Action by E. V. Wyant against the Independent Asphalt Paving Company and another. From an adverse judgment, the defendant named appeals. Affirmed.

Roberts & Skeel and J. J. Geary, all of Seattle, for appellant.

(203 P.) commencement of this suit had paid, or that any person for or on behalf of them, had paid, the $4,000 mortgage or any portion of it. It is true the Ellers assumed and agreed to pay this mortgage, and they have failed to so do, but the plaintiffs would not be entitled to the relief sought in this action until they had paid the mortgage, or some portion thereof; in other words, since they have not paid the mortgage or any portion of it, they have not, in contemplation of law, been injured.

The Judgment is reversed, and the cause remanded, with directions to sustain the demurrer of the defendants, Eller and wife, and with the privilege to the plaintiffs to amend their complaint.

Sidney Livesey and Richards, Fontaine & Gilbert, all of Yakima, for respondents.

PARKER, C. J. This action was commenced in the superior court for Yakima county by the plaintiff, Wyant, seeking the enjoining of the defendant paving company and the county commissioners of that county from proceeding with the construction work and the incurring of indebtedness under a contract between the commissioners

PARKER, C. J., and FULLERTON, MIT- and the paving company for the construction CHELL, and TOLMAN, JJ., concur.

(118 Wash. 345)

of a paved highway by the latter in local improvement district No. 16 of that county. The plaintiff, being the owner of land sought to be charged by special assessment to aid in paying for the proposed improvement, seeks such injunctive relief upon the theory

WYANT v. INDEPENDENT ASPHALT PAV- that the contract was unlawfully entered inING CO. et al. (No. 16548.)

(Supreme Court of Washington. Jan. 19, 1922.)

1. Time 6-Publication of notice Inviting bids held not two weeks' notice required.

Rem. Code 1915, § 5755, providing that the notice inviting bids on a local highway improvement shall be published for at least two consecutive weeks previous to the date of letting in one or more daily or weekly papers, was not complied with by publications on January 25th and February 1st when the bids were to be, and were, considered, and the contract actually awarded on February 7th, as two weeks did not elapse between the date of the first publication and the date of letting

the contract.

2. Evidence 383 (3)-Recital on record of notice inviting bids not conclusive.

A recital in the record of the county commissioners that due notice inviting bids on a local highway improvement was given before letting the contract was prima facie evidence, but not conclusive in the sense that it could not be rebutted by evidence. 3. Highways

113(3)-Statute as to notice

to between the commissioners and the paving company, in that the notice inviting bids therefor was not published for the period required by law prior to the awarding of the contract. The commissioners, having been advised a short time after the awarding and entering into of the contract that it was unlawfully made because of insufficient publication of notice inviting bids therefor, answered, admitting the facts as pleaded by the plaintiff, and prayed for the annulling of the contract and the enjoining of the prosecution of work thereunder by the paving Company, in substance as prayed for by the plaintiff. The paving company filed its answer and cross-complaint, wherein, by denials and affirmative allegations as against both the plaintiff and the commissioners, it seeks to have the contract adjudged to be a legal and binding one, and also seeks injunctive relief as against the commissioners to prevent their interference with the prosecution of the work. The case was submitted to the superior court upon an agreed statement of facts, and resulted in a judgment as prayed for by the plaintiff and the commissioners; from which judgment the paving company has appealed to this court.

inviting bids is mandatory. Rem. Code 1915, § 5755, providing that the notice inviting bids on a local highway improvement shall be published for at least two The controlling facts may be summarized consecutive weeks previous to the date of let- as follows: On January 24, 1921, after proting in one or more papers, and in such other ceedings duly had resulting in the creation manner as the board may see fit to direct, is of the local improvement district, the commandatory in so far as publication of the notice missioners duly passed a resolution in subfor two weeks is concerned, and noncompliance stance that sealed bids for the construction therewith invalidates the contract if injunctive of the proposed improvement within the disrelief is sought with a fair degree of prompt-trict, in accordance with plans and speci

ness.

