State ex rel. Forstell v. Otis

Mackintosh, J.

This is an action in mandamus. The petition alleges that the petitioner is the regularly elected councilman from the second ward of the city of Olympia and that he holds a certificate of election, under which he took his seat and represented his ward from the time of his election in 1920 until some time in January, 1924, at which time the mayor of the city refused to recognize the petitioner as councilman or to allow him to perform his duties as such, although his term had not yet expired, giving as his reason that the petitioner had moved his residence from the second ward. There are other allegations of the petition which set out in detail the actions of the mayor and his successor, the respondent in this action. The petition further alleges that the petitioner is in all respects duly qualified to sit and act as councilman, and asks that, by writ of mandamus, the respondent, as mayor pro tern, be required to permit the petitioner to,continue to sit in the council meetings and do all things he is entitled to do as a regularly elected and duly qualified councilman.

To this petition the respondent made return and answer, denying the material allegations of the petition and setting up by affirmative defense that, subsequent to December, 1920, the date of the petitioner’s certificate of election, the petitioner had moved his residence from the second ward of the city of Olympia and taken up his residence in another ward, and thereby he had disqualified himself as the councilman of the second ward and his office as such councilman had thereby become vacant; that the mayor and the respondent had refused to recognize the petitioner and to allow him to perform his duties as councilman, for the reason that the office of councilman in the second ward had become vacant by virtue of the petitioner’s act, before set out. A motion and demurrer were interposed by the petitioner to the return and answer, which were denied and overruled, whereupon the respondent made a motion to dismiss the action for the reason that the pleadings showed a contest with reference to the right and title to an office, and consequently mandamus would not be the proper remedy, which motion the court granted, and the petitioner has appealed from that decision.

The sole question in this case is whether the petitioner has mistaken his remedy; whether the relief which he seeks is to be obtained through mandamus or quo warranto.

Section 1014, Rem. Comp. Stat. [P. C. §8187], on the subject of mandamus, provides that it may be issued to compel the “performance of an act which the law expressly enjoins as a duty resulting from an office . . . or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.” The case of State ex rel. Winsor v. Mayor & Council of Ballard, 10 Wash. 4, 38 Pac. 761, is relied on as sustaining the right to the writ. An examination of that case, however, shows that, upon the face of the record there, an illegal attempt had been made to remove the petitioner, who was a member of the city council of the city of Ballard. Under such a record, no examination was necessary to determine who was entitled to the office* and it clearly appearing that the petitioner was so entitled, he conld enforce his rights by writ of mandamus.

This court has many times held that, wherever the title to an office, or the right to it, is involved, and where it is necessary to determine from the facts outside the pleadings as to who is entitled to the office, mandamus is not the proper remedy, but that the person claiming the office must resort to quo warranto. It is true that in most of those cases there has been a contest between two claimants to the same office, whereas, in the case at bar, no successor having been elected to the petitioner’s office, there is no one other than he claiming the office. State ex rel. McReavy v. Burke, 8 Wash. 412, 36 Pac. 281; State ex rel. Heilbron v. Van Brocklin, 8 Wash. 557, 36 Pac. 495; State ex rel. Blake v. Morris, 14 Wash. 262, 44 Pac. 266; Lynde v. Dibble, 19 Wash. 328, 53 Pac. 370; Kimball v. Olmsted, 20 Wash. 629, 56 Pac. 377; State ex rel. Dent v. McLennan, 110 Wash. 16, 187 Pac. 408. The petition here shows that the title to an office is involved, and that is a question which may arise just as well where there is only one person asserting title as where there are two. That quo warranto and not mandamus is the proper procedure to determine a contest for office is clearly stated by this court in Kimball v. Olmsted, supra, where it is said:

“It is urged by the appellants that mandamus is not the proper remedy where the title to an office is in controversy, and such was the holding of this court in Lynde v. Dibble, . . . Respondent does not controvert the proposition, but contends that it is not applicable to the present case; and asserts that mandamus is the proper remedy to restore one to an office from which he has been illegally removed, and there is much authority to be found in support of his position. ' But we think that the rule for which the respondent contends cannot be invoked where it does not clearly appear that the removal was illegal; and where the question of the legality is a disputed question, depending upon the construction of statutory provisions, mandamus is not the proper remedy. . . . 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. . . . relating to information in the nature of quo warranto . . . The provisions of this 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.”

