Hilzinger v. Gillman

• Decision Date: 09 December 1909
• Parties: HILZINGER v. GILLMAN, City Comptroller (HULBERT, Intervener.
• Court: Washington Supreme Court

105 P. 471

56 Wash. 228

HILZINGER v. GILLMAN, City Comptroller (HULBERT, Intervener.

Supreme Court of Washington

December 9, 1909

Department 1. Appeal from Superior Court, Snohomish County; W. W. Black Judge.

Action by George Hilzinger against C. C. Gillman, as City Comptroller of the City of Everett, in which William M Hulbert intervened. From a judgment of dismissal, plaintiff appeals. Affirmed in part and reversed in part.

Coleman & Fogarty, for appellant.

W. G McLaren, for respondent.

GOSE J.

This action was instituted by the appellant to enjoin the city comptroller, who is ex offcio city clerk of the city of Everett, a city of the first class, from certifying to the city council that a certain elector's petition was sufficient and in conformity with the provisions of the city charter. The complaint avers: That the appellant has been duly elected as a councilman to represent the Sixth ward in the city, for the term ending the first Tuesday after the first Monday in January, 1910; that he qualified and is acting as such; that the respondent Gillman is the comptroller and ex officio city clerk; that certain electors, in accordance with section 281 of the city charter, presented to and filed with the comptroller a petition, asking for the recall of the appellant as councilman, for the alleged reason that he is using the influence of his position to revive a certain franchise to the prejudice of the city; that the respondent comptroller will certify to the city council that the petition is sufficient, unless restrained by an order of the court; and that, if a certificate is filed, the council will immediately order an election for the purpose of choosing a successor to the appellant. The charter of the city is attached to, and made a part of, the complaint. The respondent Hulbert was permitted to intervene as an elector and a taxpayer in the city. The appellant demurred to the petition in intervention, and the intervener and the respondent comptroller severally demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The appellant's demurrer was overruled, and the demurrers of the respondents were sustained, whereupon, the appellant having elected to stand upon his complaint, the action was dismissed, and the appeal was taken from such judgment.

The appellant first contends that the intervener has no such 'interest in the matter in litigation' as to entitle him to intervene under the provisions of our Code. 1 Ballinger's Ann. Codes & St. § 4846 (Pierce's Code, § 272). We think he is right in this contention. Without undertaking to define in what cases a party may intervene, we are satisfied that an elector and taxpayer has no such interest in the matter in litigation in this case as to warrant an intervention. There is no allegation in his petition that the comptroller will not appear and defend the action. In Westland Publishing Company v. Royal, 36 Wash. 399, 78 P. 1096, a suit against a school district upon an alleged contract, it was held that a resident and a taxpayer in the school district could not intervene. See, also: Pomeroy's Remedies & Remedial Rights (2d Ed.)§ 424; 17 Am. & Eng. Enc. Law (2d Ed.) pp. 180-183; 11 Enc. Pl. & Pr. 446, 447. The demurrer to the complaint in intervention should have been sustained. In accordance with the power contained in section 10, art. 11, of the Constitution, and the legislation enacted thereunder (Laws 1890, p. 215 et seq., c. 7), the city of Everett, having a population in excess of 20,000, adopted a charter for its own government. Under the provisions of section 281 of the charter, certain electors of the Sixth ward of the city, the ward represented by the appellant, filed with the comptroller a petition for the recall of the appellant and the election of his successor. This section, so far as is necessary to a correct understanding of the case, provides: 'Sec. 281. The holder of any elective office may be removed at any time during his term by the electors qualified to vote for a successor of such incumbent. The procedure to effect the removal of an incumbent of an elective office shall be as follows: A petition signed by voters entitled to vote for a successor to the incumbent equal in number to at least twenty-five per centum of the entire vote for all candidates for the office, the incumbent of which is sought to be removed, cast at the last preceding general municipal election, demanding an election of a successor of the person to be removed, shall be filed with the city clerk; provided, that the petition sent to the council shall contain a general statement of the grounds for which the removal is sought. * * * If the petition shall be found to be sufficient, the clerk shall submit the same to the council without delay; and thereupon the city council shall order, and fix a date for the holding of such election. * * * Any person sought to be removed may be a candidate to succeed himself. * * * At such election if some other person than the incumbent receives the highest number of votes, the incumbent shall thereupon be deemed removed from the effice upon the qualifications of his successor.' Section 31 provides that: 'All persons elected at said first election as herein provided shall hold office until the first Tuesday after the first Monday in January, 1910, unless removed as in this charter provided.' Section 32 provides that, in all subsequent elections, 'the term of office of every elective officer shall be two years unless removed as in this charter provided.' Section 25 provides that: 'Any elective officer other than a member of the city council may be suspended by the mayor and removed for cause by the city council.' It then provides that inability or willful failure properly to perfrom his duties, or the commission of a crime or misdemeanor involving moral turpitude, absence from the city for 20 days without consent, open failure or refusal to discharge his duties, the habitual use of intoxicating liquors to excess, or any permanent disability preventing the proper discharge of his duties, shall constitute cause for the removal of any elective officer; but that 'the city council only shall have power to suspend or remove a member of that body,' which may be done for any of the enumerated causes. Ample provision is made in the charter for direct control over the city council and its legislation by the initiative and referendum.

Appellant's first contention is that there is a conflict between the provisions of sections 25 and 281 of the charter in relation to the removal of a member of the city council, and that the former, being specific in its nature and relating to a particular subject, must control. A reading of the two sections in the light of the charter as an entirety discloses a clear purpose...