154 PACIFIC REPORTER

(Wash.

eral election, and until their successors are elect- is sufficient to authorize the appointment. ed and qualified."

It is apparent that this section does not control in this case, because at the time of the appointment by the Governor, the offices of all three of the commissioners of Yakima county were vacant on account of the election of October 6, 1915. There is no other provision of the Constitution directly referring to the manner in which the office of county commissioners may be filled when all of such offices become vacant at one time.

In the case of State ex rel. Pendergast v. Fulton, 37 Wash. 271, 79 Pac. 779, where one vacancy had occurred, and the Legislature had passed an act authorizing the judge of the superior court to act with the remaining members of the board of county commissioners, it was held that the act was in violation of the provisions of the Constitution above quoted, and that it was the duty of the remaining commissioners to fill the vacancy.

We

discussion as to the proper construction of
We think it is not necessary to enter into a
these two constitutional provisions.
think it is plain that, if the Legislature was
in session, and a vacancy should occur in a
county office for which the Constitution made
no provision to fill, the Legislature might
fill such vacancy.

24 Wash. 549, 64 Pac. 717, this court held In the case of Farquharson v. Yeargin, county, might authorize the Governor to apthat the Legislature, in the creation of a new point commissioners for the new county, and that such authorization was not in contravention of the Constitution. It follows from that decision that, if all the commissioners of a county are recalled, or for some reason all three of the commissioners' offices should become vacant upon the happening of some contingency, the Legislature would clearly have a right by legislative act to authorize the Governor to fill such offices by appoint

The Constitution, at section 5 of article 3, ment on account of the emergency. provides as follows:

"The Governor may require information in writing from the officers of the state upon any subject relating to the duties of their respective offices, and shall see that the laws are faithfully

executed."

Section 13 of that article provides: "When, during a recess of the Legislature, a vacancy shall happen in any office the appointment to which is vested in the Legislature, or when at any time a vacancy shall have occurred in any other state office for the filling of which vacancy no provision is made elsewhere in this Constitution, the Governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified."

The Legislature of 1890 passed an act relating to the general powers and duties of the Governor (Rem. & Bal. Code, § 8988), which provides:

"In addition to those prescribed by the Constitution, the Governor has the power and may perform the duties prescribed in this and the following sections: offices are filled, and the duties thereof perform* (2) To see that all ed, or in default thereof, apply such remedy as the law allows; and if the remedy is imperfect, acquaint the Legislature therewith at its next session."

the business agents of the county, and the The county commissioners of a county are ordinary business of a county cannot be conducted without their authorization. It follows that, when all the offices of county commissioners in a county become vacant, government, and there must be some power there is necessarily a cessation of county lodged somewhere to prevent such hiatus. This has been done by the Legislature. The act of 1890 above referred to provides that, in addition to the powers prescribed by the Constitution, the Governor has power "to see that all offices are filled, and the duties thereof performed." this act, and that, where there is no proviWe think it is plain that the Legislature had the right to pass sion in the Constitution for the appointment of commissioners of a county, and where a majority of the offices of the board of county commissioners become vacant, then it is within the power of the Governor to fill such clear that it is not necessary to further invacancy by appointment. This seems SO quire into the subject, or discuss decisions have no doubt that, under the statute of 1890, from other states upon the question. We the Governor was authorized to make the appointments which he did make, and that these officers are de jure officers, and are qualified county commissioners of Yakima county.

It is contended by the respondent that the provision in section 5 of article 3 of the Constitution, above quoted, that the Governor "shall see that the laws are faithfully executed," is sufficient to authorize the appointment of county commissioners, under the circumstances in this case, and that section 13, to the effect that, when during a recess of the Legislature a vacancy shall happen in any office the appointment to which is vested in the Legislature, the Gov- FULLERTON, PARKER, HOLCOMB, and MORRIS, C. J., and ELLIS, CHADWICK, ernor shall fill such vacancy by appointment, MAIN, JJ., concur.

affirmed.
The judgment appealed from is therefore

The term "extreme low tide" is used in Laws 1911, p. 130, § 1, subd. 2, redefining "tide- Action by the State against J. H. Scott and

others. From judgment for defendants, reserves, and subject to such right, title, or plaintiff appeals. Reversed and remanded, interest as may have been acquired by the with directions.

purchaser of any part of said lands as tide

W. V. Tanner, R. E. Campbell, and Lindsay lands suitable for the cultivation of oysters L. Thompson, all of Olympia, for the State. under any deed or contract heretofore issued Gordon & Easterday, of Tacoma, for respond-by the state of Washington."

ents.

answer.

