the result by posting notice thereof in all the election precincts in the county." The statute also provides that the place selected to be the county seat of the county must be so declared in the notice mentioned in the section which we have just quoted, but this language evidently does not mean that the place selected by the board shall be the county seat, but the place selected by the people of the county and declared so selected by the board. The statute upon the subject is in perfect accord with the constitution, for that instrument declares that "no county seat shall be removed unless three-fifths of the qualified electors of the county voting on the proposition at a general election, shall vote in favor of such removal, and three-fifths of all the votes cast on the proposition shall be required to relocate a county seat." Const. art. 11, § 2. While the removal of a county seat necessarily involves the exercise of political or legislative power, it is thus seen that the people, the source of all political power, have not seen fit to leave the matter of removal to the unrestricted will of the legislature. And, although the legislature has delegated certain powers to the county commissioners, it has taken care to designate the character of their duties and the manner of discharging them. What, then, would be the consequence should a board of county commissioners in a given case declare a county seat removed without first ascertaining whether or not the legal and constitutional number of votes had been cast in favor of such removal? Would such a declaration effect a removal in spite of the contrary declaration of the constitution and the law? The contention of appellants is, in effect, that it would, but we think their position is untenable. If the county commissioners can cause the removal of a county seat by a mere declaration, unwarranted by the law or the facts of the case, then it was the extreme of folly on the part of the framers of the constitution to incorporate into the fundamental law the provision above quoted, and the legislature did a vain and useless thing when it enacted a law for their guidance. If there is no legal remedy for such a wrong, it were far better if this question had been left to their uncontrolled discretion.

But, since the law is otherwise, it becomes necessary to determine whether, upon the facts presented by the record, the court below was warranted in awarding the preliminary injunction of which appellants complain. We think it may be stated as a general proposition that every citizen has a right to be protected against the consequences of the illegal acts of all persons. If, therefore, the board of commissioners were not authorized, in this instance, by the facts and the law, to declare that the city of Everett had been selected as the county seat of Snohomish county, we must conclude that the respondent was entitled to be relieved, in some manner or form of action, from any injurious consequences which would result to him from the removal

of the county seat to that place. In Rickey v. Williams, 8 Wash. 479, 36 Pac. 480, this court affirmed the judgment of the lower court enjoining the removal of the county seat of Stevens county, on the ground that the board of county commissioners acted upon an insufficient petition in submitting the question to a popular vote, and it was also held in that case that a county officer whose office was required by law to be kept at the county seat might maintain an action to enjoin an illegal removal thereof,-that is, a removal attempted to be consummated by an illegal and void election. In this case, the petition upon which the commissioners acted seems to have been sufficient. At least, the trial court so concluded, and we see nothing in the record indicating error in that regard.

But it is alleged, in effect, in the complaint and proved by the evidence, that the board. of county commissioners never received, compared, or canvassed the returns of the election upon the question of the removal of the county seat. The proof fairly shows that neither the returns nor the poll books were ever in the possession of the board of commissioners. It is claimed, however, that a majority of the board were present at the canvass of the election returns made by the county canvassing board, of which the chairman of the board of county commissioners was, ex officio, a member, and by that means ascertained the result of the election on the proposition of removal. But there was no session of the board of commissioners during the time the county canvassing board was in session, and no such meeting could have been held unless the chairman of the board of commissioners was capable of acting as a member of two boards and discharging distinct duties at one and the same time, which we hardly think was possible. Mr. Evans, one of the county commissioners, knew nothing of any meeting of the board between the 16th and 18th days of December, and on the latter date the board were not in session to exceed 15 minutes. The orders we have mentioned, and which were entered upon the records, were prepared in advance of this meeting by a majority of the board, and were adopted as expeditiously as possible, evidently with the intention that no one should interfere to prevent the removal of the county seat to Everett. In the absence of the returns and the poll books, and without considering the returns from the precincts of Port Gardner and South Snohomish, the correct number of votes in which precincts they say they were unable to ascertain, two members of the board declared that the city of Everett had received more than three-fifths of all the legal votes cast upon the question of removal and thereby became the county seat of Snohomish county. The records of the board itself, as well as the evidence adduced at the trial, conclusively show that the number of legal votes cast upon the proposition was not ascertained by the board of county commis

sioners. And in that matter they were vested with no arbitrary, or even discretionary, power. They were commanded by the law to ascertain, from the returns, whether a sufficient number of votes had been cast to authorize the removal of the county seat, and not simply to declare that the required number had been cast.

