(188 P.) 1. COUNTIES 178-NOTICE OF BOND ELECTION HELD SUFFICIENT. Notice of special election submitting question whether bonds for purpose of establishing and improving roads should issue sufficiently complied with Rem. Code 1915, § 5101-4, requiring notice to set forth "duration" of bonds where it stated, "Said bonds shall be payable within a period of twenty years from the date of their respective issues," notice as published referring to resolution of county commissioners containing detailed plan for issuing the bonds. 2. COUNTIES 183(1)-STATUTORY POWER TO ISSUE BONDS MORE STRICTLY CONSTRUED BE FORE THAN AFTER ISSUANCE. The courts generally more strictly construe statutory provisions authorizing the issuance of bonds in actions to prevent such issuance than is done in actions to prevent the payment of such bonds after they have been issued and negotiated. suance; specifically it was proposed to redeem the first series between the years 1925 and 1928, the second series between the years 1928 and 1932, the third series between the years 1932 and 1936, the fourth series between the years 1936 and 1940, and the fifth series between the years 1940 and 1943, by the payment on the principal thereof of certain fixed sums in each of the several years. A special election was called, and notice thereof given, in which the duration of the bonds was set forth in the following language: "Said bonds shall be payable within a period of twenty years from the date of their respective issues." At the election the requisite majority voting approved the issuance of the bonds. [1] Thereafter the county commissioner offered for sale the first series proposed to be issued, when the state board of finance made a bid for the bonds offering to take them at par, the bid being, however, conditioned upon the approval of the Attorney General of the validity of the proceedings leading up to the issuance of the bonds. When the transcript of the proceedings was submitted to the Attorney General, that officer refused to approve their legality, basing his objections upon the insuffiIt is a matter of common knowledge that ciency of the election notice, the objection the voter is principally interested in the amount being that the duration of the bonds and the of the proposed bond issue, the rate of interest fact that it was proposed to issue them serialwhich it bears, and the purpose for which the ly was not stated therein, whereupon the remoney so raised is to be used, and is but seldom lators brought this action as an original prosufficiently familiar with the methods of taxa-ceeding here, seeking a peremptory writ of tion to express an opinion upon the plan by which it is proposed to retire the indebtedness. 3. EVIDENCE 14 COMMON KNOWLEDGE THAT VOTER NOT INTERESTED IN PLAN FOR RETIRING INDEBTEDNESS. En Banc. mandate directed to the state auditor, requiring him to accept the bonds and deliver to relators a warrant drawn on the state the terms of the bid of the state board of finance. Original proceedings for writ of mandate treasurer for the value thereof, according to by the State, on the relation of Spokane County and others, against C. W. Clausen, State Auditor. Writ of mandate issued. [2] We are well aware that the courts generally more strictly construe statutory provisions authorizing the issuance of bonds in actions to prevent such issuance than is done Joseph B. Lindsley and Fred J. Cunningham, both of Spokane, for plaintiffs. L. L. Thompson, Atty. Gen., and R. Min actions to prevent the payment of such Burgunder, Asst. Atty. Gen., for respondent. TOLMAN, J. On May 16, 1919, the board of county commissioners of Spokane county, by resolution duly passed and spread upon the records, decided to submit to the voters of the county named the question of whether such board should be authorized to issue negotiable coupon road bonds of the county to the amount of $3,250,000 for the purpose of establishing and improving certain designated roads and improving certain roads then duly established. By resolution it was proposed to issue the bonds in series; specifically it was proposed to issue the bonds to the amount of $450,000 in 1920; $550,000 in 1921; $650,000 in 1922; $750,000 in 1923; and $850,000 in 1924. The resolution also provided for the redemption of the bonds in series according to their is bonds after they have been issued and negotiated. Cases are numerous in which it is held that the only power to issue bonds is derived from the statute, and any precedent condition which the statute imposes must be complied with fairly and substantially, and the voters are not empowered to delegate the power which belongs to them to the officers of a municipality to be exercised in their discretion. Stern v. Fargo, 18 N. D. 289, 122 N. W. 403, 26 L. R. A. (N. S.) 665. Following this rule, the Supreme Court of Montana, under a statute requiring the notice of elec tion to give the amount, the rate of interest, the time when payable, and the time when redeemable and the purpose for which the bonds are to be issued, held that a notice wholly omitting the rate of interest, time when payable, and