Parmeter v. Bourne , 8 Wash. 45 ( 1894 )

The opinion of the court was delivered by

Dunbar, C. J.

— At the general election held November 8, 1892, there was submitted, by order of the county commissioners, to the electors of Pacific county, a proposition to remove the county seat of that county from the town of Oysterville, where it had been established for a number of years, to the town of South Bend, or to the town of Sea-land. On November 18, 1892, the board of county commissioners canvassed the votes on that proposition, and ascertained from the poll books that 1,469 votes were cast on the proposition; that the town of South Bend received 984, the town of Sealand 376, and the town of Oysterville 109. The town of South Bend was thereupon declared to be the county seat of Pacific county, and an order was made requiring the public records and archives of the county to be moved to South Bend on or before the 4th day of February, 1893.

Appellant, a citizen and taxpayer of Oysterville, brought this action to set aside and vacate the order of the county commissioners of Pacific county declaring South Bend to be the county seat of Pacific county from and after the 4th day of February, 1893, and asked for an injunction to enjoin and restrain the defendants, and each of them, and their successors in office, from removing from the county building, or .county offices, or from the town of Oysterville, any of the archives, public records, or any books whatever, or any property whatever, or any records whatever, to the town of South Bend, or elsewhere, and that they be restrained from attempting to remove any such records or archives, etc. The defendants demurred to the complaint, alleging, among other things, that the court had no jurisdiction of the subject matter of the action; that the complaint did not state facts sufficient to constitute a cause of action as to said defendants, or any of them; that plaintiff had no legal authority to sue in said action; and that the court had no jurisdiction of the persons of the defendants. The. demurrer was sustained by the court on the ground that it had no jurisdiction of the subject matter of the action. The complaint alleges fraud in the counting of the votes by the judges of election, and in issuing fraudulent returns to the board of county commissioners of such election.

It is conceded that there is no provision made under the special law for the removal of county seats for a contest in case of illegal voting, unless there be a right of appeal from the action of the county commissioners in canvassing the votes. It is insisted by the appellant, that in this instance, if the law would warrant such an appeal, it would be absolutely ineffectual. With the view we take of the law it is not necessary to pass upon the question of the right of appeal in this character of a case. The statement of facts set up in the complaint appeals to us very strongly for relief, and shows an aggravated case of perverting the election laws, and thwarting the will of the voters, and had we the authority we would gladly place the parties upon the proof of their allegations. But, from an investigation of the law involving the origin, the history of, and the jurisdiction of courts of equity, we are forced to the conclusion that the court has no jurisdiction over this case; and, lamentable as it may be, that the voter is left remediless to have his vote counted for the place of his choice, it would be still more lamentable for a court, which is but a creature of the law, to assume jurisdiction which is not conferred upon it by law, or to usurp the functions of those tribunals in which the lawmaking power has reposed confidence, and upon which it has imposed discretionary powers over the subject matter.

A court of equity is not entirely a free lance which can be wielded independently of law or regulation. It is just as subservient to, and dependent on, the law so far as its jurisdiction is concerned as is a court of law. It is true that the rules governing the administration of law, and of enforcing and protecting rights under the law as applied by courts of equity, are ■ more pliable and adaptive than are the rules governing courts of law. The object of the establishment of courts of equity was to escape the rigidity of the rules governing cases of law, and to confer more discretionary powers upon the chancellor, thereby making the administration of the law more flexible and more effective for the elicitation of truth; and these flexible principles, or rules, which characterize the proceedings in equity, are usually applicable to the investigation of cases where fraud is involved, and for that reason such cases are assigned to the equity jurisdiction.

For this reason loose expressions are" sometimes indulged in, to the effect that “it is one of the inherent powers of a court of equity to correct fraud. ’ ’ This proposition is no doubt true as applied to the powers of a court having jurisdiction of the subject matter in which the fraud is involved; but it no more follows that the mere suggestion of fraud gives a court of equity jurisdiction, than that the suggestion of the deprivation of a legal right gives a court of law jurisdiction where the law has provided no remedy or no tribunal to enforce the right. This discrimination must not be lost sight of, viz., the difference between the jurisdiction, and the extended powers of the court under its jurisdiction.

There was a much wider distinction between the jurisdiction of courts of equity and law in ancient times than there is at present.