There are at least two Washington cases holding mandamus to be the proper remedy to restore civil service employees to their positions where it was claimed that they had been improperly removed. State ex rel. Roe v. Seattle, 88 Wash. 589, 153 Pac. 336; and State ex rel. Wettrich v. Seattle, 115 Wash. 518, 197 Pac; 782. The only means by which these apparently irreconcilable creatures can be turned into one cage where they will lie in cordial intercourse, without dealing a death blow to one or the other species, is to reconcile them by holding that mandamus is the remedy by which to re-acquire a position for an employee, while quo warranto is the remedy by which to determine the right or title to an office by an official.

The petitioner, however, asserts that the question presented is not one involving the title to an office; that the office is his, and until he has been properly removed therefrom, the title is 'not involved. Section 9127, Rem. Comp. Stat. [P. C. §797], subdivision (k) is to the effect that “The removal of a councilman from the ward for which he was elected shall create a vacancy in such office:” It is relator’s claim that his removal from the ward did not, ipso facto, create a vacancy, hut that there must have been some determination, judicial or otherwise, of the fact of his removal in order to create a vacancy. The statute does not provide for any such proceeding, but by its express terms makes the act of removal of itself create the vacancy.

Statutes similar to this have been upheld and it has been decided thereunder that there is no necessity for an adjudication of vacancy prior to the one that might be had in the quo warranto proceedings. Rumney v. Compton, 10 N. H. 567; People ex rel. v. Brite, 55 Cal. 79; Yonkey v. State ex rel. Cornelison, 27 Ind. 236; Curry v. Stewart, 71 Ky. 560; Barre v. Inhabitants of Greenwich, 1 Mass. (Pick.) 129; Prather v. Hart, 17 Neb. 598. Throop on Public Officers, §425, says, with reference to statutes which provide that the removal of an officer shall effect a vacation of the office, that “under such provision, it has been held, that the office .becomes vacant, when the incumbent ceases to be a resident of the district; and that his successor may be appointed, without an adjudication that the office is vacant.” Mechem on Public Officers, §438, says:

“Where the law requires the officer to reside within the district which he represents, and a fortiori so where it expressly declares that his removal from the district shall create a vacancy, a permanent removal from the district represented will be deemed an abandonment of the office and a vacancy will result. ’ ’

If this be the law, no adjudication was necessary to create a vacancy in the office of councilman of the second ward, and the pleadings raising a question of fact as to the title to an office which can only be determined by a trial, such question is not subject to determination in mandamus proceedings and must be settled by quo warranto.

It is argued, however, that the latter remedy is not available, as there is no other person who has been elected or appointed to fill the vacancy and the petitioner cannot maintain quo warranto proceedings against himself. Section 1034, Rem. Comp. Stat. subd. (2) [P. C. § 8398], provides that an information in quo warranto may be filed when any public officer shall have done or suffered any act which would work a forfeiture of his office, and § 1035, Rem. Comp. Stat. [P. C. § 8399], that an information in quo warranto may be filed whenever any one is claiming an interest in an office. Under the law, the prosecuting attorney of the county, on his own relation, or upon the direction of the court or other competent authority, or “any other person on his own relation,” claiming an interest in the office, may file the information. The law would seem to provide ample opportunity for the petitioner to raise this question in the form of proceedings which this court has held is the only one where the disputed right and title to an office can be adjudicated, and in that proceeding, as was said by the supreme court of California in People v. Brite, supra, “the issue of vacancy or not can be, and is to be determined.

The relator had his day in court in this action [quo warranto] upon that issue, and we see no necessity of a previous adjudication.”

Judgment affirmed.

Main, C. J., Holcomb, Bridges, and Tolman, JJ., concur.

Fullerton, J., concurs in the result.