the time when redeemable For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was insufficient. State ex rel. Stanford v. ¡ness. In fact, all too seldom does the voter School Dist. No. 1 of Cascade County, 15 consider that a day of settlement must come, Mont. 133, 38 Pac. 462. The Supreme Court of Oregon, under a statute which required the specifications of "the length of time they [the bonds] shall run" held that the specification, "to run not to exceed twenty years each," was insufficient. Elliott v. Tillamook County, 86 Or. 427, 168 Pac. 77. The reasoning in these and kindred cases might apply here were our statute in the same language, though possibly the fact that the notice as published here refers to the resolution of the board of county commissioners calling the election, in which was contained the details of the plan for issuing the bonds serially and retiring them as herein before stated to which as a public record, all had access, should have some weight. The statute under which relators as county commissioners here acted is Rem. Code, § 5101-4, which reads as follows: "The commissioners must give notice in some newspaper having a general circulation in said county for a period of at least four (4) weeks next preceding the date of the election, setting forth the proposition as to amount and duration of the bonds to be issued, and the rate of interest thereon which is not to be exceeded and stating in such notice the road or roads to be built or improved. Such notice need not describe the road or roads with particularity, but it shall be sufficient either to describe the same by termini and with a general statement as to the course of the same, or to use any other appropriate language sufficient to show the purpose intended to be accomplished. The commissioners may, at their option, give such other or further notice as they may deem advisable. When the bonds are issued they may be made to bear the rate of interest stated in the notice or any less rate." being generally far too prone to trust public officers to work out that problem, and usually he only resents conditions when it is too late to remedy them. The cure for this, however, lies in educating the voter up to his responsibility and not in defeating his will when fairly expressed at the polls. We must assume that the Legislature had in mind the conditions as they exist, and under those conditions deemed a general description of the life of the bonds sufficient, instead of a more specific one. We find no decided cases which directly meet the point here in issue, but the following in principle support our views: City of Oswego v. Davis, 97 Kan. 371, 154 Pac. 1124; Town of Lumberton v. Nuveen & Co., 144 N. C. 303, 56 S. E. 940; Fishblatt v. Atlantic City, 78 N. J. Law, 134, 73 Atl. 125; North v. McMahan, 26 Okl. 502, 110 Pac. 1115; Chicago, B. & Q. R. Co. v. Wilber, 63 Neb. 624, SS N. W. 660; Knight v. Town of West Union, 45 W. Va. 194, 32 S. E. 163; Village of Bronxville v. Seymour, 122 App. Div. 377, 106 N. Y. Supp. 834. In the Kansas case above cited, it is made to appear that the statute under consideration required the notice to state the amount of the bonds to be issued, while the notice as published named an issue not exceeding $30,000; and the notice was held sufficient upon the theory that the public officers, if prudent, would keep the expenditures as low as possible, and would issue no greater amount in bonds than would be necessary to accomplish the purpose sought. So here, the county commissioners, if prudent, will retire the indebtedness at as early a time as may be done without casting an undue burden upon the taxpayers, because an early retirement means a saving in interest payments, and is to the ultimate benefit of those who must pay the debt. The court says in the Kansas case, however: "It should be added, however, that in so important a matter as the issue of municipal bonds, the statutes authorizing them should be carefully studied and closely followed in all proceedings leading up to their registration. It ought to be the pleasure and pride of municipal officers that in matters like these their work has been so thorough and precise that the registration of their municipal bonds goes through without a hitch, rather than to have them merely scrape through on a test case on the ground that the proceedings are not altogether so irregular as to vitiate them." [3] The question here to be determined is just what is meant by the word "duration" as there used. Webster's New International Dictionary defines the word as "state or quality of lasting; continuance in time; the portion of time during which anything exists." Thus, we see, as compared to the language used in the statutes of Montana and Oregon, the word "duration" is a general term, and assuming, as we must, that it was used advisedly in the statute, it follows that, if the Legislature had considered the naming of a time certain when each bond would be payable and redeemable a matter of such importance as is here contended, it would have expressed itself in clear and specific terms. We are the more inclined to this