56 Wash. 228 | Wash. | 1909
This action was instituted by the appellant to enjoin the city comptroller, who is ex officio city clerk of the city of Everett, a city of the first class, from certifying to the city council that a certain electors’ petition was sufficient and in conformity with the provisions of the city charter. The complaint avers that the appellant has been duly elected as a councilman to represent the sixth ward in the city, for the term ending the first Tuesday after the first Monday in January, 1910; that he qualified and is acting as such; that the respondent Gillman is the comptroller and ex officio city clerk; that certain electors, in accordance with section 281 of the city charter, presented to and filed with the comptroller a petition, asking for the recall of the appellant as councilman, for the alleged reason that he is using the influence of his position to revive a certain franchise to the prejudice of the city; that the respondent comptroller will certify to the city council that the petition is sufficient, unless restrained by an order of the court, and that, if a certificate is filed, the council will immediately order an election for the purpose of choosing a successor to the appellant. The charter of the city is attached to, and made a part of, the complaint.
The respondent Hulbert was permitted to. intervene as an elector and a taxpayer in the city.' The appellant demurred to the petition in intervention, and the intervener and the respondent comptroller severally demurred to the complaint
The appellant first contends that the intervener has no such “interest in the matter in litigation” as to entitle him to intervene under the provisions of Ballinger’s Code, § 4846. We think he is right in this contention. Without undertaking to define in what cases a party may intervene, we are satisfied that an elector and taxpayer has no such interest in the matter in litigation in this case as to warrant an intervention. There is no allegation in his petition that the comptroller will not appear and defend the action.- In Westland Publishing Co. v. Royal, 36 Wash. 399, 78 Pac. 1096, a suit against a school district upon an alleged contract, it was held that a resident and a taxpayer in the school district could not intervene. See, also, Pomeroy, Remedies & Remedial Rights (2d ed.), § 424; 17 Am. & Eng. Ency. Law (2d ed.), pp. 180-183; 11 Ency. Plead. & Prac., 446, 447. The demurrer to the complaint in intervention should have been sustained.
In accordance with the power contained in § 10, art. 11, of the constitution and the legislation enacted thereunder (Laws 1890, p. 215 et seq; Bal. Code, § 735), the city of Everett, having a population in excess of twenty thousand, adopted a charter for its own government. Under the provisions of § 281 of .the charter, certain electors of the sixth ward of the city, the ward represented by the appellant, filed with the comptroller a petition for the recall of the appellant and the election of his successor.' This section, so far as is necessary to a correct understanding of the case, provides:
“Sec. 281. The holder of any elective office may be removed at any time during, his' term by the electors qualified to vote for a successor of such incumbent. The procedure to
Section 31 provides that, “All officers elected at said first election as herein provided shall hold office until the first Tuesday after the first Monday in January, 1910, unless removed as in this charter provided.” Section 32 provides that, in all subsequent elections, “the term of office of every elective officer then elected shall then and thereafter be two years, unless removed as in this charter provided.” Section 25 provides that, “Any elective officer other than a member of the city council may be suspended by the mayor and removed for cause by the city council.” It then provides that inability or wilful failure properly to perform his duties, or the commission of a crime or misdemeanor involving moral turpitude, absence from the city for twenty days without consent, open failure or refusal to discharge his duties, the habitual use of intoxicating liquors to excess, or any permanent disability preventing the proper discharge of his duties, shall constitute cause for the removal of any elective officer; but that “the city council only shall have power to suspend or remove a member of that body,” which may be done for
Appellant’s first contention is that there is a conflict between the provisions of §§25 and 281 of the charter, in relation to the removal of a member of the city council, and that the former, being specific in its nature and relating to a particular subject, must control. A reading of the two sections in the light of the charter as an entirety discloses a clear purpose upon the part of the electors of the city to reserve to themselves the power to control the entire legislative and executive policy of the city. Section 282 provides that twenty per centum of the electors may propose and submit an ordinance to the council, and that it shall either pass the ordinance without alteration within a fixed time or submit it to a vote of the people. Section 283 provides that no ordinance passed by the council, except when otherwise required by the general laws of the state or by the provisions of the charter, except an ordinance for the immediate preservation of the public peace, health, or safety, which contains a statement of its urgency and is passed by a two-thirds vote of the council, shall go into effect before ten days from its final passage; and if during the ten days a petition, signed by ten per cent of the electors, be presented to the council, the ordinance shall be suspended and the council shall reconsider it, and if it is not entirely repealed it shall be submitted by the council to the vote of the electors and shall only become effective upon receiving the sanction of a majority vote. It is -apparent that there is no real conflict between the two sections. Section 25 provides for a summary removal of an elective officer for certain specific causes, whereas § 281 contemplates .a recall of the officer at any time that his oficial conduct is not responsive to the wish or will of a majority of the electors in his precinct or ward. Whilst this section.provides that the reason for the recall shall be stated in the petition, the charter does not provide that any specific reason shall be necessary
It is next urged that there is neither constitutional nor legislative authority for the recall provision. Section 10, art. 11, of the constitution provides that, “Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state.” We need not inquire whether this provision is self-acting, as the legislature has made ample provision for giving it effect. Laws 1890, p. 215 et seq. Our code (Bal. Code, § 740) which is § 6 of the Laws of 1890, provides that, in cities of the first class the mayor and members of the city council shall have the powers, shall be elected at the times, in the manner, and for the terms prescribed in the charter. As was said in Good v. Common Council of San Diego, 5 Cal. App. 265, 90 Pac. 44:
“The fixing of the tenure of office of the officers of a municipality subject to removal by the body that elected them is comparatively new in our system of government, and the interpretive branch of the law is in rather an undeveloped state on the subject.”
In discussing this question, it is pertinent to inquire for what term was the appellant elected. This inquiry is answered by the charter, and the answer is that he was elected
It is finally urged that the recall provision in the charter is violative of § 3, art. 5, of the constitution, which provides
The judgment will be affirmed as to the comptroller, and reversed as to the intervener, with directions to sustain the demurrer to Ins petition.
Rudkin, C. J., Fullerton, Chadwick, and Morris, JJ., concur.