Gibson v. Campbell

• Decision Date: 10 November 1925
• Docket Number: 19113.
• Citation: 241 P. 21,136 Wash. 467
• Parties: GIBSON v. CAMPBELL, County Auditor.
• Court: Washington Supreme Court

241 P. 21

136 Wash. 467

GIBSON v. CAMPBELL, County Auditor.

No. 19113.

Supreme Court of Washington, En Banc.

November 10, 1925

Appeal from Superior Court, Grays Harbor County; Abel, Judge.

Suit by Elmer L. Gibson against W. D. Campbell, County Auditor of Grays Harbor County, to restrain him from calling a recall election. From an order permanently enjoining county auditor from calling such election, the auditor appeals. Affirmed.

Holcomb J., Tolman, C.J., and Fullerton, J., dissenting.

F. L Morgan, of Hoquiam, and A. E. Graham, of Aberdeen, for appellant.

Theodore B. Bruener, of Aberdeen, for respondent.

ASKREN J.

On April 1, 1924, a committee of the Grays Harbor Enforcement League filed the following document in the office of the county auditor of Grays Harbor county:

'We, the undersigned legal voters of Grays Harbor county and a committee chosen and directed by Grays Harbor Enforcement League to prepare and file formal charges against Elmer L. Gibson, sheriff, of Grays Harbor County, hereby charge that Elmer L. Gibson, sheriff, has committed an act or acts of malfeasance while in office, and has violated his oath of office, and has been guilty of two or more of the acts specified in the Constitution as grounds for a recall in the following particulars:

'(1) That he has failed to enforce the laws within Grays Harbor county, and that he has connived at and permitted the violation of the laws of the state of Washington and of the United States of America.

'(2) That he has declined, neglected, and refused to make any suitable and proper effort to enforce the laws to apprehend lawbreakers and prevent law breaking, and has allowed and permitted lawbreaking to continue in said county.

'(3) That he has refused to act against known and notorious lawbreakers, although having positive and direct and specific information concerning such lawbreakers and where they might be found.

'(4) That he has allowed state and federal prisoners lawfully confined in the county jail and in his charge, to leave their places of confinement and visit the cities of Montesano and Aberdeen for considerable periods of time and to return at their own pleasure, and on at least one occasion to attend a prize fight; some of them, on numerous occasions, returning in an intoxicated condition.

'(5) That he has employed prisoners sentenced to the county jail to labor upon his own ranch and buildings, for his enrichment, profit, and benefit, all without any benefit to the county, and in violation of the laws of the state.

'(6) That he has refused to co-operate with other law enforcement officers of the county, and has refused to use the funds which are on hand, and are under his control and are designated and are required by law to be used for the enforcement of the Prohibition Law, for that purpose.'

On April 21, the county auditor prepared a synopsis of such formal charges, and the charges were thereupon returned to the committee and petitions prepared and circulated for signatures in Grays Harbor county. On December 5, the petitions with the signatures were filed, and the county auditor gave notice that he would canvass the returns on December 10. On the 8th day of December this action was begun to restrain the county auditor from calling a special election. On the 10th day of December the county auditor, having canvassed the petitions, issued a certificate finding that the recall petitions contained sufficient signatures of certified legal voters, and naming Tuesday, the 23d day of December, 1924, as the day for holding a special election. On the 13th day of December, the court, after hearing, permanently enjoined the county auditor from calling a special election. The trial court held that the charges contained in the petitions and the affidavit of expenses as filed were both insufficient. The auditor has appealed.

It is contended first by appellant that the proceeding was begun too late. The statute providing the procedure in such a case contains the following proviso:

'Provided, that any proceeding to compel or prevent the performance of any such act shall be begun within ten days from the time the cause of complaint arises.' Rem. Comp. Stats. § 5363.

Appellant contends that, since the original charges were filed on April 1, 1924, that any attack made upon them should have been commenced within ten days thereafter, while respondent contends, and the trial court so held, that a proceeding begun within ten days after the charges containing the requisite number of signatures had been filed was sufficient. It will be seen by reference to the statutes regulating the recall of public officials (Rem. Comp. Stats. §§ 5350 to 5365, inc.), that nowhere is there any provision made for notice to be given to the officer whose recall is desired until after the filing of such charges, together with the signatures. In this case, following the law, no notification was given the sheriff by the auditor that his recall was being demanded until the charges with signatures had been filed in his office. It is argued by appellant that the sheriff had knowledge of the fact that his recall was being demanded, because it was a matter of common talk and well known to every one in the community; but there is a wide difference between one having knowledge of a thing and receiving that official notice which binds him as to the time when he shall perform some act. In this case the sheriff began the proceeding within ten days after he had been notified as required by law. This was within the time.

The next contention of appellant is that courts will not interfere to enjoin the holding of elections. Many cases are cited from other jurisdictions, in some of which it is held that courts of equity will not enjoin elections for the reason that no property right is involved, and that an aggrieved party must wait until the result of the election to determine his right to office. But we need not look to other jurisdictions for authority upon this question, as we have already held in at least two cases to the contrary. State ex rel. McCauley v. Gilliam, 81 Wash. 186, 142 P. 470, and McCush v. Pratt, 113 Wash. 7, 192 P. 964.

It further appears to have been the legislative intent that the court should enjoin the holding of a recall election if the provisions of the act were not complied with. Section 5363 is as follows:

'The superior court of the county constituting or containing any political subdivision of the state in which the recall is invoked as in this act provided shall have original jurisdiction to compel the performance of any act required of any officer of such political subdivision under the provisions of this act, in case such officer refuse to perform the same, or to prevent the performance by any such officer of any act in relation to the recall not in compliance with the provisions of this act.'

It is next contended that the court has no right to inquire into the sufficiency of the charges, inasmuch as the question is wholly political and not judicial. The question as to whether the grounds for recall are sufficient to cause the voters to desire the removal of the official in question is always a political one to be determined by them, and as to this courts will never interfere. But the question as to whether or not the proceedings looking to the recall of the officer comply with the constitutional and statutory law upon the subject is purely and wholly a judicial question. The power is hold an election proceeds from statute, and until the proper legal steps have been taken the county auditor has no right to call an election. This was recognized by us in Cudihee v. Phelps, 76 Wash. 314, 136 P. 367, where, after holding that a petition had been filed the sufficiency of which had not been challenged, we observed:

'It may be that courts have jurisdiction to determine the sufficiency of the statement of the allegations made as cause for removal if presented in a proper proceeding involving the question of the calling of the election, but the trial of the question of whether such cause actually exists, and as to whether the officer shall be discharged, is to be had before the tribunal of the people and decided by them at the polls.'

This brings us to the important question to be determined, i. e., were the charges sufficient? It will be seen from a reading of the charges that they are couched in very general terms. In fact, so general that nearly every one of mature years has heard the same general charges or rumors against nearly every sheriff who has held office for any length of time in any community. It appears that the sheriff is serving his second term of office. There is nothing in the charges to show whether the acts complained of were committed during his first or his second term of office. There is neither time, place, nor persons mentioned in connection with any of the charges. Appellant has cited a number of cases from the state of California, and from Nebraska, where charges no more definite than these were held to be sufficient. An examination of the ordinances and statutes upon recall of those states discloses that they cannot be authority here. The Constitution of California (article 23, § 1), contains the following:

'Such petition [recall] shall contain a general statement of the grounds on which the removal is sought, which statement is intended solely for the information of the electors, and the sufficiency of which shall not be open to review.'

In Good v. Common Council, 5 Cal. App. 265, 90 P. 45 cited by appellant, the charter required a general statement only of the grounds on which removal was sought. In Laam v. McLaren, 28 Cal.App. 632, 153 P. 985, the requirement was 'a statement of the grounds on which the removal or recall is...