State ex rel. Great Northern Railway Co. v. Herschberger , 117 Wash. 275 ( 1921 )

Fullerton, J.

On December 1, 1919, certain electors of a portion of the county of Okanogan filed a petition with the board of county commissioners of that county, praying that a portion thereof be incorporated as a municipal corporation under the name of the town of Molson. The petition contained an accurate description of the boundaries of the proposed corporation, and was in other respects sufficiently regular. On the presentation, of the petition, the board of county commissioners fixed January 6, 1920, at 10 o’clock a. m., in the rooms of the board in the courthouse at the city of Okanogan, as a time and place for hearing the petition, and directed that the petition be published, together with a notice of the hearing, for at least two weeks preceding the hearing, in 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 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 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.

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.