these circumstances, it cannot be said, with any
show of reason, that any elector of Clarke county was denied
the privilege of voting at the election for want of sufficient
notice, or that the result of the election would have been
different had the official notice of the election been published
two or three days earlier than it was actually published. We
conclude, therefore, that there is no cause for holding the
election invalid on the ground here suggested.

The ballot used at the election contained explanatory
matter in addition to the matters required by the
statute. It is suggested that this is fatal to the
election, but we met and determined the question,
contrary to the suggestion, in the case of Paine v.
Port of Seattle,
70 Wash. 294, 126 Pac. 628, 127 Pac. 580.
As we are satisfied with the rule there announced, we
do not feel called upon to discuss the matter further.

The resolution calling for the bond election, passed by the
board of county commissioners, and the notices given of such
election, described the bonds proposed to be issued as bonds
bearing interest at the rate of six per cent per annum,
payable annually. The statute authorizing the issuance of such
bonds provides that they shall "bear interest at a rate not
exceeding six per cent per annum, payable semi-annually."
Manifestly, it was the legislative intent, by this provision of
the statute, to limit the rate of interest for which bonds
could be lawfully issued, not to fix a hard and fast rule as
to the character of bonds that could be issued. Bonds which

                RANDS v. CLARKE COUNTY.                163
 Apr. 1914          Opinion Per FULLERTON, J.

do not exceed the statutory rate of interest are therefore
lawful, notwithstanding the interest thereon may be made
payable annually instead of semi-annually. Borner v. Prescott,
150 Wis. 197, 156 N. W. 552.

Lastly, it is argued that the commissioners are without
power in themselves to enter into a contract for the
construction of the bridge; that this power is vested by the
statute in the state highway board and state highway
commissioner, notwithstanding the bridge is constructed for a
county purpose, and the county is furnishing the means for its
construction.

The particular provisions of the statute under which the
county commissioners are proceeding we have hereinbefore
epitomized. Standing alone, they justify the procedure
adopted by the county. The act, however, contains many
sections seemingly contradictory of those set forth, which the
appellant cites and relics upon in support of his argument.
We think, however, that a careful study of the act will show
that it has a multiple purpose. It provides for the
construction of bridges in which the state alone, or the state in
junction with one or more counties, cities or towns, joins
with an adjoining state, or some subdivision thereof, in the
construction of an interstate bridge, as well as providing
for the joining of a single county with such adjoining
state, or subdivision thereof, in such construction. In all
cases where the state does so join with an adjoining state or
some subdivision thereof in the construction of a bridge of
the character mentioned, whether alone or with a county, city,
or town, the state is given the management and control of
the enterprise through its highway board, and the special
provisions of the statute cited by the appellant undoubtedly
apply. But, without reviewing them at length, we think they
have no application to a case where, as in the present instance,
the enterprise is undertaken by a county and city without
the aid of the state; that, in such cases, the county itself may
control and expend the fund raised for the purpose, and may

 164    WILLIAMS v. PACIFIC COAST CASUALTY CO.
                     Syllabus.                    79 Wash.

lawfully enter into all necessary contracts to carry the
enterprise into effect.

The foregoing conclusions require an affirmance of the
judgment, and an affirmance is ordered.

PARKER, MORRIS, MAIN, MOUNT, ELLIS, and GOSE, JJ.,
concur.