31 Wash. 213 | Wash. | 1903
The opinion of the court was delivered by
— This action is brought by the respondent to try title to the office of city engineer of the city of Spokane. The office of city engineer of said city is created by ordinance, and the ordinance creating the office provides that the incumbent may be removed from office upon recommendation of the mayor or board of public works, with the concurrence of a ¡majority of all the members of the city council, or he may be removed, without recommendation of the mayor or board of public works, by a three-fifths vote of all the members of the city council. In the fall of the year 1901 the respondent was appointed to the position of city engineer, and duly qualified. On February 18, 1902, the mayor recommended his removal, in the following message to the city council:
“I hereby recommend the removal of Allen F. Gill from the position of city engineer and nominate instead for said position Mr. Peter F. Byrne.”
Hpon the receipt of this message by the council, a motion was ¡made and carried to concur in the recommendation of the removal, the vote standing six for concurrence and four against. After the vote was taken, but before! the result was announced, councilman Baldwin, who had voted no, changed his vote to aye, and gave notice of his motion to reconsider the vote. A motion was thereupon duly made and seconded that the council confirm the appointment of the appellant, who was the person nom
The right of the council and mayor to remove the engineer in the manner in which he was removed has heen sustained by this court on principle in the case of State ex rel. McReavy v. Burke, 8 Wash. 412 (36 Pac. 281), and directly in the case of Kimball v. Olmsted, 20 Wash. 629 (56 Pac. 377). It is contended by the respondent that, inasmuch as he brought this action during the pendency of the motion to reconsider, this court must base its decision upon the title to the office as it existed at the time of the
The judgment is reversed, with instructions to the lower court to dismiss the cause.
Fullerton, O. J., and Mount, Hadley and Anders, JJ., concur.