In

The result of the election not having been ascertained, the pretended canvass and ascertainment by the board was not merely irregular, but absolutely void, and constituted no foundation or authority whatever for the order and declaration entered upon the records. So far as the location of the county seat is concerned, the effect of the election is neither greater nor less than if no election whatever had been held upon the proposition; and it follows, for aught that appears to the contrary, that the city of Snohomish is still the county seat of Snohomish county. And that being so, the question is: "Can a county officer and a taxpayer maintain an action to enjoin its removal and prevent the consequent illegal expenditure of public money? That he may do so, was determined by this court in Rickey v. Williams, supra. Crampton v. Zabriskie, 101 U. S. 601, the court said: "Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of a county may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the state courts in numerous cases, and from the nature of the powers exercised by municipal corporations, the great danger of their abuse, and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the application of the taxpayers of a county to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property holders."

Upon the authority of these cases, and many others which might be cited, as well as upon considerations of right and justice, we conclude that the court below properly interfered to prevent the consummation of a wrong which would otherwise have resulted from the unwarranted and illegal acts of the majority of the board of county commissioners. Moreover, it must be conceded that there is much force in the suggestion of counsel for respondent that section 6 of article 4 of the state constitution conferred jurisdiction upon the superior court to hear and determine this action. It is there provided that "the superior court shall have original jurisdiction

* of such special cases and proceedings as are not otherwise provided for." This provision of the constitution was not pressed upon the attention of this court or passed upon in either of the county seat cases above mentioned. The language there used is certainly

very broad and comprehensive, and might well be said to apply to cases of this character, as they are "not otherwise provided for," and, if contemplated at all, fall within the purview of this provision. At all events, it is manifest that it was not the intention of the framers of this section 6 to exclude any sort or manner of causes from the jurisdiction of the superior court. As what we have already said disposes of this case, it becomes unnecessary to enter upon a discussion of other points made in the briefs of the learned counsel for the respective parties. The judgment is affirmed.

HOYT, C. J., and SCOTT, J., concur.

DUNBAR, J. (dissenting). I am unable to distinguish this case from that of Parmeter v. Bourne, 8 Wash. 45, 35 Pac. 586, 757, and State v. Jones, 6 Wash. 452, 34 Pac. 201, and as, in my opinion, this court in. those cases decided the principles involved in this case in favor of the appellant, it follows that the judgment should be reversed.

(12 Wash. 420) STATE ex rel. SWERDFIGER v. WHITNEY et al. (Supreme Court of Washington. July 26, 1895.) REMOVAL OF COUNTY SEAT-CANVASSING VOTE

ESTOPPEL.

1. Gen. St. tit. 38, c. 3, providing that the county commissioners shall receive and compare the returns on an election for the removal of county seats, was not repealed by Act March 10, 1893 (Laws 1893, p. 271), creating a county canvassing board of election returns for all special and general county and state elections.

2. A canvassing board of election returns is not estopped, by having assumed to canvass the returns for vote on change of a county seat, from subsequently denying that they had authority to canvass such returns.

Appeal from superior court. Snohomish county; James G. McClinton, Judge.

Application on relation of D. S. Swerdfiger against L. C. Whitney, prosecuting attorney, and others, for writ of mandamus to compel defendants to canvass election returns for change of a county seat. From a judgment for issuance of the writ, defendants appeal. Reversed.

Crowley, Sullivan & Grosscup and Brown & Brownell, for appellants. Sapp & Lysons and S. H. Piles, for respondent.

ANDERS, J. The respondent and the appellants constituted the county canvassing board of election returns in and for Snohomish county, for the general election held therein on November 6, 1894. At that election there was submitted, among others, the question whether the county seat of Snohomish county should be removed from the city of Snohomish to the city of Everett. The board met and proceeded to canvass the returns from the various election precincts of the county, including those upon the

county commissioners with respect to the removal of the county seat? The appellant is a resident and taxpayer of Snohomish county, and, as such, undertook to prose cute an appeal from an order of the board of county commissioners of that county declaring the result of an election to remove the county seat, and from an order requiring the removal of the county offices to the place designated by the board. The superior court dismissed the appeal, on motion of the defendants, on the ground that the resolution and order complained of were not appealable. In so doing the appellant contends the court erred. He insists that he had an unquestionable right to appeal, under the act of March 11, 1893 (Laws 1893, p. 291), which provides that "any person may appeal from any decision or order of the county commissioners to the superior court of the proper county." This language is very broad and general; and, if it must be literally construed, his contention must necessarily prevail. But we do not think it should be so construed. If any person may appeal from any decision or order, every person may appeal, and we think there must be a limit somewhere. In reference to this provision, it was said by this court, in Morath v. Gorham, 11 Wash., 40 Pac. 129, that: "A literal construction of this part of our statute would compel us to hold that any man or woman in the county or state, or elsewhere, may appeal, regardless

*

of his or her relation to the matter in controversy; and we do not think the legislature intended, for a moment, to confer such an unlimited and universal right of appeal. It is a generally understood proposition of law, and presumably within the knowledge of the legislature when they enacted this section, that no one but a party to an action or proceeding can prosecute an appeal from a judgment or decision therein. Haynes, New Trials & App. c. 31. And we must presume that, when the legislature said 'any person may appeal,' they meant any person who has properly presented a matter before the board for their determination, and who is dissatisfied with their decision." This whole statute must be read together, in order to ascertain the legislative intention; and, when so read, it will be manifest that it was only intended to give the right of appeal to parties to ordinary proceedings before the board, or to persons directly interested therein. The words, "party appealing," are used several times in that portion of the act prescribing the manner of taking the appeal, which strongly tends to show that it was the intention that the person who appeals must be, in some way, a party to the matter in controversy. But, in this case, there are special reasons for holding that no appeal will lie from the order complained of. By the statute relating to the removal of county seats, duties are cast upon the board of county commissioners

which are separate and distinct from their ordinary and usual duties. In discharging them, it acts as the representative or agent of the legislature, by virtue of a special statute enacted for the sole purpose of clothing it with special powers, and which provides for no appeal. We think the general appeal act refers only to the usual proceedings of the board, and not to special proceedings under a special statute for a special purpose. The right of appeal is a statutory right, and, not having been given by the statute in this instance, we are of the opinion that it was the intention of the legislature that there should be no appeal from the proceedings of the board of county commissioners in the matter of the removal of a county seat. And the same doctrine has been announced by other courts in cases like this, and in others involving similar questions. Bosley v. Ackelmire, 39 Ind. 536; Board of Com'rs v. Smith, 40 Ind. 61; Ex parte Towles, 48 Tex. 413; Bowersox v. Watson, 20 Ohio St. 496; Fulkerson v. Stevens (Kan. Sup.) 1 Pac. 261. The judgment is affirmed.

HOYT, C. J., and DUNBAR, SCOTT, and GORDON, JJ., concur.

(12 Wash. 465)

THOMAS & CO. v. CITY OF OLYMPIA. (Supreme Court of Washington. .July 27, 1895.) CITY WARRANTS-PAYMENT FROM SPECIAL FUND -PROVISIONS IN CITY CONTRACT -CONSTRUCTION.

1. Where the contract for a city improvement calls for payment from a special fund, and the city officials in good faith and with care attempt to create such fund, the contractor cannot compel payment from the general fund of the city. on its failure to create the special fund. 2. Where the contract recites that in consideration of the issuance of warrants on a special fund, to be raised by assessment, the contractor waives his right to demand payment in any other way, the contractor waives his right to recover from the municipality for the negligence of its officers in failing to create the special fund.

Appeal from superior court, Thurston county; T. M. Reed, Judge.

Action by Thomas & Company, a corporation, against the City of Olympia, a municipal corporation. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Frank D. Nash, for appellant. A. J. Falknor and Preston M. Troy, for respondent.