“The court of chancery,” says Pomeroy, Eq. Jur., §§ 34, 35, “as a regular tribunal for the administering of equitable relief and extraordinary remedies, is usually spoken of as dating from this decree of King Edward III; but it is certain that the royal action was merely confirmatory of a process which had gone on through many preceding years. The delegation made by this order of the king conferred a general authority to give relief in all matters, of what nature soever, requiring the exercise of the prerogative of grace. This authority differed wholly from that upon which the jurisdiction of the law courts was based. These latter tribunals acquired jurisdiction in each case which came before them, by virtue of a delegation from the crown, contained in the particular writ on which the case was founded, and a writ for that purpose could only be issued in cases provided for by the positive rules of the common law. This was one of the fundamental distinctions between the jurisdiction of the English common law courts, under their ancient organization, and that of the English court of chancery. This distinction,” says the author, “has never existed in the United States. The highest courts of law and of equity, both state and national, derive their jurisdiction either from 'the constitutions or from the statutes.”

And especially has this distinction, so far as inherent powers are concerned, been destroyed in this state by our statute, which provides that there shall be but one form of action in this state hereafter for the enforcement or protection of private rights and the redress of private wrongs, which shall be called a civil action. As a conclusive proof that the correction of fraud under all circumstances is not an inherent power of a court of equity, it is universally conceded that under our form of government neither courts of equity nor law have jurisdiction over political questions which do not involve the rights of private parties; that in such cases the will of the legislature is supreme, and that the contentions arising in such cases must be settled by the tribunals created by the legislature for that purpose, and that if the legislature has provided no remedy for grievances that may be engendered under such laws, it is simply a casus omissus, and no remedy can be obtained. The administration of the law is full of such discoveries as these, and as unfortunate as they may be, they furnish no good grounds for an unlawful assumption of authority by the court. So we say, by reason of this universal concession the doctrine of inherent power is destroyed, whether this prove to be a political question or not. And it seems to us that the removal of a county seat is so essentially and purely a political question that the mere statement of the proposition ought to excuse any further argument.

And so with the further proposition that the plaintiff in this case has no property interest in the suit, which it seems to us is a necessary corollary to the first proposition; for no person can have a property right in a county seat if the removal of the county seat is a political question. The contrary conclusion, if carried into effect, would involve a judicial mixing of rights and remedies that would be incongruous, and little less than ludicrous. In the very nature of things, a person can have no private interest in the location of a county seat. If he has, what does the interest consist of? How can it be shown, and its extent determined? What is the measure of damages? An attempt to answer these questions will show the fallacy of the position.

It is urged that he has a right to vote and to have his vote counted. The right to vote is not a natural right, nor is it an absolutely unqualified personal right. It is a right derived in this country from constitutions and statutes. McCrary on Elections, § 11.

His right to vote, then, in this case, was a right conferred by the same statute which provided how the vote should be counted. All the right-he had was derived from the statute. It was no broader than the statute, and if the statute has attempted to confer upon him a right, and failed by reason of its imperfection in the way of prescribing remedies, it is simply his political misfortune, and the only relief is in remedial legislation. The authorities, we think, overwhelmingly sustain these propositions, and we will consider them together.

“In the absence of constitutional inhibitions, the legislature has power to declare the certificate of election con-elusive, in all cases. It may or may not authorize a contest. If a contest be authorized, the mode of contest and of trial will rest absolutely in the legislative discretion. The legislature has full power to determine what tribunal shall hear and determine the contest, and may confer the jurisdiction upon one of the ordinary judicial tribunals, or upon a judge thereof, or upon any other officer, and may, or may not, authorize a trial by jury.” Paine, Law of Elections, §793.

“Unless specially authorized by statute, a court of chancery has no power to enjoin the holding of an election. The docti’ine announced is, that courts of equity have no inherent power to try contested elections, and can only exercise such power where it has been conferred by express enactment, or necessary implication therefrom.” McCrary on Elections, §351.

Canvass of the board to determine the result of an election held by order of the board of supervisors by a two-thirds vote of a county, at a meeting in which all the towns were represented, for the purpose of determining the location of the county seat, is conclusive. Hipp v. Supervisors, 62 Mich. 456 (29 N. W. 77).

It does not appear from the report of this case whether there was any question of fraud involved, but we must conclude from the language of the court that it would not have made any difference in the disposition of the case, but that it was decided upon the broad ground that it was not a judicial question. Chief Justice Campbell, in delivering the opinion, says:

“The questions are not such as the courts have any right to disturb after they have been disposed of by the only authority which the law has empowered to act upon them. The supervisors, at a meeting when all the towns were represented, by a two-thirds vote, ordered an election to determine upon the proposed removal of the county seat. This election was held, and the board determined the result upon a canvass. That action is conclusive, and no authority exists anywhere to dispute it. The controversy, which is not in any proper sense a judicial one, is closed. The constitution has not empowered this court to settle controversies not judicial, which are very wisely left to the proper local and representative agencies of the people. ’ ’

It is argued in this case that there is no discretion vested in the board of county commissioners, but whether that be true or not, it makes no difference in principle whether the discretion was vested in the board of county commissioners or in the judges and inspector of the election. The legislature would have power to invest the discretion in either tribunal, and under our constitution they had invested the discretion and entrusted the board, consisting of the judges and inspector of the precincts, with the power to canvass the votes of the precinct, prepare the returns, and transmit them to the county commissioners; and the county commissioners have been entrusted with the power to canvass the vote as returned by the different election boards, and declare the result; and it can make no difference in principle if the legislature has seen fit to invest different tribunals with discretionary power.

“In the absence of statutory authorization, the courts are without jurisdiction, ratione materia2, to entertain the case of a contested election, and the consent of parties cannot give them jurisdiction.” State v. Judge of Second Judicial District, 13 La. An. 89.

This is not a county seat case, but involves the question of judicial jurisdiction. In that case the court said:

“The contesting of votes is not a judicial function, only so far as made such by special statutes. Indeed, some may have gone so far as to question whether this is not wholly a matter of administration which cannot with propriety be referred to the judicial tribunals at all. At any rate it is clear that such tribunals cannot usurp any greater control over this business than is specially imposed upon them by law. In the absence of a statutory authorization, they are without jurisdiction of the matter, ratione materim. The consent of parties cannot give jurisdiction, and all courts before whom such an unauthorized controversy is brought must decline, ex officio, to render any order which would recognize a right to sustain the case. ’ ’

In State v. Police Jury, 41 La. An. 850 (6 South. 777), the doctrine announced in the case of State v. Judge of Second Judicial District, supra, 'was affirmed. • This was a parish suit case, and the court, among other things, said:

‘ ‘ It seems well settled that, in absence of express statutory authority, courts of equity will not exercise such jurisdiction. . . . It is ancient, and it has been at all times within the power of the legislature to extend to the courts the jurisdiction which they had declined. The fact that the legislative has not done so, or has extended only a jurisdiction defined and limited, clearly conveys the intention of the department to exclude the courts from any jurisdiction in such matters beyond that expressly granted. Indeed, the assumption of such jurisdiction, in absence of any legislative regulations of method, time and order of procedure, would be fraught with serious consequences. There is no possible reason or consideration for applying a different rule to elections for parish seats from that applied to elections for officers. Both are matters of purely governmental concern, involving only public and popular rights and conferring no private rights which are susceptible of becoming vested.”

Skrine v. Jackson, 73 Ga. 377, involved the contest of an election on a fence law. It was decided that that was a part of the political power of the state which the legislature had seen fit to confer upon the ordinary, and the courts had no authority to interfere.

“There are but two modes,” said the court, “by which the legality of an election may be inquired into — by the common law and by statute. By the common law an information in the nature of a writ of quo warranto was exhibited by the state, upon the relation of some person claiming the office said to be usurped by the defendant, and he was required to show by what authority he held the office. The legality of his election might be inquired into by this proceeding.” [And some reference is made to the Georgia code.] “It is quite clear that such a proceeding is not applicable to the present case. There is no office, and there is no person claiming an office, and no person exercising an office, but simply a law is declared adopted, which provides for the future that no fence need be used by the citizens of Eichmond county. Is there any statute of force in this state, other than has already been referred to, which authorizes the courts to inquire into the legality of this election? None has been pointed out to us, and we have failed to find any. Then, if the remedies provided by the common law fail, and no statutory remedy be provided, is not the presumption conclusive that the legislature did not intend to have judicial interference in this matter, but to leave it to the determination of the ordinary, as provided in the act? ”

In Freeman v. State, ex rel. McDonald, 72 Ga. 812, it was decided that the legislature could provide a tribunal for the determination of contested elections and that such determination was final and conclusive.

Clarke v. Jack, 60 Ala. 271, was a county seat case, and it was decided that an act to authorize the people of a particular county to vote on the question of removing the county seat, and to permanently locate the same according to their vote, is not a special or local law for the benefit of individuals or a corporation, and that the provisions of the general election law regulating contested elections did not apply to county seat elections, and did not amount to a statutory provision for a contest of such election.

In Harrell v. Lynch, 65 Tex. 146, it was decided that voters in a county have in the location of a county seat no such interest as will form the basis of a suit. Said the court:

“As no man has a property right in the location of the county seat, its unlawful removal (no more than a trespass upon the court yard) gives him no cause of action. . Being deprived of no right, the depreciation in the value of his property is not a wrong for which a court of equity, in the absence of a legal remedy, would invent the means of redress. A valid law authorized the election, the election has been held, the agents appointed to ascertain and declare the result have performed that duty. This accomplishes the fact, and the law here ends the controversy. If a wrong has been done, the usurpation of the power to prescribe a remedy would be a still greater wrong.” ■

Sanders v. Metcalf, 1 Tenn. Ch. 419, is a case involving the removal of a county seat. The court said:

k‘It is clear to my mind that the legislature has, by this language, entrusted to the county court at its quarterly session, as the proper organ of the county, as a quasi corporation, the right to count the votes and declare the result. ... As soon as the result was declared, the county seat was eo vnsta/nti changed, as if it had been done by an act of the legislature. The county court were commissioners appointed by the legislature to make the removal by declaring the result of the election, and their act, not being judicial but legislative, is conclusive, and the courts have no power to inquire into its validity.”

In McWhirter v. Brainard, 5 Or. 426, it was held that, upon the submission of the question of the location of a county"-seat to an election, the question of fact as to whether the canvass of the vote was correct, and as to what the true vote was, and subordinate questions, cannot be tried in equity.

In Attorney General v. Supervisors of Lake County, 33 Mich. 289, it was decided that the question of the removal of a county seat is purely a political question, and does not in any way legally involve the rights of private parties.

There is no distinction made in the cases between cases where fraud is alleged, and where it is not alleged. They are all decided on the broad ground that the question is a purely political one, over which the court has no jurisdiction if it is not specially given by the law making power. Cases supporting this doctrine might be cited at great length. In fact, there are but three states that have held the opposite doctrine.

In Boren v. Smith, 47 Ill. 482, it was held that in a county seat case where fraud was alleged a court of chancery would take jurisdiction. The court in that case admitted the general doctrine, but made an exception as to a county seat case, for which we see no reason whatever. They further based their decision on the fact that the constitution has declared that such a vote should be taken before a county seat can be removed, and the court says:

“And in making that provision, it is manifest that it was designed that the will of the majority of the legal voters of the county should control. It would defeat that object, and render this fundamental provision inoperative, if the sense of the majority of the legal voters, constitutionally expressed, might be overcome by illegal voters, or other fraudulent means. ... As there is no law in England similar to this provision of our constitution, and the organic laws of other states are believed to have no such provision, it is not to be.expected that precedents may be found upon which to base the jurisdiction of a court of equity. But if our courts of equity were, in the absence of legislative action, to refuse relief, this constitutional provision could, by fraud, be rendered inoperative and wholly defeated.”

This argument is squarely against the decision in State, ex rel. Reed, v. Jones, 6 Wash. 452 (34 Pac. 201), where this court held that, where an act of the legislature had been properly certified, courts had no authority to inquire into any prior proceedings on the pai’t of the legislature to ascertain whether the mandatory provisions of the constitution had been complied with, but that the enrolled bill properly certified to was conclusive evidence of that question. This decision was based upon the theory that the legislature was one of the coordinate departments of the government, with equal authority with the others, and that the assumption is a false one, that the “mandatory provisions of the constitution are safer if the enforcement thereof is entrusted to the judicial department than if so entrusted to the legislature. ’ ’ Or, ‘ ‘ in other words, ’ ’ said this court, ‘ ‘ courts holding the other view have acted upon the presumption that their department is the only one in which sufficient integrity exists to insure the preservation of the constitution. ’ ’

If, then, the removal of the county seat is a political question (a proposition which cannot be seriously denied), the regulation and control of which under our form of government are within the exclusive jurisdiction of the legislative department, it follows from the logic of State v. Jones, supra, that the state of facts, properly certified to by the tribunal, solely empowered by the legislature to pass upon the questions involved, must be taken as conclusive. The legislature has made provisions for the determination of these facts. In these provisions it did not see fit to provide for any review or investigation by the courts, and the courts, therefore, are without authority to act in the premises.

People v. Wiant, 48 Ill. 263, is decided on the same grounds. But in neither case is it assumed or intimated that they are following the weight of authority, or any authority at all. As, however, the authorities opposed to the jurisdiction in cases of this kind are so overwhelming, we feel bound to follow them, and it will not be necessary to examine the other questions raised by the demurrer.

The judgment of the lower court is, therefore, affirmed.

Anders and Scott, JJ., concur.