State Ex Rel. Austin v. Superior Court , 6 Wash. 2d 61 ( 1940 )

I am entirely in accord with the specific propositions of law laid down in the majority opinion, but the relator has raised a question which the opinion does not answer. It appears in relator's brief in the following language:

"6. May an officer serving a second term be ousted for a judgment based upon acts or omissions occurring during his first term of office?"

The authorities are said to be about equally divided upon this general question. I quote from the introduction to a note appearing in 17 A.L.R. at pp. 279-288, inclusive:

"The cases on the present question are in conflict. This is due in part to differences in statutes and constitutional provisions, but also in part to a divergence of views with respect to the question whether the subsequent election or appointment condones the prior misconduct. It cannot apparently be said that there is a decided weight of authority on either side of the question, although the courts and text-writers have sometimes regarded the weight of authority as denying the right to remove one from office because of misconduct during a prior term; and some courts which have held to the contrary have considered that the larger number of cases favored this view. As will be seen from this annotation, the cases, numerically considered, are nearly evenly divided."

After the citation of a number of authorities in the negative, it is said, generally:

"Although, as above shown, there are many cases which hold that misconduct in a prior term of office is not ground for removal of a public officer, there is an almost equal number of cases to the contrary effect, that such misconduct may constitute a ground for removal or impeachment."

In my opinion, many of the cases cited in this note, and particularly under the latter division, while entirely germane to the general subject of the note, are of no special assistance in solving the specific question presented by the instant case, which question is, in fact, a great deal narrower than the relator has stated it. Let us consider, for example, the case to which the note is appended, Attorney General v. Tufts,239 Mass. 458, 131 N.E. 573, 132 N.E. 322, 17 A.L.R. 274. At the time that case was decided, the general laws of Massachusetts provided:

"`A majority of the justices [of the Supreme-Judicial Court]. . . if sufficient cause is shown therefor and it appears that the public good so requires, may, upon a bill, petition or other process, upon a summary hearing or otherwise remove . . . a county commissioner, sheriff, register of probate and insolvency or district attorney.'"

Acting under the authority of this statute, the attorney general of Massachusetts brought a bill and petition to remove one Tufts from his office as district attorney. Tufts at that time was serving his second term. He moved that the hearing be limited to the acts alleged to have been committed since his last election, and whether or not the hearing should be so limited was the question before the court for decision. The court said, in part:

"Without at this moment making a final and complete statement of the law, it is enough to say that acts of such nature may be proved to have been committed by the respondent during his first term of office as to constitute `sufficient cause' for, and to make it appear `that the public good' requires his removal from office. The single circumstance of a re-election is not enough to prevent inquiry into acts alleged during the first term. Some of the charges referred to in the information relate to matters involving moral obliquity and positive crime of great magnitude committed in connection with the office of district attorney. If proven, they might be found to constitute sufficient cause why the person guilty of them ought no longer to hold that office."

In the instant case, the superior court has no such broad power or jurisdiction to inquire into whether or not the "public good" requires the removal of the relator. The scope of its inquiry is limited by the provisions of the statute under which it purports to act; that is, by Rem. Rev. Stat., § 9950, which, in so far as it is material here, reads as follows:

"Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer: . . .

"8. Whenever a judgment shall be obtained against such officer for breach of the condition of his official bond."

In my opinion, this language is not at all ambiguous, nor is the meaning and intent of the statute doubtful or obscure. The statute provides, in simple and direct language, that an office held by an incumbent shall become vacant before the expiration of the incumbent's term if a judgment be rendered against the incumbent "for breach of the condition of his official bond," not "an official bond" but "his official bond," which phrase, I take it, specifically designates but one bond, and that, the official bond covering the term which the incumbent is then serving and from which his ouster is sought. But, at all events, if the language of the statute be ambiguous and of doubtful meaning, and therefore subject to construction, the relator is entitled to the benefit of all doubts. State ex rel. Fletcher v.Naumann, 213 Iowa 418, 239 N.W. 93, 81 A.L.R. 483; In reDiehl, 47 Ohio App. 17, 189 N.E. 855. The statute is drastically penal in nature, since, as pointed out in the majority opinion, the judgment of ouster is self-executing. This being so, if the threatened judgment of ouster is entered against the relator, he will be immediately removed from his office and he cannot be restored thereto even though he should succeed in establishing, in his pending appeal of the conversion case, that he was wholly innocent of converting county property. State ex rel. Guthrie v.Chapman, 187 Wash. 327, 60 P.2d 245, 106 A.L.R. 640.

It clearly appears from the application and its attached exhibits, and from the respondent's return in this matter, that, unless this court interposes, the respondent, purporting to enforce § 9950 of the code, will enter a judgment ousting the relator from his office. In so doing, the respondent will, in my opinion, act in excess of the authority conferred by that or any other Washington statute. In this connection, I quote from 50 C.J. 666-667:

"Prohibition may properly be granted where the court or tribunal sought to be restrained is about to make an unauthorized application of judicial power in a matter otherwise properly cognizable by it. It is not essential that the court or other tribunal sought to be restrained be assuming to entertain some cause or proceeding over which it has no control. In other words, prohibition lies as well to prevent an exercise or unauthorized application of judicial force as an assumption of judicial power not granted by law."

Moreover, if the threatened judgment of ouster is unlawfully entered, the relator will have no adequate remedy of any kind in the ordinary course of law or otherwise, for no appeal, however successful or whatever its result, can effectuate his restoration to office. State ex rel. Guthrie v. Chapman, supra. Rem. Rev. Stat., § 1028 [P.C. § 8387], reads, in part, as follows:

"It [the writ of prohibition] may be issued by any court, except police or justices' courts, to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law."

The relator's application should be granted and the writ issued.

ON REHEARING. [En Banc. January 8, 1941.] PER CURIAM.

Upon a rehearing En Banc, a majority of the court adheres to the Departmental opinion heretofore filed herein.