Much testimony was introduced of experts from observations taken at the pothole and and testimony of witnesses long acquainted as to general tide conditions on Puget Sound with the pothole as to whether it has ever been entirely uncovered at the lowest tides, all with the view of determining whether, in fact, the pothole lies below the plane of ex

treme low tide.

of the land as we have outlined it, and that The court found, in substance, the situation the defendants had at all times since July, peaceable possession of the pothole, paying 1900, been in open, notorious, exclusive, and all taxes thereon since that time; that the land described as the pothole lies above the line of extreme low tide; that the state of this action was commenced, own the pothole Washington does not now, and did not when or any portion thereof; and that it had failed to establish the material allegations of its complaint. Upon these findings and appropriate conclusions of law the court entered a decree denying to the plaintiff the relief prayfor and dismissing the action. The plaintiff appeals.

upon which the respondents rely conveyed no The appellant contends: (1) That the deeds title to the pothole, in that the pothole is not in front of and adjoining the upland or any tidelands of the second class owned by the defendants in front of and adjoining the upland; (2) that the defendants acquired no title to the pothole by any of these deeds, because the evidence shows that the pothole is below the line or plane of extreme low tide. The first of these contentions presents a question of law; the second a question of fact.

ELLIS, J. This is an action by the state of Washington to recover possession of and quiet title to a portion of the bed of Puget Sound, commonly known and referred to in the record as the "pothole," and to enjoin the defendants from trespassing thereon. The defendants admit that the state upon its admission into the Union acquired title to the pothole by virtue of section 1, art. 17, of the state Constitution, whereby the state asserted title to the beds and shores of all navigable waters within its boundaries. They contend, however, that the state conveyed the pothole to them by certain deeds of secondclass tidelands which are pleaded in their The state admits the issuance of the deeds, but denies that they conveyed the pothole or any part of it. The evidence shows beyond question that the pothole and the channel leading out of it to deep water lie below the line of mean low tide. Between the pot hole and the strip of tidelands lying in fronted of and contiguous to government lots 3 and 4 are situate certain tideland tracts or oyster claims forming a continuous chain, deeded to Jim Simmons, J. A. Gale, and J. H. Tobin for oystering purposes. These oyster claims were deeded under the provisions of chapter 25, Laws of 1895 (Rem. & Bal. Code, §§ 6806, 6807), commonly known as the Callow Act. We shall hereinafter refer to them as the Callow Claims. The deeds upon which the defendants rely as conveying to them the pothole are: First, a deed from the state dated March 18, 1911, conveying to the defendant J. H. Scott "all of the tidelands undisposed of by the state situate in front of, adjacent to, and abutting upon lot 3, section 22, township 19 north, range 3 west"; second, a deed from the state dated June 18, 1901, conveying to the defendant J. H. Scott "all that portion of the tidelands of the second class owned by the state of Washington, situate in front of, adjacent to and abutting upon lot 4, section 22, township 19 north, range 3 west"; third, a deed from the state dated June 6, 1911, to both defendants, conveying "all tidelands of the second class owned by the state of Washington lying between the line of mean low tide and the line of extreme low tide and in front of lots 1, 2, 3, and 4, section 22, township 19 north, range 3 west, W. M., with a total frontage of 81.81 lineal chains, more or less, measured along the meander line, according to a certified copy of the government field notes of the survey thereof on file in the office of the commissioner of public lands at The second deed of June 18, 1901, likewise Olympia, Wash., excepting such portions of carried title only to the line of mean low tide. said tidelands as are included in state oyster | It was made in pursuance of a purchase

were initiated by purchase of the tidelands [1] 1. At the time that the first two deeds therein described, tidelands were defined by

statute as follows:

*

ebbs and flows from the line of ordinary high "Tide Lands.-All lands over which the tide tide to the line of mean low tide, and excepting oyster lands." Chapter 89, § 4, p. 230, Laws 1897; 2 Rem. & Bal. Code, § 6641.

See Pearl Oyster Co. v. Heuston, 57 Wash. 533, 107 Pac. 349, 832, 135 Am. St. Rep. 1007.

The first deed, though issued on March 18, 1911, was made in pursuance of a purchase by George C. Israel from the state on July 7, 1900, long before the act of 1911, to which we shall hereinafter refer, had extended the outer line of the state's tidelands to the line of extreme low tide. It is clear, therefore, that this deed conveyed only what Israel had purchased, and carried title no further than to the line of mean low tide.

long antedating, and itself long antedated, the extension act of 1911. These two deeds are limited by the express terms of the statute defining tidelands then in force to lands above the line of mean low tide, and excepting oyster lands. Pearl Oyster Co. v. Heuston, supra. They did not convey any of the lands theretofore deeded under the Callow Act. This court specifically so held in Scott v. Olympia Oyster Co., 63 Wash. 364, 115 Pac. 737.

