Cudihee v. Phelps

• Decision Date: 05 November 1913
• Citation: 136 P. 367,76 Wash. 314
• Court: Washington Supreme Court
• Parties: CUDIHEE v. PHELPS, County Auditor, et al.

136 P. 367

76 Wash. 314

CUDIHEE v. PHELPS, County Auditor, et al.

Supreme Court of Washington

November 5, 1913

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Suit by Edward Cudihee against Byron Phelps, as Auditor of King County, and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Walter S. Fulton and William H. White, both of Seattle, for appellant.

Brady &amp Rummens, John F. Murphy, and Samuel Morrison, all of Seattle for respondents.

PARKER J.

The plaintiff Edward Cudihee, sheriff of King county, commenced this action in the superior court for that county, seeking to have the defendant Byron Phelps, as county auditor, enjoined from taking any action upon a petition filed in his office by the defendant John M. Young, a citizen and voter of King county, demanding the recall and discharge of Edward Cudihee, as sheriff, under the provisions of sections 33 and 34 of article 1 of the state Constitution and chapter 146 of the Laws of 1913, enacted in pursuance thereof. The case proceeded to final hearing upon the pleadings and stipulated facts, resulting in judgment, denying the relief prayed for, and a dismissal, from which the plaintiff has appealed to this court. We shall notice the facts as may become necessary in the discussion of the several contentions made by counsel for appellant.

The main contentions of counsel for appellant have to do with the adoption of sections 33 and 34, art. 1, as an amendment to the state Constitution at the general election of 1912, and their claim that those sections never became a valid portion of the Constitution. It is first contended that the act of the Legislature (chapter 108, p. 504, Laws of 1911) proposing and submitting this amendment to the people is void and ineffectual because of its insufficient and misleading title. The title and body of that act, in so far as we need notice them in this connection, read:

'An act to amend article one (1) of the Constitution of the state of Washington, authorizing and empowering the voters to call a special election at any time to recall and discharge any elective public officer and to elect his successor, by adding thereto at the end of said article one (1) two new sections which shall be numbered sections 33 and 34 of said article one (1).

'Be it enacted by the Legislature of the state of Washington:

'Section 1. That at the general election to be held in this state on the Tuesday next succeeding the first Monday in November, 1912, there shall be submitted to the qualified electors of the state, for their adoption and approval or rejection, an amendment of article one (1) of the Constitution of the state of Washington, authorizing and empowering the voters to call a special election at any time to recall and discharge any elective public officer and to elect his successor, by adding thereto at the end of said article sections 33 and 34 of said article one (1), and which shall read, as follows:

'Article 1.

'Sec. 33. Every elective public officer in the state of Washington except judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided.

'Sec. 34. The Legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay: Provided, that the authority hereby conferred upon the Legislature shall not be construed to grant to the Legislature any exclusive power of lawmaking nor in way limit the initiative and referendum powers reserved by the people. The percentages required shall be, state officers, other than judges, senators and representatives, city officers of cities of the first class, school district boards in cities of the first class; county officers of counties of the first, second and third classes, twenty-five per cent. Officers of all other political subdivisions, cities towns, townships, precincts and school districts not herein mentioned, and state senators and representatives, thirty-five per cent.'

We shall assume, for argument's sake only, that, when the Legislature proposes and submits to the people a constitutional amendment by bill instead of by resolution, the title of such bill must conform to the requirements of section 19, art. 2, of the Constitution, providing that: 'No bill shall embrace more than one subject, and that shall be expressed in the title.' A comparison of the title with the body of the act will readily show that, instead of the title being narrower than the body of the act, it is in fact broader in that it seems to refer to all public officers and to the election of successors, while the proposed amendment set forth in the body of the act excepts judges therefrom and makes no provision relative to the election of successors. That the title expresses the entire subject-matter of the body of the act and proposed amendment, if we treat the broader terms of the title merely as surplusage, seems to us quite plain. The argument of counsel seems to be that, because of its broader expressions, the title is misleading. We are not able to agree with this contention. The view of this court as to the sufficiency of the title of an act is tersely stated by Judge Fullerton, speaking for the court, in Shortall v. Puget Sound Bridge, etc., Co., 45 Wash. 290, 294, 88 P. 212, 213 (122 Am. St. Rep. 899), as follows: 'This court has uniformly held that the title need not be an index of the act but is sufficient if it so indicates its substance and scope as to put a person of ordinary intelligence upon notice and inquiry as to its provisions.' State ex rel. Wolfe v. Parmenter, 50 Wash. 164, 96 P. 1047, 19 L. R. A. (N. S.) 707; State ex rel. Zent v. Nichols, 50 Wash. 508, 97 P. 728; National Surety Co. v. Bratnober Lumber Co., 67 Wash. 601, 122 P. 337.

Clearly this title would give to a person of ordinary intelligence notice that the proposed amendment related to the recall of officers. We do not think that the fact that the title seems to indicate that the proposed amendment relates to the recall of all officers, without exception, and to the election of successors lessens the force of the fact that the title clearly covers the whole subject-matter of the proposed amendment and fairly gives notice thereof. Nor do we think that the title is subject to the objection that it embraces more than one subject, assuming that such objection would be available against the title, apart from such objection to the body of the act. Surely the recall and discharge of an officer and the choosing of his successor can be legislated upon as one subject in a single act, and of course exceptions of certain persons or things from the operation of the effect of a law would not relate to a separate subject-matter. The Supreme Court of Missouri, in State v. Bronson, 115 Mo. 271, 276, 21 S.W. 1125, 1126, dealing with a title which was broader in its terms than the act, disposing of the contention that the title was insufficient in the light of a constitutional amendment in substance the same as ours, said: 'Now the precise point of objection here is, not that this act contains more than one subject, but that the subject is not clearly expressed in the title in this: That the title indicates a law relating to all the public schools in the state, while the act itself excludes from its operation cities and districts having more than 100,000 inhabitants. In other words, the objection is that the title is broader than the act itself. The Constitution does not say the title shall be as narrow as the act. What it says on this point is that the single subject shall be clearly expressed in the title. The fact, therefore, that the title is broader than the act can be no objection, unless the title is comprehensive enough to admit of disconnected and incongruous subjects. Says Cooley: 'The generality of a title is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.' Cooley on Constitutional Limitations (6th Ed.) 172. The fact that the title speaks of 'all the public schools within this state,' while the proviso to section 11 excludes from the operation of the act cities and districts having more than 100,000 inhabitants, does not make the law unconstitutional.' This is quite in keeping with the views of this court expressed in former decisions touching the sufficiency of titles to acts and also finds support in the following authorities: State ex rel. v. Frazier, 36 Or. 178, 59 P. 5; Abeel v. Clark, 84 Cal. 226, 24 P. 383; McEldowney v. Wyatt, 44 W.Va. 711, 30 S.E. 239, 45 L. R. A. 609, 615; 1 Lewis' Sutherland's Statutory Construction (2d Ed.) § 124.

We are of the opinion that the title to the act proposing and submitting to the people this constitutional amendment sufficiently...