view because it is a matter of common knowledge that the voter is principally interested in the amount of the proposed bond issue, the rate of interest which it bears, and the purpose for which the money so raised is to be used, and but seldom indeed is the average voter sufficiently familiar with the methods of taxation to express an opinion upon the plan by We reiterate this warning, because unless great care be exercised cases will arise in which this court will be obliged to reach a result which may cause loss, delay of needed improvements, and great public inconvenience not through any fault of the law. Under the familiar legal rule that the great (188 P.) that the language in the notice, "said bonds [ Fargo, 18 N. D. 289, 122 N. W. 403, 26 L. R. A. shall be payable within a period of twenty (N. S.) 665, in the last case, the court said: years from the date of their respective issues," sufficiently gives and describes their duration, as that word is used in the statute here under consideration, and by the use of the language quoted the statute was fairly and substantially complied with, The writ prayed for will issue. voting for a resolution definitely fixing the "The voters were to determine the amount by amount, or defeat any issue of bonds by voting against it. They were not to be called to delegate the power to the township committee to issue, in their discretion, bonds to the amount of $500 or $5,000. Under this statute no such discretionary power could be vested in the townHOLCOMB, C. J., and PARKER, FUI here solely in the voters, and they could not, as ship committee. * The power was vested LERTON, and MITCHELL, JJ., concur. * they did, by voting upon this resolution submitted to them, under the statute, for their determination, delegate the power to the township committee of exercising a discretion as to the amount. After the election, upon a proper resolution, the action of the township committee could only be ministerial so far as the amount to be issued was involved." It was upon the distinction I have attempted to draw that the election was upheld in the case of Town of Lumberton v. Nuveen & See, also, Co., 144 N. C. 303, 56 S. E. 940. Oswego v. Davis, 97 Kan. 371, 154 Pac. 1124. BRIDGES, J. (concurring). I think the statute vested in the board of county commissioners the power to determine the exact duration of the bonds authorized to be issued, and the question to be submitted to the voters was whether they would authorize the board to exercise such power. In other words, the voters are not to determine the date of issuance and the due date of the bonds, but are to determine whether they will authorize the board to so determine. Section 5101-1, Rem. 1915 Code, provides that the board may submit to the voters "the question whether the By the express provisions of the notice callsaid board shall be authorized to issue negoti- ing the election, the commissioners asked able coupon road bonds of the county" in cer- permission to exercise their judgment in detain amounts. Section 5101-2 provides that, termining when the bonds should be actually if at an election to be held the vote is in negotiated, and when they should become favor of the issuance of such bonds, then the payable, which period, in all events, was to commissioners must issue them, and "negoti- be within 20 years from date of issuance. ate or float the same in such manner as they This permission was given by more than the may deem to the best advantage of the coun-requisite number of voters; the commissionty," but at not less than par, and that such ers now have the right to exercise the power bonds shall become payable "at such time as so given. shall be stated therein, not more than twenty years after the date of issue," and shall bear interest at not to exceed 6 per cent. per annum. The proposition submitted to the voters was, in substance, shall the board of county commissioners be given the power to issue $3,250,000 of bonds at not to exceed 6 per cent. interest, to be payable at such time within 20 years from the date of issuance as the board might determine? To this proposition the voters assented. Upon this theory, the notice with reference to the duration of the bonds was, in my judgment, a substantial compliance with the statute. Almost all the cases cited as being in support of the idea that the notice was insufficient were under statutes which require the voters, not only to determine the amount of the bonds to be issued, but also the interest they should bear and the time they should become payable. Such statutes did not vest any discretion in the board or other official body. It must act purely in a ministerial capacity, and it must receive its powers exactly from the vote of the people. Such are the cases of Elliott v. Tillamook County, 86 Or. 427, 168 Pac. 77, Village of Canandaigua v. Hayes, 90 App. Div. 336, 85 N. Y. Supp. 488, and Stern v. (110 Wash. 82) STATE v. HOFFMAN. (No. 15666.) (Supreme Court of Washington. Feb. 27, 1920.) 