State ex rel. Fawcett v. Superior Court of Pierce County

The opinion of the court was delivered by Dunbar, J. At a municipal election held in the city of Tacoma, the petitioner, Fawcett, and one Edward S. Orr were opposing candidates for mayor of said city. The election officers of said city returned to the council, which is the canvassing board, that 5,364 legal votes were cast for mayor. Upon the canvassing of the return by the council, it was found that petitioner, Fawcett, had received 2,688 votes and that Orr had received 2,681 votes, giving Fawcett a plurality of 2 votes. Thereafter Orr, not being satisfied with the election, instituted a contest in the superior court of Pierce county, and sought to have the ballots — 605 — recounted. Fawcett appeared in the action, and moved the court to dismiss, on the ground that it had no jurisdiction of the subject matter. The motion was overruled, and Fawcett was ordered to answer the petition as filed, whereupon application was made to this court for a writ of prohibition. The alternative writ was issued, and the cause is now here for a final determination. The only question involved is whether a superior court, under the constitution and laws of this state, has jurisdiction to entertain a proceeding to contest the election of a city officer of a city of the first class. It is contended by the respondent that § 6 of art. 4 of the constitution, which provides, among other things, that the superior court shall have original jurisdiction in all cases in equity, and for such especial cases as are not otherwise provided for, and that it shall also have original jurisdiction in all cases and all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court, is sufficient to give the court jurisdiction in this case; hut we think this contention was decided adversely to respondent’s interest in the case of Parmeter v. Bourne, 8 Wash. 45 (35 Pac. 586, 757), and in many subsequent cases. We think the almost universal rule is that, when the legislature' has acted, and has prescribed subjects of contest, such subjects are to the exclusion of others. Jennings v. Joyce, 116 Ill. 179 (5 N. E. 534). To the effect that contest of the election is a judicial function only in so far as made such by special statute, see Reynolds & Henry Const. Co. v. Police Jury of Ouachita Parish, 44 La. An. 863 (11 South. 236). Sec. 427 of the Gen. Stat. provides that “ any elector of the proper county may contest the right of any person declared duly elected to an office to be exercised — 606 — in and for such county; and also any elector of a precinct may contest the right of any person declared duly elected to any office in and for such precinct,” etc. This is all the provision the law makes for contesting election cases, and the specific provisions made in this section must, under all rules of statutory construction, be held to fall under the rule that the expression of one excludes the expression of the other, and therefore it must be concluded that there is no statutory provision for contesting the election of a municipal officer. It is claimed, however, by the appellant, that the city had the right to legislate on this subject, and to cloth the court with authority to try contested election cases, and to prescribe the mode of such trials. It is true that § 10 of art. 11 of the constitution provides that “ any city containing a population of twenty thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the constitution and laws of this state.” And it is argued that it was the plain intention of the framers of said section to invest the inhabitants of cities containing a population of 20,000 inhabitants or more with all the authority to legislate upon local matters that had theretofore been exercised by the legislature, and that the only limitation of that power was that the same should be consistent with and subject to the constitution and laws of the state. But we must not lose sight of the elementary proposition that municipal corporations have only the powers which are specially conferred upon them by the legislature, or such other powers as by necessary implication flow therefrom. The power to provide a tribunal and clothe it with authority to contest election cases was not specially conferred by the legislature, nor do wre think it was necessarily implied, or implied at all, — 607 — by the constitution, or by any act of tbe legislature to which, our attention has been called. We think that this question has been substantially decided by this court in numerous cases. In State, ex rel. Snell, v. Warner, 4 Wash. 773 (31 Pac. 25), it was held that, under § 10 of art. 11 of the constitution (the same article and section now under consideration), authorizing a city of 20,000 or more inhabitants to form a charter for its own government, and provide for amendments thereto, no authority is given such city to extend its boundaries by an amendment to its charter. In the case of Tacoma v. State, 4 Wash. 64 (29 Pac. 847), it was held that “the grant of power to ‘lay out, establish, etc., streets, alleys, avenues,’ etc.,” did not include an implied power to condemn lands; and that, notwithstanding the fact that the legislature had conferred upon cities organized under “freeholders’ charters” the authority to appropriate private property to corporate uses, and the charter had provided ample methods for the condemnation of such property for such uses as a public street, yet such power was inoperative, in the absence of an act of the legislature conferring the right of eminent domain, and prescribing the method by which it should be exercised. It seems to us that this case goes further than is necessary to go in the case at bar to sustain the petitioner’s contention that the superior court has no jurisdiction; for not only has the legislature failed to prescribe the method of contesting the election of municipal officers, but the power to contest such elections has not, by the legislature, been conferred upon any tribunal. In Seymour v. Tacoma, 6 Wash. 138 (32 Pac. 1077) it was held that the charter law providing registration, as provided by the general laws of the state, and the section of the charter which declared that no person shall — 608 — be entitled to vote unless he is a qualified elector under the state laws, and has registered as provided by law, was inoperative and void, for the reason that there was no state law requiring registration at elections of this character. Certainly the subject of registration for the purpose of purifying elections is more purely a municipal regulation than the empowering of courts with authority to contest elections. The authority conferred upon superior courts, who are state officers, even conceding that the state could create a tribunal clothed with the power claimed for the court in this case, must be created by a higher authority than the local legislature of the city. The jurisdiction and duties of the superior court, and the methods prescribed by which the court shall exercise its j urisdiction, must be conferred by the constitution and by legislative authority; and this was the view this court took in Howe v. Barto, 12 Wash. 627 (41 Pac. 908), where, in discussing that case, the court said : “It is claimed by the respondents that these sections prescribed a rule of evidence for state courts, and that to do so was not within the power of the city in adopting its charter, under the constitution and laws of the state. If the effect of such sections was to prescribe the manner in which a state court should transact its business, the claim of respondents would have to be sustained.” It must be conceded that, inasmuch as there is no manner prescribed by the legislature for trying contested cases in the case of municipal officers, the manner must be prescribed, if tried at all, by a municipality. Again, to show the fallacy of this proposition, if one city which has 20,000 inhabitants can create a tribunal and enact modes and methods for the trial of contested election cases, the other cities of — 609 — the same class in the state must be conceded the same powers, and the result would be, even conceding that the power was conferred in all cases upon the superior judge, that a mode or method prescribed by one city would be different from the mode and method prescribed by the other cities, and there would be presented the unheard-of spectacle of one officer having his case tried under different form, modes, methods, and practice from those applied to another officer in the same kind of a case in another part of the state. We think, plainly, that the superior court had no jurisdiction to entertain this proceeding, and the permanent writ of prohibition will issue as prayed for. Scott and Gordon, JJ., concur. ÁNDers, J., concurs in the result.