7 Wash. 114 | Wash. | 1893
The opinion of the court was delivered by
O’Connell, the relator, was in December, 1892, elected road overseer of a district designated as 18, in King county, and qualified and entered upon his duties. On the 7th day of January following, the county commissioners made some change in certain of the road districts, by virtue of which that part of district 18 in which O’Connell resided was cut off therefrom, and was included in an adjoining district numbered 19, whereupon said commissioners appointed the respondent road overseer of said district 18, as changed. Upon the latter’s assuming his duties, O’ Connell brought this proceeding in guo warranto to determine his right to such office. A demurrer to the petition was sustained, and O’Connell appealed.
The constitutional provisions bearing upon this matter are as follows: By § 5, art. 11, it is provided that—
“The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of*115 county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties and fix their term of office. ’ ’
By § 6, of said article, it is provided that—
“The board of county commissioners in each county shall fill all vacancies occurring in any county, township, precinct or road district office of such county by appointment, .and officers thus appointed shall hold office till the next general election, and until their successors are elected and qualified. ’ ’
By § 1937, Gen. Stat., the legislature provided that—
“The boards of county commissioners of the several counties shall divide their respective counties into suitable road.districts, and may change the boundaries thereof not of tener than once a year.”
By § 1938 it is provided that—
“There must be elected in the several counties of this state, on the first Saturday in December, in the year eighteen hundred and ninety, and every two years thereafter, one elector of each and every road district in the county, to act as road overseer in their respective districts, to hold office for two years, commencing on the first Monday after the first day of January next succeeding their election, or until their successors are elected and qualified.”
By § 342, Gen. Stat., it is provided that—
“Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer: The death of the incumbent; his resignation; his removal; his ceasing to be an inhabitant of the district, county, town or village for which he shall have been elected or appointed, or within which the duties of his office are to be discharged,” etc.
By subdivision 9, § 1936, it is provided that the commissioners shall have authority to “remove any overseer for inefficiency, neglect of duty, or malfeasance in office.’’
The sole question presented for our determination is, whether by virtue of the change of the boundaries of said road district 18 by which that part of the original district wherein appellant resided was taken therefi’om and added to another distinct, a vacancy in the office of road overseer was created. If so, the commissioners had authority to appoint the respondent to fill the vacancy.
Appellant contends that if such a result is to follow, the effect of it will be to empower the boai’d of county commissioners of eveiy county in the state to subvert and practically nullify that provision of the constitution providing that such officers shall be elected, for the commissioners may, after each election, so change the road districts of their respective counties as to exclude the road overseers elected from the respective disti’icts whei’ein they at the time resided, and for which they were elected, and while it is conceded that the commissioners aforesaid have authority to alter road disti’icts, it is claimed that the same must be held to be prospective so far as the office of road overseer is involved. And some cases are cited as supporting this. State v. Holden, 45 Minn. 313 (47 N. W. Rep. 971); Brungardt v. Leiker, 42 Kan. 206 (21 Pac. Rep. 1065); People, ex rel. Jennings, v. Markham, 96 Cal. 262 (31 Pac. Rep. 102).
We are of the opinion that appellant’s position is well
Keversed and remanded.
Dunbar, C. J., and Anders and Stiles, JJ., concur.
IIoyt, J. — If the commissioners acted in good faith, I am satisfied that their action should stand, but under the broad allegations of the complaint the presumption of such good faith is perhaps negatived, though as to that point I do not now desire to express an opinion.