Department 1.

fications theretofore prepared, would be received at their office in the courthouse "up

Appeal from Superior Court, Yakima Coun- to the hour of 2 p. m. on the 7th day of Febty; Geo. B. Holden, Judge. ruary, 1921," and directed the county audi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
203 P.-61

the

[1] This local improvement district was

tor to publish "due and legal notice" there- | record shows, before the paving company had of accordingly. "Pursuant to said resolution, done anything looking to the prosecution of the county auditor caused to be published in the work that would ultimately result in oththe Yakima Morning Herald notice that on er than a small loss to it. Monday, February 7, 1921, at the hour of 2 p. m., bids would be received in accord-created, and the proposed improvement thereance with said resolution; in is to be constructed under our law relatfirst publication of said notice was made on ing to the improvement of roads at the exJanuary 25, 1921, and the second publica- pense of property benefited; so we are to tion of said notice was made on February | look to that law for the authority of the 1, 1921, and no other publication of said no- | county commissioners in the inviting of bids tice was made or had. and the awarding of contracts for the construction of such improvements. It is therein provided that bids for the construction of such improvements shall be invited by the commissioners by causing the county auditor to publish a notice therefor, and that

"The notice shall be published for at least two consecutive weeks previous to the date of letting, in one or more daily or weekly papers published and of general circulation in the county, and in such other manner as the board may see fit to direct." Section 5755, Rem. Code.

We have seen that the notice given by the county auditor was published on January 25 and February 1; that "no other publication of said notice was made or had"; and that bids were to be, and were, considered, and the contract actually awarded, on February 7. So it is at once apparent that the notice was not published for a period of two weeks previous to the date noticed for the letting of the contract, and the date on which the contract was actually let and awarded by the commissioners to the paving company. In other words, the period of publication was in no event for more than 13 days, computing the period by the exclusion of the first day of publication and including the day of the awarding of the contract, putting aside in our present inquiry the question of whether or not the two publications were sufficient as to number of publications.

On February 7, 1921, the commissioners met at their office in pursuance of their resolution and the notice of the county auditor, duly published as they then supposed, and received bids for the construction of the improvement. Several bids were then received, opened, and considered by the commissioners. One of the bids was that of the paving company, which bid, being the lowest, was accepted and approved as such by the commissioners, and the contract was then awarded to the paving company accordingly. In the record of the commissioners' action in that behalf, they recited that "it appearing further that due notice of same has been given," referring to the publication of the notice by the county auditor, of the time and place of re ceiving bids. Thereafter, on February 11, 1921, the commissioners entered into a formal written contract with the paving company for the construction by it of the improvement. Thereafter a surety bond was furnished by the paving company as provided by the contract, which bond was approved by the commissioners. A short time thereafter the paving company commenced work upon the improvement. The paving company paid the premium necessary to procure its surety bond, and incurred other expenses in connection with the improve ment. The record, however, is silent as to the amount of expense incurred by the paving company in procuring its surety bond, or otherwise, in connection with the contract, prior to the commissioners' notifying the paving company that they had been advised by the prosecuting attorney of Yakima county of the illegality of the contract being the last of two such publications, satiscause of the insufficiency as to time of the publication of the auditor's notice inviting bids for the construction of the improvement. It seems certain, however, that comparatively very little had been done by the paving company in the incurring of expense by it, prior to such notice, which would result in ultimate loss to it. Thereafter the commissioners adopted and made a resolution and order canceling the contract, and providing for the inviting of new bids for the construction of the improvement. This action was commenced in the superior court on March 12, 1921, which, it will be noticed, was only one month after the making of the contract, and, we may add, as we think the

Counsel for the paving company argue that the use of the words "two consecutive weeks” in the above-quoted portion of the law means that two publications, a week apart, and the letting of the contract immediately follow

fies the law. We have at least two decisions of this court which we think hold to the contrary, touching a statute which reads almost literally, and which we regard as meaning exactly the same as this law in so far as we are here concerned with their meaning. In Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099, there was involved the validity of a sale of real estate by administrators under our probate statute, which required personal service of an order to show cause, or that such order "shall be published at least four successive weeks in such newspaper as the court shall order" (section 1495, Code 1881 [section 1500, Rem. Code]), as the jurisdictional process enabling the court to

(203 P.)

sive" or "consecutive" weeks. Our decisions determining the meaning of this language in the probate statute manifestly is controlling in our present inquiry.

