Passing all questions of procedure and the propriety and timeliness of the remedy invoked by respondents, as determined in the majority opinion, I am unable to yield my concurrence in the decision upon the construction of the statute in question.
Nor do I see any controlling effect in the provisions of the constitution that the legislature shall establish a system of county government which shall be uniform throughout the state; and that the legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners.
The legislature complied with the foregoing provisions of the constitution, established county governments throughout the state, which are uniform in structure and operation, providing for officers of the same kind in each and every county, of the same general qualifications, to take office at the same time, and perform generally the same duties. It also provided for the election in the several counties of boards of county commissioners.
The constitution does not control the establishment of the boards of county commissioners, except that the elections, qualifications, terms of office, etc., shall be uniform throughout the state. In complying with that constitutional provision, the legislature did, in 1890, provide for the division of counties into three districts and for the re-districting thereof, and that the lines of *Page 465 the districts should not be changed oftener than once in four years. Laws of 1890, p. 317. In 1893, the legislature amended that law, which is now codified in Rem. Comp. Stat., § 4037 [P.C. § 1686], the contents of which are quoted in the majority opinion.
By that amendment, the legislature did no more, and evidently intended no more, than that the board of county commissioners in each county should correct the boundaries of commissioners' districts in such counties, where there had been left one or more fractional voting precincts in any such districts, requiring the board of commissioners to re-district all such commissioners' districts, and in such cases, to re-district them so that each district should comprise, as nearly as possible, one-third of the population of the county and so that the territory comprised in any voting precinct should remain compact and not divided by the lines of such districts. The provision was then continued in effect that the lines of commissioners' districts should not be changed oftener than once in four years, etc.
The law is well settled that mandamus does not lie, except to compel the performance of manifestly plain legal duty. In this case, the motive and good faith of the board of county commissioners is not challenged. The wisdom or unwisdom of the re-districting statute in question is not for the court to determine; neither is the wisdom or unwisdom of the act of the board of county commissioners in dividing King county into commissioners' districts, as it has done, a question for courts. There are many miles of road in the outlying districts subject solely to the control of the board of county commissioners. In the urban portion of the county, the streets and thoroughfares are wholly within the control of city and state officers. The policy of dividing the county into districts is based on the *Page 466 supposition that members of the board ought to be more familiar with the local needs of their constituents. They ought to be in close touch with those they are likely to serve and whose business they administer.
While the law, as it stands, requires the commissioners to be chosen from districts, they are elected by the entire electorate of the county.
Nor, in my mind, are the cases cited, to sustain the opinion of the majority, authorities upon the question here.
The case of Harnett v. Sacramento County, 195 Cal. 676,235 P. 445, involved a statute of California, general and broad in its application, reading:
"`The board of supervisors may, by a two-thirds vote of the members of said board, change the boundaries of any or all of the supervisor districts of a county. Said districts shall be as nearly equal in population as may be. . . .' § 4029, Political Code of California."
It will be seen that, whenever a board of supervisors of a county in that state acted at all in re-districting supervisor districts, they were obliged to apportion the population as nearly equal as possible in each district. The law was of general and mandatory effect.
State ex rel. Fall v. Kelso, 46 Nev. 128, 208 P. 424, involved a statute which provided, in effect, that a certain percentage of qualified voters of any county should have the right to petition the board of county commissioners, on or before the first Monday in July preceding any general election, to divide the county into three districts, to be known as commissioner districts. The statute further provided that the districts should be made to conform to the established boundaries of election precincts or wards, and every election precinct or ward should be wholly within one of the commissioner districts. It was also provided that *Page 467 each district should embrace, as nearly as possible, one-third of the voting population of the county, to be determined by the vote cast at the last general election, and consist of adjoining precincts. It is obvious that, whenever the action of the board of county commissioners in any county was invoked in the manner provided by the law, if they acted at all, they were mandatorily required to divide the county into districts, each containing as nearly as possible one-third of the voting population of the county. Even the voting population is somewhat different from the total population of a county, for sections of a manufacturing district might contain a great number of transients and non-voters.
State ex rel. Ratner v. Jones, 114 Kan. 726, 220 P. 275, arose under a statute reading:
"`The board of county commissioners shall, on the day of the organization of the board or as soon thereafter as may be possible, meet and divide the county into three commissioner districts, as compact and equal in population as possible, and number them respectively 1, 2, and 3, and subject to alteration at least once every three years.' Kansas Gen. Stat. 1915, § 2539."
It is clear that that statute was mandatory in its terms, and presented a manifest duty on the part of boards of county commissioners which could be remedied by mandamus.
State ex rel. Hopkins v. Tindell, 112 Kan. 256,210 P. 619, involved the same statute. In that case, among other things, in denying the writ, the supreme court of Kansas said:
"Commissioner districts are created merely to define the territory from which the voters are to select commissioners; they have no functions to perform as governmental agencies. . . . *Page 468
"A writ of mandamus does not create a duty. It merely enforces one already in existence."
Codington County v. Board of County Commissioners, 47 S.D. 520,199 N.W. 594, was a case where the statute requiring districting in that state was not set out in full, but the court said:
"Upon an examination of section 5864 its chief object seems to be to require that the commissioner districts be compact and regular in form, and should contain about the same number of inhabitants."
From that reference to the statute, it should be assumed that the statute was as broad in scope and mandatory as that quoted from Kansas.
The Massachusetts case of Donovan v. Suffolk CountyApportionment Commissioners, 224 Mass. 598, 113 N.E. 598, was one involving a report of the commissioners elected under a statute dividing Suffolk county into representative districts and apportioning among them the number of representatives allowed under the statute. The reviewing judge (a single justice of the supreme judicial court of Massachusetts hearing the report of the apportionment commissioners), found such manifest disparities in equality of representation that, of course, he was compelled to set the apportionment aside.
Undoubtedly, the rule in that case would be followed, should this court ever have before it in some way the long disregarded apportionment, provided for under § 3, art. 2, of the constitution, of senators and representatives in the state legislature; should the apportionment be greatly unequal, it would be set aside.
It is clear to my mind that this involves nothing but a question of legislative and political discretion, as was held inMorris v. Favor, 134 Wn. 75, 234 P. 1040, and that, however imperfectly the legislature may have *Page 469 legislated, and however imperfectly the board of commissioners may have redistricted, it is no concern of the courts.
I therefore dissent.