Lead Opinion
The opinion of the court was delivered by
Prior to the 23d day of August, 1898, tbe respondent was a member of the board of bealtb of tbe city of Spokane. On tbat day tbe mayor of tbe city transmitted to tbe council tbe following communication, viz.:
“ To tbe Honorable President and City Council:
“ Gentlemen—In accordance with Section 128 of tbe City Charter I hereby recommend tbe removal of Hr. E. L. Kimball as a member of tbe Board of Health, and respectfully ask tbat your Honorable Body sustain my recommendation. E. D. Olmsted, Mayor.”
“ There shall be a board of health, which shall consist of three physicians, who are entitled to practice their profession under the laws of this state, two of whom shall be physicians in active practice, to be appointed by the mayor and confirmed by the city council, who shall have supervision of all matters appertaining to the sanitary condition of the city and its public institutions. Any member of said board of health may be removed upon recommendation of the mayor, by a majority vote of all the members of the city council, or may be removed by the vote of two-thirds of the members of the city council without recommendation of the mayor after charges have been preferred.”
It is conceded that no charges were preferred against the relator, and the first question to be considered is, Do the words “after charges have been preferred” refer to the entire paragraph relating to removals, or only to removals attempted by the city council without the recommendation of the mayor ? A literal construction of the section makes it evident that the qualification does not extend back or relate
In our opinion, the superior court erred in construing this provision of the city charter and a reversal must follow.
Another question arises in the case and, because of its importance, we deem it proper to consider it. It goes to
In such a case it seems but reasonable that the law should require a form of procedure to be resorted to, which would require the incumbent of the office to be made a party and thereby enable him to be heard in his own behalf concerning his right to the office. Such a remedy is provided by chapter 2, §§ 5780 to 5787, inclusive, 2 Bal. Code (2 Hill’s Code, §§ 679-686), relating to information in the nature of quo warranto. Section 5780, supra, provides that an information may be filed “when any person shall usurp, intrude upon [into] or unlawfully hold or exercise any public office or franchise in this state, or any office in any corporation created by the authority of the state,” etc. The provisions of that chapter furnish a full, complete and adequate remedy, and, in our judgment, the only appropriate remedy afforded by the law in cases like the present one.
Dunbar and Reavis, JJ., concur.
Dissenting Opinion
(dissenting).—I am constrained to dissent from the conclusions reached by the majority of my associates in this case. It seems to me that it is neither a strained nor unreasonable construction of the section of the city charter, quoted in the majority opinion, to hold that the framers of that section only intended to authorize the removal of members of the board of health “after charges have been preferred.” It will be noticed that the mayor is not vested with the power of removal under any circumstances. The city council alone possess that power. The only thing the mayor can do, if he is dissatisfied with a member of the board of health, is to recommend his removal. And it is conceded by appellants—and properly so—that the council cannot remove such member even by a two-thirds vote of all its members until charges have been made against him, and notice thereof given; but they contend, and the majority of this court in effect says, that a removal may be made by a bare majority of the council, without notice or hearing, upon the recommendation of the mayor. I am unable to assent to this conclusion. In the first place, I am of the opinion that the words “after charges have been preferred,” occurring at the end of the section, refer to and qualify the first, as well as the second, part of the provision, and were intended to limit the power of removal to cases of misconduct or neglect of duty on the part of a member of the board. Sutherland, Statutory Construction, § 259.
In the second place, if I am not correct in my conclusion as to the effect which ought to be given to the concluding words of this section of the charter, then the power of removal without charges being made must have
“All statutes which encroach on the personal property or rights of the individual are to be strictly construed.” 23 Am. & Eng. Enc. Law, p. 383.
Did the provision of the charter last above mentioned authorize the removal of the respondent from his office without the filing of any charges against him? Or was his removal a matter resting in the discretion of the mayor and a majority of the city council? I see nothing-in the language of this provision of the charter warranting an affirmative answer to either of these questions; and I am therefore compelled to conclude that the action of the council, in this instance, was unauthorized and void. That a person should be condemned unheard, or without an opportunity of being heard, is contrary to natural justice, and repugnant to one of the established principles of the common law; and such an act cannot be sanctioned by the courts except by direction of positive law. I think the true doctrine upon the question of the power of a city council to remove a municipal officer was announced by the supreme court of Michigan in Hallgren v. Campbell, 82 Mich. 255 (46 N. W. 381, 21 Am. St. Rep. 557), wherein the court said:
*635 “We shall need to find in the charter of Menominee clear and unequivocal power vested in the council to remove this officer without notice before we can concede that any such power exists. . . . We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause; and, wherever cause must be assigned for the removal of the officer, he is entitled to notice and a chance to defend.”
In the case at bar it is admitted by the demurrer that the respondent was appointed as a member of the board of health for a definite term, and that he was removed before the expiration of his term, without notice, and without any charges having been preferred against him; and the charter under which the removal is claimed to have been made does not expressly declare that the power of removal is discretionary with the council. The facts in this case, it will be noticed, are quite similar to those in the case last-cited. It was also held in the late case of State ex rel. Welch v. Passaic Hospital Ass’n, 59 N. J. Law, 142 (36 Atl. 702), that when the law authorizes the removal of a person from office, but is silent upon the subject of charges, the party sought to be removed is entitled to notice, and must be given an opportunity to be heard upon charges presented against him. See, also, People v. McAllister, 10 Utah, 357 (37 Pac. 578); Pratt v. Board, 15 Utah, 1 (49 Pac. 747); Mechem, Public Officers, §§ 454, 455.
Uor do I think the respondent mistook his remedy. It is a generally recognized rule that mandamus will not lie to try a disputed title to an office, or to compel the admission of a claimant to an office of which he has not had the possession or discharged the duties, and the title to which is in dispute. But, where a person has been in the lawful possession of an office, and is entitled to it of right, and was illegally removed, a. different rule obtains. Under
Eullerton, J.—I concur in what is said by Anders, I.