order an administrator to make a sale of, that the meaning of these two statutory proreal property. The order there involved visions is exactly the same, except that one was not served personally. Its publication | relates to four and the other to two "succeswas relied upon. The publication was made once in each of four successive weeks, but four weeks' time did not elapse between the first publication and the date fixed in the show cause order fixing the time of hear- [2] Contention is made that, since the law ing upon the question of whether or not the does not provide for the making or preservsale should be ordered. Because of the wanting of any record of the publication of the of the lapse of four weeks between the first notice inviting bids, the recital by the com- . publication and the date stated for the hear-missioners in their record that "it appearing, it was held that the court failed to acquire jurisdiction to order the sale, and it was accordingly set aside at the suit of certain minor heirs. It may be thought that the holding of the sale to be illegal was because of want of appointment of a guardian ad litem for the minors, but manifestly the illegality of the sale was, in its last analysis, rested upon the want of jurisdictional process in the inception of the sale proceedings—that is, want of proper service by publication of the order to show cause why the sale should not be made-since the court would not have power to appoint a guardian ad litem for the minor heirs until it first acquired jurisdiction over them by the original process of an order to show cause, personally served or duly published. In Re Hoscheid's Estate, 78 Wash. 309, 139 Pac. 61, the meaning of the same statute was drawn in question, and the ruling in Ball v. Clothier adhered to, Judge Ellis, speaking for the court, observing:

"The respondent's first contention must be sustained. The statute governing the decree of distribution in probate proceedings (Rem. & Bal. Code, § 1589 [P. C. 409, § 595]), by reference to the statute governing the sale of real estate by an executor or administrator, provides that the decree shall be made only after notice of hearing has been 'personally served on all persons interested in the estate at least ten days before the time appointed for the hearing of the petition, or shall be published at least four successive weeks in such newspaper as the court shall order.' Rem. & Bal. Code, §§ 1499, 1500 (P. C. 409, §§ 395, 397). In this case, though, the notice was published four times, the first publication was on May 18, 1911, and the hearing was set for June 12, 1911. Less than four weeks elapsed between these dates. We have held such a notice insufficient to give the court jurisdiction to make an order of distribution. Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099; Teynor v. Heible, 74 Wash. 222, 133 Pac. 1, 46 L. R. A. (N. S.) 1033."

Now the language of these two statutes, touching the time of publication, except as to one word, in so far as we are here concerned with its meaning, is literally the same. The probate statute reads, "at least four successive weeks," while this road statute reads, "at least two consecutive weeks." It seems difficult to conceive of two different words more completely synonymous than "successive" and "consecutive." It follows

ing further that due notice of same has been given," referring to the publication of the notice inviting the bids becomes a conclusive determination that such notice was duly given. We may concede, for present purposes, that such recital in the record of the commissioners is prima facie evidence that such notice was duly given, and possibly would become conclusive of that fact had we no other evidence upon the question; but manifestly such recital is not conclusive in the sense that it is not rebuttable by evidence. And, since we find in the agreed statement of facts that "no other publication of said notice was made or had," whatever presumption may have resulted from the recital in the commissioners' record is entirely overcome, the same as if there had been absolute conclusive proof to the contrary of the recital.

[3] Contention is made that the abovequoted provision of the road statute, calling for publication of notice of receiving and opening of bids, is in any event only direcIts tory. We cannot so view the statute. language is plainly mandatory in form in so far as the publication of the notice for two consecutive weeks is concerned. The fact that the statute further provides that the commissioners may give such other notice as they see fit does not make this mandatory provision directory. We are not here called upon to determine just how this defect in the publication would affect the right of Wyant or the commissioners to assert the invalidity of the contract had they delayed their challenge to the sufficiency of the publication of the notice until after the completion of the improvement. It is not impossible that at such a time some element of estoppel might have in at least some measure stood in their way of making any such claim; but that is not this case. Here injunctive relief was sought with a fair degree of promptness-and for the courts to refuse such relief, under the circumstances shown in this case, would be to leave the commissioners free to ignore this plain, mandatory provision of the law, and invite bids for the construction of improvements of this nature in any manner they might choose. The judgment is affirmed.

FULLERTON, MITCHELL, BRIDGES, and TOLMAN, JJ., concur.

(118 Wash. 331)

STATE v. ASPELIN. (No. 16715.) Supreme Court of Washington. Jan. 19, 1922.)