Construed in relation to its facts, the Lehman Case does not sustain the appellant's contention. That case merely holds that lands “in front of" the limits of an incorporated city or town included only such lands as were adjoining and in front of such city or town on the same side of the channel of navigable, water, and that the term was not used in the absolute or geographical sense which would include all tidelands lying between the side lines of the city extended to infinity so as to [2] At the time the third deed above re-embrace tidelands on the other side of the ferred to was issued the outer line of the state's tidelands had been extended. "Tidelands" were then defined by statute as fol

lows:

"Tide Lands.-All lands over which the tide ebbs and flows from the line of ordinary high tide to the line of extreme low tide, except in front of cities where harbor lines have been established or may hereafter be established, where such tide lands shall be those lying between the line of ordinary high tide and the inner harbor line and excepting oyster reserves." Chapter 36, 81, subd. 2, p. 130, Laws 1911; 3 Rem. & Bal. Code, § 6641.

It is obvious that but for the exception of lands theretofore deeded the description in the third deed would have carried title to the line of extreme low tide, wherever that may be. It is equally obvious, as it seems to us, that with the exception it carries title to all of the tidelands to the line of extreme low tide, save those excepted. The appellant contends, however, that this deed, when construed in accordance with the law of 1911 pursuant to which it was made, conveyed nothing beyond the intervening Callow grants. The purchase was under the preference right accorded by section 2 of the act of 1911, which provides:

channel. Though it defines the words "in front of" as meaning "immediately in front of, that is, adjoining," this definition is plainly intended as a conclusion from what precedes it. So read, it is clearly meant to apply to the whole body of tidelands on the given side of the channel, without regard to segregated ownership, that is, all lands in front of and adjoining in the sense of lying on that side of the channel. We cannot adopt the view of the Attorney General that the Callow Act claimants are owners of tidelands "theretofore sold and conveyed" within the meaning of the act of 1911 so as to be entitled to the preference right to purchase the tidelands in front of those claims lying between the lines of mean low tide and extreme low tide under that act. Though they had such a right as prevented their claims from passing by the state's tideland deed, and such, in fact, that the state could not convey their land at all without first declaring a forfeiture of their claims for cause, they did not hold the fee-simple title. Scott v. Olympia Oyster Co., supra. On principle it would seem that nothing short of a fee-simple title could be a sufficient basis for the preference right to purchase in fee simple the frontal tidelands between mean low and extreme low tide. The case of Bleakley v. Lake Washington Mill Co., 65 Wash. 215, 118 Pac. 5, cited by appellant in this connection, goes no further than to hold that lands located below the line of high water and above the meander line on the shore of Lake Washingand hence subject to overflow, when patented by the government prior to statehood, and thereafter owned as private property, is not "shore land," within the meaning of the statute, but is to be regarded as upland by force of the government's survey and patent in fee, the ownership of which carries the preference right to purchase unpatented shore lands belonging to the state and fronting or abutting upon the patented land. The patented land, though actually overflow land, being by legal convention upland, carried as an incident the preference right of purchase to its owner in fee simple.

"That the prior and preference right to purchase all tide lands of the second class lying between the line of mean low tide and the line of extreme low tide in front of all tide lands of the second class heretofore sold or conveyed by the state of Washington is hereby granted for the period of ninety days from the date this act goes into effect to the purchasers, their grantees or successors in interest of any tide lands of the second class heretofore sold or conveyed by the state of Washington. Chapter 36, 2. p. 130, Laws 1911; 3 Rem. & Bal Code;ton,

6641-1.

*

Appellant insists that the words "in front of," contained in this section, mean "adjoining," quoting in support of that claim from State ex rel. Lehman v. Bridges, 24 Wash. 363, 64 Pac. 518, where it is said:

"From a geometrical point of view in front of might include everything between the prescribed line and infinity; but, as applied practically to measurements on the surface of the earth, we believe it can only mean immediately in front of, that is, adjoining."

It is argued that, under that decision, the third deed above mentioned did not convey to the respondents any lands outside of the Callow claims, in that lands outside of those claims lay in front of, that is, adjoining the Callow claims, and not in front of or adjoining the tidelands of the respondents lying be

We fail to see wherein the case of State v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 Pac. 650, also cited by appellant, when confined to its facts, has any bearing on the question before us. That case involved accretions or relictions resulting from the low