SMITH '11. BOARD COUNTY COMB'S SKAGIT COUNTY.
court in the interest of the public, for the double purpose of condemn. ing such unnecessary use of force, and to preserve peace and good order in the community; and if this court were a court of the state of Washington, vested with any part of the powers of the local government, and a conservator of the peace in this community, I should on that ground grant the injunction prayed for. But it is not necessary or proper for a national court to thus interfere in matters of local concern. The laws of this state make ample provision for punishing breaches of the peace, forcible entries and detainers, and the malicious destruction of property, and afford ample remedies to individuals suffering injury by such wrongful conduct. The courts of the state have ample power to enforce these laws, and apply the proper remedies in all cases for the redress of such wrongs; and I am therefore constrained to decide that the plaintiffs are not entitled to any part of the relief prayed for, and that this suit be dismissed at their costs. I shall not, however, allow the defendant to recover 'any part of the sum paid to the examiner for his fees and services in the taking of testimony, for the reason that it is apparent to me from reading the testimony, and the report of the proceedings before the examiner, that the expense of taking the testimony was unreasonably increased by the manner in which the cross·examinatidn of the plaintiffs' witnesses was conducted, and the offering of irrelevant and unnecessary testimony. I consider that the attorneys for both parties are about equally in fault for the manner in which the proofs were taken, and shall leave the parties to bear the expense in the proportion that it has been paid by them, respectively.
SmTH fl. BOARD COUNTY CoM'Rs SXAGIT COUNTY.
(CircuU Cowrt, D. Washington, N. D. March 18; 189L) L
The non-resident owner of property within the limits of a proposed corporation, though not an elector, and not entitled to contest the election in the manner provided by statute, may maintain a, bill to restrain the county commissioners from canvassing .the returns of an election held under certain statutes of Washington, for the purpose of effecting the incorporation. on the ground that it was void because of a failure to comply with the statute. Where a statute providing for an election by the inhabitants within the boundaries of a proposed municipal corporation, at which the question of incorporation shall be submitted to the people, fails to provide for any census or enumeration of the people preliminary to such proceedings, a fallure to make sucb enumeration will not affect the validity of the election, Where it appears that the board of county commissioners made a record in their proceedings declariQg the number of inhabitants. A notice of such election. signed by the county auditor, who Is ea: officio clerk of the board of commissioners, ,alld ill whiqh it appears that the election was ordered by the board, is a sufficient compliance with the provision of the statute that such notice shall be given by the board of commissioners. '
:3. SAMB-NOTIOB OF ELEOTION.
,. Bur... ' . ..: '>.'. . . ' .. Though the statute requires thl\tthe. D,otice shall state tM,pu,mber of inhabItants within the 'boundaries of the proposed corporation as ascertained by the board of cotDmissIoners, a failure. to do so is.a. mere irregularity,. Which cannot prejudice a lion-resident property owner, and will alfect the vl\lidityof the election.
In.the absence of any statutory restrlCtioD.as to the' boundaries of cIties of the olass to which the corporation in quesj;i(>n belonged, it was entirely proper that its and limits should be extended over its harbor, and navigable water , '. In tront of it. . , '
.. Unqer a statute requiring a regIstration of voters prior to all general and . fpal elections, in all cities and towns, and those precincts having a voting population of 250 or more, such registratIon is essential to the right to vote, and an election,atwblch the qU6ll,ion whether the city should be illool'porated or not was sUb-. mitted, but before which no such registra.tion was had, isjnvalid, and ·the proceedings for incorporation will be restrained until tile question oan be properly ,
In EqlJity. Bill for injunctiQn. J. O.l/IJ,ines, Eben Smith, W. Lair Hill, and Batae &: Shipley, for plain.' . tiff. ' , Prewett &: Megquire and Seymour E. Jones, for defelldant.
HANFORD,J. This case has been heard .upon the plaintiff's application for an order to restrain the board of county commissioners of Skagit county,in this state,until a final hearing can be had, from canvassing the returns of an election which has been held for the purpose of effecting the incorppration,of the city of· Anacortes, under a general 'law and from of the state providing for the incorporation of towns and making a certificate pursuant to said statute, declaring the result of satd election and the legal incorporation of said city, and which, if made, will show prima facie the legal right of the several persons elected as officers of said city to exercise the powers appertaining to the officers of a municipal government., The plaintiff' contends that the. election was irregular andvoid';; and that no lawful municipal government can come into existence by means thereof, because: (1) The board of county commissionei:'lii,of theco\lnty did not, prior to ordering said election, adopt any means for ascertaining the number of inhabitants residing within the;btmndaries.of the proposeq city; (2) the notice pursuant to w,hich the election was held was issued by the county auditor, and did not purport to have beenissued by the board of county commissioners; (3) said state the number of inhabitants of the proposed city, as ascertained by the board; (4) the boundaries include in part the waters in front of thepr,9posed city; (5) the law in regllrd to tlie rej!;istrailon of voters has not. been complied with, registered as and none'oftll'epersdns who voted legal voters ,Qfthe precinct or precincts within which the site of the proposed city is situated. ',The plaintiff; who is a noh-resident of the county, owns valuable land within the limits of the propQsed city, and fronting upon it$ hliJ'bor,which, will be >subject to taxation and assessment for municipal' street impl'overrieritpui'poses, and to the control and uses which 'a municipal gov,ernment"may exercise and make of such
SMITH V. BOA.RD COUNTY COM'RS SKAGIT COUNTY.
property. He alleges that, by reason of his ownership of said land, he will be especially injured by th\:l unlawful exercise of the governmental powers, ",hich by the laws of,!his state appertain to an incorporated city. The pl,l.rticular provisions of the statutes which affect the several questions at issue are as follows:
"An act prOViding for the organization. classification, incorporation, and government of municipal corporations. and declaring an emergency. "Section 1. Any portion of a county containing not less than three hundred intiabitants. and not incorporated as a municipal corporation. may become and, when &0 incorporated, shall incorporated under the ,provlilions of this have the powers conferred. or that may be hereafter conferred, by law upon municipal corporations of the class to which the saine may belong. "Sec. 2. A petition shall first be presented to the board of county commis,of Buch county. signed by at least sixty q II alified electors of the cou nty, residents within the limits ohuch proposed corporation, which petition shall f1et forth and particularly describe the proposed boundaries of such corporation, and state the number of inhabitants tllereinas nearly as may be, and sball that the same may be incorporated under of this act. *. * * When such petition is presented, the poard,of county commissioners shall hear the satne. and may adjourn such hearing frolU time to time, not exceeding two months in all; and on the tinal hearing shall make suphchanges in. the proposed boundaries as. they may find to be proper. and shallestal)Ush and delinesueh boundaries, arid shallaseertain and determine how many inhabitants reside within such boundaries: provided. that any changes 1D1lde by said board of count.)' conlmissioners shall not includElany territory the boundaries described in such petition. They Shall then give notice, Of an election to' be held in stich proposed' corporation, for the purpose of determining'whether thesatneshall become incorporated. Such notic8shall particularly describe the boundaries so established, and shall state the name of such propQsed, cqrporation, and the number of inhabitants so ascertained reside therein, and the same shall be published for at least two weeks,prl,or to such election. in a newspaper printed and published within such bOundaries; or posted; for the same. period, in at least four public places therein. shall 'reqUire the voters to cast ballots. which shall contain tbewords, ·For'incorporatiQn.' or ·Against corporation. 'or words equivalent thereto. and also the names of the persons voted for to fiU the various offices prescribed by law for municipalcorporations of the class 1;0 such proposed corporation will belong. ; "Sec. 3, S,uch election, shall be conducted in accordance with the general elect,ion laws of the state. and no person shall be entitled to vote thl'reat unless he shltllbe a qualified elector of the connty. and shall have resided within the limits' such proposed, corporation for at least, thirty dayR next preceding such election. Theboai.'d of county commissioner" 'shall meet on the Monday next succeeding I,mch, election and proceed to canvass the votes cast thereat; and if upon can vass it appear that a majority of the votes are f?r incorporation, the boa,rd by an order entered n,pon their minutes, declare such'territory dUly incorporated as a municipal corporation of the dass to which the same shall 'belOng, under the name and style of the c1ty(or town, as. the case may (naming it.) and'shall declare the persons receiving, respectively.tbe!llighest number of votes for !leveral offices to be duly elected to; s\lchoffices. Said board shall cause a copy of such certIfied to bElJHeq.i1l the office of the secretary of the state; and order, from and after,the date c;>tli';1<!h bedl:'emed complete. and such officersshp.11 be entitled to enter upon tb,a duties of their respective offices,J upon' qualifying'1tr accordanCe with law, and 'shall
hold such offices, respectively. only until the next general munipical election to be. held in such city or town, and until their successors are elected and qualified. " ' "An act to provide for and to regulate the registration of voters in cities and towns, and in precincts having a voting population of two hUndred and fifty (250) or more. "Section 1. In. all cities and towns, and all voting precincts, having a voting popUlation of two hundred and fifty (250) or more, who are entitled to the right of suff,rage. as shown by the number of votes cast at the preceding general election. there shall be a registration of voters prior to all general and municipal.elections. as herein provided." "8ec.4. It shall be the duty of all citizens of such city. town. or voting precinct. after the opening of the books. as herein provided. to apply to the city or town clerk. or officer of registration. and be registered therein. at such times or time as said books shall be opened for that purpose. as provided in this act; and such registration. when m.ade as in this act provided, shall entitle such citizens to vote in their. respective wards and precincts. If such citizens are otherwise legally qualified voters at such election. and have so caused themselves to be registered, such registration shall be prima facie evidence of the dght of such citizens to vote at any election held in such city, town. or, precinct subsequent to such registration, and preceding the first Monday of January next thereafter." "Sec. 9. No person shall be entitled to vote at any'election in any such city, town, or precinct who is not registered according to the provisions of this act."
The plaintiff, being a non-resident, and not an elector within the county of Skagit, is not entitled to the privilege which an .elector would have of contesting the election in the manner provided. by the statutes. If the organization of a de/acto municipal corporation becomes perfected. his property will be subjected to the control of others, and to that extent he will be deprived of dominion over it, and subjected to expense by taxation and otherwise, and even if the proceedings incorporate the city be so tainted with illegality that, upon proper proceedings in quo warranto being instituted by the state, the courts would be obliged to adjudge the organization unlawful, and annul all of its corporate acts, yet the plaintiff may be obliged to submit to the rule of such an unstable government until the state offi(:ials see fit to exercise their prerogatives; and unless he is entitled to wage this sqit in equity he has no remedy for any wrong that may be,done respecting his property, within the limits of the corporation, by means of such unllj.wful proceedings. While no case' that ma)' be regarded exactly as II precedent has been brought to my attention to sustain the plaintiff's right to the relief sought in this suit, it is equally true that no case in point denying such right has been cited. The plaintiff is not attempting to contest the election with the object of having the result declared to be different from what others contend to be the true result. He claims that the election is void, and asks for protection agttinst injuries which may reasonably be expected to result from official recognition of the election as if it were valid; andtlpon principle it appears to me that the facts alleged in the plaintiff's bill bring the case clearly within the well-established rules of equity by which such relief is nlways granted. There are several grounds
BOARD COUNTY COM'RS SKAGIT COUNTY.
upon which equitable jurisdiction may be invoked, one of which is that the plaintiff shows that he will suffer injury of a pecuniary nature by the doing of the threatened acts, and that no computation can be made of the resulting damages. Upon this ground I shall rest my decision, holding that the plaintiff is entitled to the restraining order prayed for if in fact the election was not lawful. I have been especially urged to pass upon all the grounds of illegality in the proceedings alleged by the plaintiff, and will do so in order as above. As to the first objection, I hold that as the statute under consideration does not specifically require that the inhabitants within the district proposed to be incorporated shall be enumerated expressly for the purpose of enabling the board of county commissioners to ascertain the number thereof before ordering an election, such enumeration is not necessary. In other words, as the statute does not say that a census must be taken, the court cannot say so. The law does require the board of county commissioners to ascertain the number of people within the limits to be incorporated by any prescribed method, but leaves the board free to ascertain the number in any manner possible. The plaintiff's bill shows that the board of county commissioners have made a record in their proceedings declaring the number of inhabitants to be 2,000, and, notwithstanding the plaintiff's allegation that the board took no steps to ascertain the number of people, I think it conclusively appears that means which to the board seemed sufficient and proper must have been made use of to obtain the requisite information, and I therefore decide this point against the plaintiff. The notice for the election was signed by the county auditor of Skagit county. That officer is ex officio clerk of the board of county commissioners, and the proper person to act for the board in issuing such a notice. In the body of the notice it plainly and sufficiently appears that the election was ordered by the board of county commissioners, and consequently that the notice itself was in fact issued by the board as the law requires, and I therefore hold against the plaintiff as to this second objection. The law specifically requires that the notice shall state the number of inhabitants ascertained by the board to reside within the boundaries of the proposed corporation, and, as the notice in question does not contain such statement, it fails to comply with the law, and the proceedings are on this account irregular. I consider, however, that it is a mere irregularity, and in a point not vital. I do not believe that any court would, on this ground, adjudge that the corporation, if its organization should be completed, would be invalid. I do not see that the plaintiff can be prejudiced by such irregularity, andJ therefore decide this point against him. It is essential to the maintenance of an efficient city government that its police power and jurisdiction should extend over its harbor, if it has a harbor, and in the argument before me the fourth objection urged was liot supported by the citation of any statute or adjudged case. Thestat-
tltepl8.oosrio limit upon the power and discl'etion of the board of county c,ommissioners in fixing the boundaries of cities of the class to which Anacortes properly belongs, and· I certainly consider that the If'gislature must'have contemplated that the boundaries of such a city would, in all probability, be so fixed as to include its harborjand. in my opinion, the proceedings are not invalid because the boundaries were !'O fixed. The last objection is more serious. The question whether to incorporate Ol"not must be determined, under this law, by the votes of the qual. ified electors residing within the boundaries of the proposed city. ,From the 'number of the inhabitants within the district proposed to be incor· porated in this city it appears that there was necessarily within the same district a voting population exceeding 250, and it was necessary, therefol'e,under the laws of this state, that the voters of the precinct embracing such district shoulUbe registered, and registration is essentialto the right to vote. I think that as, by the terms of the statute, only qualified electors are entitled to vote at an election to determine whetheria city shall be incorporated, where the registration law has been disregarded, as it plainly has in this case, the election is an absolute nullity. McCrary, Elect. (3d Ed.) § 100. This author says: "It being conceded that the power to enact a registry law is within the power to regulate the exercise of the elective franchise and preserve the purity of the ballot, it follows that an election held in disregard of the provisions of a registry law must be held void." In my opinion, a valid election is a necessary prerequisite to the creation of a validrnunicipal corporation under the laws of this state, and, as the election referred to in the plaintiff's bill is, for the reasons I have stated, invalid, proceedings to complete the incorporation of the city of Anacortes ought to cease until the question whether or not to assume the powers and burdens of an incorporatedcity, under the laws of this state, can be. determined by a vote of the'legally qualified electors thereof. In accordance with this opinion, the plaintiff's application for a temporary restraining order will be granted.'
CORTES Co. 'II. THANNHAUSER
(O(rcuUOourt, S. D. New York. April 25,'1891.)
VENDOR 'AND'VENDBE-RESOISSION OF CON,TRAOTS-FRAUDULENTREPRESENTATIONS.
Defenllantli received an option to, purchase mining property in Mexico, from the l)wners, for,.110,ooO, and authorized'an agent to sell the same for that amount, agree.to allow him two-thirds of anyexoess he might obtain over that prioe. The agent 'entered Into, negotiatloDs with. 0llrtl/-illpersons illl'\evr York city, whioh resulted in the formation of a syndicate to organize a cOl'porlition for pu,'chasing the property. The agent agreed with the promoters to sell the property for $150,000, and tosubso;:ribe and pay for two-tenths money;bimself as one of the promoters. The corporation was organized; and the agent sUbscribed for btock to the extent of his part of the purchase Illoney. He was irresponsible at the time, and . knOWD: to be so by the defendants. , .He\1a4, represented to .the other promoterS that the price whicl1 the defendants were to pay:the owners for the property was $150,OOO,less a small commissioD of about $2,500; that the whole price,less this commis-