2 Wash. 566 | Wash. | 1891
The opinion of the court ivas delivered by
— This case presents to our consideration two questkms: First, Does the complaint show that the respondent has sufficient interest in the office claimed to have been usurped, to entitle him to appear as relator in an information in quo warranto proceedings? Second, Did the mayor pro tern., by and with the consent of the city council, have the power to appoint the additional councilman? The law involved in these propositions was presented so ably and concisely by counsel on the respective sides that the court has been greatly aided in its investigations. It seems hardly necessary, for the purpose of this investigation, to consider the history of the ivrit, or of the information in the nature of quo warranto, further back than the statute of Anne (9 Anne, c. 22), ivhen the proceeding by information, which had before been a criminal proceeding, became the means of determining civil rights between private parties, and the rights which could before be investigated only through the interposition of the writ of quo warranto. Under that statute any one could prosecute the usurper of an office simply by leave of the court. The
In Murphy v. Farmers’ Bank, 20 Pa. St. 415, the court in rendering the opinion says the substance of the statute of Anne had been adopted before the Revolution as a part of the common law, and was a part of the law in Pennsylvania, and that the practice of the court was not affected by the statute of 1836. Mr. High had special reference to the statute of Anne, and to the discretion of the court, in § 681, cited by appellee, where he says:
“ The statute of Anne extended the remedy by quo warranto information, which had before been considered much in the nature of a prerogative one, to private citizens desiring to test the title of persons usurping or executing municipal offices and franchises, and rendered any person a competent relator in such proceedings who might first obtain leave of the court to file an information.”
State ex rel. Mitchell v. Tolan, 33 N. J. Law, 195, was tried under a statute giving discretion to the court to allow or reject the filing of the information. The judgment in State ex rel. Richards v. Hammer, 42 N. J. Law, 435, was based upon the same ground; and the court, in discussing this question, says:
“All that the court requires in such instance is to be satisfied that the relator is of sufficient responsibility,” etc.
In Churchill v. Walker, 68 Ga. 681, leave of the court had first to be obtained. In Com. ex rel. Yard v. Meeser, 44 Pa. St. 341, the statute was the same, and even with that statute the court reluctantly sustained the case by reason of some special act; for after expressing its reluctance, the court says:
“We observe that by the act of 24th April, 1854, § 3 (not cited to us in arguing these disputes, and not before*571 noticed by us), any tax-payer may obtain an injunction against any violation of the charter law of the city, and we may take this as a fair analogy for granting this writ.”
And then the court adds, “ especially as we can always prevent the abuse of it by the exercise of discretion,” etc. Thus it will be seen that the practice of allowing private individuals, who are not specially interested, to interfere with the public officers of the state is bottomed on the idea of the discretion of the court, and that the court can restrain any abuse that might otherwise flow from allowing irresponsible parties to make the state a party to their petty troubles and personal likes and dislikes. And the appellee seems imbued with this idea, for he says in his brief:
“It is important that we bear in mind that any evils that might arise from permitting the writ to issue at the instance of a private relator are properly and sufficiently guarded, since it can issue only in the sound discretion of the court.”
But we look in vain for any discretion given to the court by our statute. The common law on that subject has been supplanted by the statute — the state has legislated on the subject — and it is to the statute we must look, not only for the practice of the court, but for the qualifications of the relator. Section 702 provides that “an information may be filed against any person or corporation in the following cases” (subsequent subdivisions reciting the cases). Section 706 provides that “whenever an information is filed, a notice signed by the relator shall be served and returned as in other actions. The defendant shall appear and answer, or suffer default, and subsequent proceeding be had as in other cases.” There is no discretion given to the court, and, if discretion should be given to the court, the discretion should not go beyond the statutes. The statutes specify those who have the legal right to invoke
“Sec. 703. The information may be filed by the prosecuting attorney in the district court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the court or other competent authority, or by any other person, on his own relation, whenever he claims an interest in the office, franchise or corporation which is the subject of the information.”
The legislature has looked out for the interests of the public by providing that the information shall be filed by the prosecuting attorney, either on his own relation, or when directed by the court or other competent authority; and private interests are provided for in the latter part of the section by the Avords, “or by any other person on his own relation.” "When ? When he “ claims an interest in the office, franchise or corporation which is the subject of the information.” What interest is meant? Surely not an interest in common with other citizens, for the protection of that interest is already provided for in the first part of the section. If the statute is to be construed as having any meaning at all, and if Avords are to be given their ordinary meaning, and the ordinary grammatical construction is given to the language and sentences, it must mean that the interest must be a special interest, not common with the interests of the community. Section 705 confirms this view:
“Sec. 705. Whenever an information shall be filed against a person for usurping an office, by the prosecuting attorney, he shall also set forth therein the name of the person rightfully entitled to the office, with an averment of his right thereto; and Avhen filed by any other person he shall show his interest in the matter, and he may claim the damages he has sustained.”
Thus it will be seen that when the information is filed by the prosecuting attorney in the interests of the public,
The following sections; "Sec. 707. In every case wherein the right to an office is contested, judgment shall be rendered upon the rights of the parties, and for the damages the relator may show himself entitled to, if any, at the time of the judgment. Sec. 708. If judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office, after he has been qualified as required by law, and the court shall order the defendant to deliver over all books and papers in his custody, or within his power, belonging to the office from which he has been ousted. Sec. 710. When judgment is rendered in favor of the plaintiff, he may, if he has not claimed his damages in the information, have his action for the damages at anytime within one-year after the judgment,” — all convey the idea that where the relator is other than the prosecuting attorney he must show his interest, and will be entitled to damage if he prevail, showing conclusively that his interest must be a special interest, and that his damage would be equally distinct. It is not alleged in the complaint that the relator is even a tax-payer, so that the cases cited on that question are not in point, even if the law of this state should be construed to permit a taxpayer to become a relator in such case. He appears simply claiming the interest of a mayor. It is difficult to see what interest the mayor has in the office of a city councilman that any other citizen has not. He is interested in the rightful administration of the laws, but so is every other citizen. If he be a tax-payer he is interested in an economical administration, but so is every other tax-payer in the
As to the second proposition, it seems to us there can be but little controversy. The appointing power is given by the proviso to § 4 of the amendatory act of 1891, and is as follows;
“Provided, That the mayor or mayor pro tem, shall, on or before the 15th day of June, 1891, with the consent and approval of the city council, appoint the additional member,” etc.
There is no greater power conferred by this section on
It follows that the judgment is reversed, and the case remanded to the lower court with instructions to proceed in accordance with this opinion.