HOYT, C. J. The object of this action was to establish a liability against the respondent for certain warrants issued to the contractor in payment for work done upon a contract for the grading of a street. These warrants were primarily payable out of a special fund which, it was provided by ordinance, should be created by an assessment to be levied upon the property to be benefited by the work. and it was claimed that, by reason of the negligence of the officers of the city in failing to create such fund, the city had become lia

ble to pay the warrants out of its general | fund. The respondent, after denying certain allegations in the complaint, set up, by way of affirmative defense, the alleged facts: (1) That at the time the contract for the work was entered into it could not have made a legal contract for the doing of the work at the expense of its general fund, for the reason that its indebtedness at the time exceeded the limit of debt which it was authorized to incur under the constitution of the state; and (2) that the assessment, upon the property benefited, of the cost of the improvement, had been made with care, and in perfect good faith, and that the failure to collect such assessment was owing to a decision of the supreme court of the state, and certain decisions of the superior court of Thurston county, which made such collection impossible; that on account of such decisions the city was proceeding at the time the answer was filed to make a new assessment upon the property benefited, for the purpose of collecting money to be placed in the special fund out of which the warrants could be paid. To these affirmative defenses the plaintiff demurred, and, upon its demurrer being overruled, elected to stand thereon, and suffered judgment to be entered against it.

The sufficiency of these defenses is the principal question involved in the appeal. The facts alleged therein are so similar to those which we held, in the case of Soule v. City of Seattle, 6 Wash. 315, 33 Pac. 384, 1080, to have been sufficient to relieve the city of liability, that we do not feel called upon to further discuss the question than to say that, in our opinion, it comes clearly within the principles decided in that case. The appellant attempts, in its brief, to distinguish that case from the one at bar, but we are unable to see any substantial difference between the facts therein presented and those presented by the affirmative defenses pleaded. It is true that that was a suit in equity, while this is one at law, but the character of the suit could have no influence in determining the question as to whether or not a given state of facts was sufficient to create a liability against a city for an alleged failure on the part of its officers to do their duty. It is claimed by the appellant that this court, in the case of Stephens v. City of Spokane (Wash.) 39 Pac. 266, in effect qualified the decision in the case of Soule v. City of Seattle. In our opinion such is not the effect of that case. All that the court there decided was that, under certain circumstances, the city would be liable for the negligence of its officers in failing to take any steps towards the creation of a special fund out of which certain warrants were to be paid. The special facts relied upon in the case of Soule v. City of Seattle, and set up in the affirmative defenses in the case at bar, were not before the court, and its decision could have no effect upon a case in which such facts were made to appear.

From the pleadings in the case at bar, it appears that in the contract for the doing of the work for which the warrants in question were issued there was a provision to the effect that in consideration of the issuing of such warrants for the work the contractor agreed that he would waive the right to demand and receive payment from the city in any other way; and it is contended on the part of the respondent that plaintiff is bound by such waiver, and that for that reason, if for no other, the judgment of the superior court was right. With this contention we must agree. If the city had a right to enter into a contract at all, it had a right to enter into one with such limitations as to its liability as the other party saw fit to agree to, and, if the contractor agreed that he would take his chances as to whether or not the warrants would be paid out of the special fund, there is no good reason why he should not be bound by such agreement. This provision in the contract could have been inserted for no other purpose than to relieve the city of the liability which in this action is sought to be asserted against it, and in the absence of a showing to the contrary it must be presumed that its insertion was agreed upon by the parties to the contract, and if it was it should be given force. The judgment must be affirmed.

SCOTT, ANDERS, and GORDON, JJ.,

concur.

DUNBAR, J. I concur in the result on the last ground mentioned in the opinion.

(12 Wash. 456)

GURNEY v. MORRISON et al. (Supreme Court of Washington. July 27, 1895.) PAROL EVIDENCE-ADMISSIBILITY-TO VARY LIA BILITY ON NOTE.

Where purchase-price notes are given under a written contract that the seller shall deliver the property to a corporation to be composed of the makers, parol evidence is inadmissible to show a contemporaneous agreement that the notes should not be binding on the makers after the corporation was formed.

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by J. Theodore Gurney against A. H. Morrison and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Dorr, Hadley & Hadley, for appellants. J. W. Rayburn, for respondent.

HOYT, C. J. Respondent brought this action to recover the amount due upon five promissory notes alleged to have been executed by the appellants. The execution of the notes was admitted by the answer, and by way of affirmative defense said answer set up the alleged fact that the notes were given for the purchase price of certain goods, and