1. Insurrection and sedition 2-Inviting others to join I. W. W. constitutes criminal syndicalism.

Since the crime of criminal syndicalism, as defined by Laws 1919, p. 518, is largely made up of the circulation of ideas naturally leading men into committing acts of violence against persons and property, the act of a member and organizer of the I. W. W., an organization within the prohibition of such law, in inviting others to join, is a violation of the statute.

2. Criminal law 1172(1)—Insurrection and sedition 2-Instruction defining "sedition" held erroneous as declaring theoretical discussion sufficient and prejudicial.

to advocate, advise, and teach crime, sedition, intimidation, violence, and injury as a means and way of effecting an industrial, economic, social, and political change."

The briefs were prepared before the various decisions of this court upon cases involving this statute, and most of the questions raised have been disposed of by the case of State v. Hennessy, 114 Wash. 351, 195 Pac. 211.

There was evidence introduced from which

the jury was justified in finding that the organization known as the I. W. W. comes within the prohibition of Laws of 1919, p. 518. The defendant was a member of the organization and one of its active exponents, being termed an “organizer," and at the time alleged he approached a group of laboring men including the men mentioned in the information, who were engaged in playing cards, and asked if any one cared to take out a red card. He did not get any en

In a prosecution under Laws 1919, p. 518, for criminal syndicalism by soliciting persons to join the I. W. W., an instruction that "sedition" means to speak or write against the char-couragement when he first addressed them, acter and Constitution of the government or seek to change it by any means except those prescribed by law was prejudicial error; the term "sedition," as shown by the accompanying words in the statute, "crime, violence, intimidation or injury," being used as meaning something more than theoretical discussion.

[Ed. Note. For other definitions, see Words and Phrases, Sedition.]

Department 2.

Appeal from Superior Court, Jefferson County; John M. Ralston, Judge.

Ed Aspelin was convicted of criminal syndicalism, and he appeals. Reversed, and new trial ordered.

but returned a little later and again said, "Is there anybody that wants to line up tonight?" whereupon one of the men at the table said that he would "take out a card tomorrow." The evidence further showed that both statements of the defendant were intended to mean and were understood to mean by the men addressed that they were invited to join and become members of the I. W. W.

[1] One new question now presented is whether the acts alleged and proved constitute a violation of the statute. It is argued in the brief of the appellant that these acts merely showed an intent to commit a crime, inasmuch as they were not successful in the result intended, and upon first impression the argument has some plausibility. We are satisfied, however, that they are something more than intent. This crime is largely Tom W. Holman, of Port Townsend, for made up of the circulation of ideas which the State.

Geo. F. Vanderveer and Ralph S. Pierce, both of Seattle, and Leslie B. Sulgrove, of Butte, Mont., for appellant.

HOVEY, J. Appellant was convicted and sentenced for the crime of criminal syndicalism under an information the charging part

of which is as follows:

"That he, the said Ed Aspelin, in the county of Jefferson, state of Washington, on or about October 23, A. D. 1919, then and there being, and then and there being a member of the Industrial Workers of the World, commonly known as the 'I. W. W.,' did then and there willfully, unlawfully, and feloniously give aid to the said Industrial Workers of the World, which was then a group of persons formed to advocate, advise, and teach crime, sedition, intimidation, violence, and injury as a means and way of effecting an industrial, economic, social, and political change, by then and there soliciting one Frank Taylor and one Matt McDonald then to secure cards of membership in, to join, to become members of and to espouse the aim, purpose, and object of said Industrial Workers of the World, then so a group of persons formed

have for their natural result the leading of men into committing acts of violence against persons and property. The basic principle is the entire overthrow of the existing order of things, and the literature shows quite

clearly that in the obtaining of this result all restraints are to be abandoned. The use of the political methods afforded by law efficient, and what is called direct action is are expressly discountenanced as being inmade a cardinal principle. In passing this act the Legislature evidently deemed it necessary to put a stop to activities which would naturally result in crimes against persons and property and made the mere membership in such an organization a crime. As charged and proven to the satisfaction of the jury, the defendant was such a member, and, while that is not the crime of which he was convicted, yet his status as such would make any act of his in inciting others to join to have the nature of giving aid to the organization.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(203 P.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes