State ex rel. Quigley v. Superior Court , 71 Wash. 503 ( 1913 )

Ellis, J.

On December 13, 1912, the relator procured, upon ex parte application, a writ of certiorari, to review the proceedings of the superior court of King county in an action to contest an election. On the return day fixed by the writ, the respondent, Byron Phelps, moved to quash the writ on the ground of lack of jurisdiction. Briefly, the ruling sought to be reviewed is the action of the trial'court in refusing to order a recount of the ballots until some proof aliunde the ballot boxes should be made tending to impeach the regularity or integrity of the official count and canvass.

It is contended that certiorari will not lie, because the statute governing election contests accords an adequate remedy by appeal. Rem. & Bal. Code, § 4956. The relator argues that the remedy by appeal would not be adequate, for the reason that the eontestee would take office on January 13, 1913, and would hold the office a number of months before an appeal could be heard, and that the six months during which the ballots will be preserved under the statute (Rem. & Bal. Code, § 4928), would expire and the ballots would be destroyed before a retrial could be had. This argument is not convincing. The same result would follow in every case of election contest if it would follow in this case, and the section of the statute giving the appeal would be nugatory. But no such result need follow in any case. Documentary and physical evidence when properly offered may, although rejected, be preserved and made exhibits in the case. The same facilities exist for the preservation in the statement of facts of evidence offered and rejected as of that received. The remedy by appeal would be as adequate in this as in any other election contest. The delay would be no greater than in an appeal in a case of any other character, and we have repeatedly held that the delay incident to an appeal cannot be regarded as affecting the adequacy of the remedy. Jones v. Paul, 56 Wash. 355, 105 Pac. 625; State ex rel. Young v. Denney, 34 Wash. 56, 74 Pac. 1021; State ex rel. Nelson v. Superior Court, 31 Wash. 32, 71 Pac. 601; State ex rel. Northern Pac. R. Co. v. Superior Court, 46 Wash. 303, 89 Pac. 879; State ex rel. Carrau v. Superior Court, 30 Wash. 700, 71 Pac. 648. Where the remedy by appeal is adequate, certiorari or other extraordinary remedy will not lie. State ex rel. Coplen v. Superior Court, 66 Wash. 225, 119 Pac. 383; State ex rel. Vincent v. Benson, 21 Wash. 571, 58 Pac. 1066; State ex rel. Washington Dredging & Imp. Co. v. Moore, 21 Wash. 629, 59 Pac. 505; State ex rel. Hibbard & Co. v. Superior Court, 21 Wash. 631, 59 Pac. 505; State ex rel. Townsend Gas & El. L. Co. v. Superior Court, 20 Wash. 502, 55 Pac. 933.

The legislature, in enacting § 4956, providing the remedy by appeal in election contests in the very same statute allowing a contest, must be presumed to have considered that remedy adequate in such cases. To hold that it is inadequate in this case is to hold that it is inadequate in any such case. It is, in effect, to repeal the statute, and declare a policy contrary to that expressly declared by the legislature upon a subject clearly within its province.

The decisions of this court cited by the relator are not pertinent to the case here. State ex rel. Meredith v. Tallman, 24 Wash. 426, 64 Pac. 759; State ex rel. Royse v. Superior Court, 46 Wash. 616, 91 Pac. 4, 123 Am. St. 948, 12 L. R. A. (N. S.) 1010. In each of these cases the remedy by appeal was held inadequate because, and only because, the term of office would expire before the hearing on appeal could be had. No such condition is found in the case before us. The other case cited, State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 Pac. 385, rests upon the same ground, namely, that the remedy by appeal was inadequate to preserve the fruits of the litigation if won.

The proceedings in contest here presented are not in quo warranto, either as at common law or as given by our analogous statutory action. The right to a contest such as here sought to be reviewed rests solely upon, and is governed by, the provisions of the particular statute providing therefor. Rém. & Bal. Code, §§ 4941 to 4957, inclusive. The section giving the remedy by appeal has never been repealed, either expressly or by implication. To entertain this writ, in the absence of anything distinguishing the proceedings from other election contests brought under the statute, would be a gratuitous assumption of the legislative function.

The motion to quash is granted, and the application is denied.

Parker, Crow, Main, Morris, Chadwick, and Gose, JJ., concur.