1. STATUTES 241(1)-PENAL ACTS TO BE STRICTLY CONSTRUED. Penal statutes are to be strictly construed, and unless the language of the statute makes certain conduct criminal there can be no recourse to the intention of the act to establish such interpretation, for though conduct may be within the reason of an act and the mischief to be remedied, it cannot be punished if not so denominated by the statute. 2. FISH 13(1) OWNER OF LICENSE AND GILL NET WHO DID NOT FISH NOT CRIMINAL- The owner of a gill net fishing license for the Columbia river, and a fish boat and gill net, who failed to report March 31, 1918, the number of fish caught by him during the preceding four months, when he in fact had caught no salmon or food fish, did not violate Laws 1915, c. 31, § 52, as amended by Laws 1917, c. 169, § 11, requiring report of "fish caught during the preceding four-month period." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 Department 1. Appeal from Superior Court, Wahkiakum County; H. W. B. Hewen, Judge. W. M. Hoffman was convicted of being the owner of a gill net fishing license in the Columbia river and a gill net, and failing to report the number of fish caught by him, and he appeals. Reversed. G. C. & A. C. Fulton, of Astoria, Or., for appellant. J. C. McFadden, Pros. Atty., of Cathlalmet, L. L. Thompson, Atty. Gen., and Roscoe R. Fullerton, of Olympia, for the State. MACKINTOSH, J. The appellant was convicted upon an information charging him with the violation of section 52, c. 31, Laws of 1915, as amended by section 11, c. 169, Laws of 1917, in that, being the owner of a gill net fishing license for the Columbia river and a gill net, he failed to report on March 31, 1918, the number of fish caught by him durin the preceding four months. The appellant's contention is that there could be no conviction for the reason that he caught no salmon or food fish during the time referred to in the information; that it is not a crime for the owner of a gill net, having a license therefor, for the Columbia river, to fail to make a report when he had not operated the net. Sections 51 and 52 of the statute ter 169, Laws 1917) provide: Columbia river; that the appellant made no report to the fish commissioner. [1] In construing the provisions of the act as they bear upon the matter before us the fundamental rule that penal statutes are to be strictly construed is to be borne in mind. Unless the language of the statute makes the conduct of the appellant criminal there can be no recourse to the intention of the act to establish its interpretation. Though and the mischief to be remedied thereby, yet conduct may be within the reason of an act it cannot be punished as a crime if not so denominated by the statute. Lewis, Sutherland's Statutory Construction (2d Ed.) § 520. [2] The argument of the state that the Fisheries Code is a revenue measure and should receive such interpretation as to assist the fish commissioner in easily determining, by reports from license holders, the amounts of tonnage, taxes, and royalties to be paid by brokers, preservers, etc., considered in the light of the penal nature of the statute, fails of persuasiveness. Unless the language of the act clearly makes criminal the failure to file a report resort will not be had to the purpose of the act in construing it, even though that purpose would be best served by compelling such reports. Turning to the sections involved, we find the gill (chap-nets must be licensed, but need pay no additional fees, and the appellant argues that he cannot be prosecuted for failure to make a report whether he caught fish or not, for the reason that section 52 calls for the performance of two acts, one, to report, and, two, payment of fees, and that gill netters, not being liable for fees and the two acts being contemporaneous, failure to perform one alone would not be a violation of the section. The statute provides for a report from one who requires a license, and the fact that he may be exempt from additional fees does not absolve him from the necessity of reporting, and appellant cannot be relieved of the penalties attached to the one because of a statutory exemption from the other. The question then is narrowed to whether the act calls for a report from a licensee who had caught no fish, and the answer must be that no such report is necessary, for the language of the act calls for reports of "fish caught during the preceding four months' period, together with the "Every person, firm or corporation operating any of the fishing appliances herein before mentioned (except gill nets and set nets) which by the terms of this act are required to be licensed, shall, in addition to their license fees in this act provided, pay to the state for the food and shell fish taken from the waters thereof as follows: [Then follows a schedule of fees for all such appliances.] "Every owner of any fishing appliance, which by the terms of this act is required to be licensed, shall report to the commissioner under oath on blanks to be furnished by the commission, upon request, on the last day of March, July and November of each year for the four months preceding the date on which the report is made, stating the number of salmon, species stated separately, the number