Hesseltine v. Town of Wilbur , 1902 Wash. LEXIS 602 ( 1902 )

Per Curiam.

The appellant, as a taxpayer, instituted this suit against the town of Wilbur and the respondents named, for the purpose of obtaining a restraining order and injunction, restraining and enjoining the respondents from selling or' delivering certain bonds (more fully hereinafter described) for the building of water works in the; town of Wilbur. The respondents answered and pleaded: The town of Wilbur is a municipal corporation, city, or town, of the fourth class, incorporated by an order of the hoard of county commissioners of Lincoln county, Washington, made and entered on the 4th uay of August, 1890, under the provisions of the act of March 27, 1890, which said order of the board of county commissioners was filed in the office of the secretary of state; on the 14th day of August, 1890. That ever since the date of said incorporation the town of Wilbur has maintained an organized government, and has performed all ■of the functions of a municipal corporation of the fourth class, and is still maintaining such government and performing all the functions of such a municipal corporation. That the respondents other than said town are the duly elected, qualified, and acting' officers of said town. That on thei 7th day of August, 1901, at a regular1 meeting of the, town council, it was decided to construct a system of waterworks within the town of Wilbur, and to employ a competent engineer to draw plans and specifications for the same. That on the 16th day of October, 1901, at a regular meeting of the town council of the town of Wilbur, ordinance No. A54 passed first reading, and after-wards, on the 6th day of November, 1901, a,t a regular meeting of the town council of Wilbur said ordinance No. A54 was read for the second time by sections, and adopted and passed. This ordinance is an exhibit to, the answer, and authorizes an indebtedness for the waterworks. That on the 8th day of November, 1901, said ordinance No. A54 was regularly published in full in the Wilbur Register, a weekly newspaper of general circulation published once each week at Wilbur, Lincoln county, Washington, and that said Wilbur Register’ was the newspaper doing the town printing, and was the newspaper designated in said ordinance as the one in which said ordinance was to' be published, and that said ordinance took effect and was in force from and after its passage, approval, and publication, and has never been repealed, amended, or set aside. That notice of the election provided for in said ordinance was given by publication in the Wilbur Register-, the paper doing the town printing, and designated in said ordinance, for a period of five consecutive Aveeks immediately preceding the holding of said election, to-wit, from the! 15th day of November, 1901, to the 13th day of December, 1901. That on the 15th day of November, 1901, notice ivas published to the voters of the said town of Wilbur that all persons who desired to vote at the said election must register before the 6th day of December, 1901, and that the registration boohs for said election would close at that time; the same being ten days before the date for the holding of said election. That said notice to- voters was published in the Wilbur Register for four consecutive weeks, from the 15th day of November, 1901, to the 6th day of December, 1901, inclusive. That said election, in pursuance to the notice thereof heretofore mentioned, was^ at the time; place, and date in said notice given, held and conducted in all things as required by law, and that, a,t said election there were 130 votes cast, 122 of which were in favor of adopting the system of -waterworks as set forth in said ordinance No. A54, and 8 of which were against the adoption of said system, and 122 of said votes were in favor of bonding the town of Wilbur in the sum of eleven thousand, nine hundred and fifty dollars, as provided for in said ordinance, and 8 of Avhich said votes Averei against bonding. That afterAvards, at a regular meeting of the town council of the toAvn of Wilbur, held on the 18th day of December, 1901, the said toAvn council proceeded, to canvass and did canvass the said Azotes, and said to-Avn council then and there found that said system and plan had been adopted, and said proposition to bond the town of Wilbur had also been adopted, as set forth in said ordinance No. A54, by more than three-fifths of all the votes cast at said election, and said town council then and there ordered that said system of Avaterworks be adopted, and that bonds, be issued in the sum of $11,950, as provided for in said ordinance, No. A54. That the assessed valuation of said town at the time of the adoption of said ordinance was $240,548, and that the amount of said bonds so authorized to be issued did not exceed five per cent, of the assessed valuation of said town of Wilbur. That the levy of two- and one-half mills for die purpose of paying the interest on said bonds in each year1 is sufficient to pay said interest. That said bonds have been sold, and the mayor and clerk ordered to prepare, sign, and deliver’ the same to the State Bank of Wilbur, the purchaser of said bonds, upon the payment of the sum of $11,951, the amount bid therefor.A demurrer was interposed to this answer, and, after argument, was overruled and the appellant refused to plead further, and elected to stand upon the demurrer, and thereupon a judgment was altered dismissing the action. From this judgment this appeal is taken.

All the errors assigned in the appellant’s brief were waived in open court on the argument in this case, except that relative to1 notice. This error is assigned as follows:

“The court erred when it held that thirty days’ notice, as given in the notice of election, was equal to- ten days’ notice, as by law required to be given.”

The appellant does not contend that ten days’ notice was not given as required by law. His contention is that the ten days’ notice, and twenty days more, in all thirty days, was given, and that this is not a compliance with the law requiring ten days’ notice. This court, in Seymour v. Tacoma, 6 Wash. 427 (33 Pac. 1059), upheld an election where the election notice was less than the lime required by statute. In the case cited we said:

“Thei bottom question is, is literal compliance with the formalities prescribed for giving notice in this kind of an election a sm& qua non? Certain rules as to notice of elections have become well settled, and none of them are better settled than that the formalities of giving notice, .although prescribed by statute, are directory merely, unless there is a declaration that unless the formalities are observed the election shall be void.”

We think the notice in this case was sufficient, and the fact that it was for thirty days, in place of ten days, does not vitiate it, and it is a substantial compliance with the statute.

The judgment of the court below is affirmed.