of crabs, sturgeon, pounds of smelt, herring, shrimps, clams and shad and other food fish caught during the preceding four months' period together with the name of the person, firm or corporation to whom such fish were sold, with the number and quantity delivered to each purchaser, and shall at the same time remit the license charges and the additional fees as by this act provided. * The agreed facts show that the appellant was the owner of a fish boat and gill net such as is ordinarily used on the Columbia river, and such as is referred to in chapter 169, Laws of 1917; that on April 1, 1917, the appellant was issued a gill net license effective between April 1, 1917, and March 31, 1918; that the appellant did not use his gill net name of the person to whom such fish were sold." There is nothing here in any way requiring a report simply as a report; the penalty is imposed for failing to report fish caught. The appellant committed no crime in not re porting either his abstinence from the use of his licensed appliance or his complete failure to catch a fish. The judgment of conviction is reversed. HOLCOMB, C. J., and PARKER, MITCH Department 1. has said that where the testator knows and comprehends the transaction in which he is engaged, and the nature and extent of the property which comprises his estate, and recollects the objects of his bounty, the disposition he makes of his estate will not be interfered with. The will in this case answers all of these requirements, and we, as well as the trial court, are satisfied it should not be disturbed. The judgment of the superior court is affirmed. HOLCOMB, C. J., and PARKER, MITCHELL, and MAIN, JJ., concur. (110 Wash. 120) Appeal from Superior Court, Pierce Coun- NEWPORT MINING CO. v. BEAD LAKE ty; M. L. Clifford, Judge. In the matter of the estate of Arthur J. Rutherford. From judgment sustaining de cedent's will, when offered for probate, on petition by his widow to set it aside, the widow appeals. Affirmed. Wm. H. Pratt and M. J. Gordon, both of Tacoma, for appellant. GOLD-COPPER MINING CO. (Supreme Court of Washington. March 3, 1920.) A location notice, which fails to recite that the property is located as abandoned property, Bates & Peterson and Sullivan & Christian, does not comply with Rem. Code 1915, § 7365, all of Tacoma, for respondent. MACKINTOSH, J. The deceased executed a will on February 28, 1918, which his widow is petitioning to set aside upon the ground that the deceased was incompetent to execute the will by reason of mental affliction. The testator died June 12, 1918, at the Western Washington Hospital for the Insane to which he had been confined for a few weeks. At the time of the execution of the will the deceased had been the owner of a small estate, the principal portion of which was represented by a life insurance policy in which his wife was named as beneficiary. A change of beneficiaries was made, and by the will the wife was to receive one half of the life insurance, the other half being given to three minor children. Evidence was produced by the contestant of the will and by those supporting its validity, and upon this conflicting testimony the trial court sustained the will, from which decision this appeal is taken. A review of the testimony would do no more than satisfy counsel that the court had read it, and would be of no benefit to any one, least of all to the parties interested in the litigation. The evidence does not establish a state of facts sufficient to justify the cancellation of the will, falling far short, as it does, of reaching the standard which this court has set for the declaration of testamentary incompetency. In Re Gorkow's Estate, 20 Wash. 563, 56 Pac. 385, and Hartley v. Lord, 38 Wash. 221, 80 Pac. 433, the court requiring that, when quartz or lode mining claims are located as forfeited or abandoned property, the location certificates shall state is located as abandoned property; such notice if the whole or any part of the new location therefore being invalid and insufficient. 2. MINES AND MINERALS 29(6) — PERSON WORKING CLAIM FOR LIMITATION PERIOD HAS VALID LOCATION. The general rule is that, where a person has held and worked a location and mining claim for a period equal to the time prescribed by the statute of limitations for mining claims of the state where it is situated, he has a right equivalent to that of a valid location. 3. APPEAL AND ERROR 1008(1)—FINDINGS OF TRIAL COURT ON TESTIMONY AS TO MINING LOCATION UPHELD. In a suit involving title to a mining claim, where the testimony frequently referred to stakes, points, lines, descriptions, etc., weight should be given to the findings of the trial court to whom the testimony was doubtless clear, though not easy for the Supreme Court to follow in reading the record. Department 1. Appeal from Superior Court, Pend Oreille County; Joseph N. Sessions, Judge. Action by the Newport Mining Company against the Bead Lake Gold-Copper Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed. Peacock & Ludden, of Spokane, for appel lant. Joseph Rosslow, of Spokane, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |