Morton v. McDonald, 32342

• Decision Date: 27 January 1953
• Docket Number: No. 32342,32342
• Citation: 252 P.2d 577,41 Wn.2d 889
• Parties: MORTON, v. McDONALD, City Clerk, et al.
• Court: Washington Supreme Court

Page 889

41 Wn.2d 889

252 P.2d 577

MORTON, v. McDONALD, City Clerk, et al.

No. 32342.

Supreme Court of Washington, Department 1.

Jan. 27, 1953.

Simmons & Yates, Seattle, for appellants.

Kern & Dano, Ellensburg, for respondent.

HILL, Justice.

This is an appeal from a judgment restraining a recall election, argued in this court January 22, 1953. This is an emergency matter of public concern, to be speedily heard and determined. RCW 29.82.160; cf. Rem.Rev.Stat. § 5363.

Certain voters of the city of Cle Elum, desiring to recall the mayor of that city, filed in the office of the city clerk sixteen charges against him, as required by RCW 29.82.010, cf. Rem.Rev.Stat. §§ 5350, 5351.

It then became the duty of the clerk, if the acts complained of were acts of malfeasance or misfeasance by the mayor while in office or violations of his oath of office, to formulate a ballot synopsis of such charges of not to exceed two hundred words. Rem.Rev.Stat. § 5352. The revisers compiling RCW eliminated the portion of this section of the statute which we have italicized. See RCW 29.82.020. Roberts v. Millikin, 1939, 200 Wash. 60, 93 P.2d 393.

That section of the statute further provides that the clerk shall notify the persons who filed the charges of the exact language of the ballot synopsis.

The mayor could have, by appropriate proceedings, challenged the sufficiency of any or all of the charges filed against him at any time from the moment they were filed with the clerk. We are satisfied that he could also have challenged the propriety or the sufficiency of the ballot synopsis and restrained circulation of the recall petitions until the questions concerning the ballot synopsis were adjudicated. The persons who filed the recall charges could likewise have challenged the propriety and sufficiency of the ballot synopsis if not satisfied therewith.

We will hereinafter discuss Gibson v. Campbell, 1925, 136 Wash. 467, 241 P. 21, in which we held that the person whose recall was sought did not have to commence an action until after his notification of the filing of the signed petitions as provided for in RCW 29.82.080, cf. Rem.Rev.Stat. § 5358. In that case Gibson had commenced his action within ten days after the signed recall petitions had been filed with the proper officer.

Obviously, the time to determine the sufficiency of the charges and the appropriate wording for the ballot synopsis is before and not after the circulation of the recall petitions. This is demonstrated by the cogent and convincing argument of the respondent that it cannot be presently determined how many voters signed the recall petitions because of one or another of the charges now held to be insufficient.

The statutes covering the recall procedure provide that any proceeding to compel or prevent the performance of any act in relation to the recall not in compliance with those statutes shall be begun within ten days from the time the cause of complaint arises and shall be considered an emergency matter of public concern and take precedence over other cases. RCW 29.82.160, cf. Rem.Rev.Stat. § 5363.

In the present case, the clerk eliminated one of the charges, apparently believing that it did not meet the statutory requirement of misfeasance or malfeasance in office or a violation of the oath of office by the mayor, and prepared a ballot synopsis. There was no challenge of that ballot synopsis by either the mayor or the parties who filed the charges, and it became a part of the recall petitions as required by statute. RCW 29.82.020, cf. Rem.Rev.Stat. § 5352; Roberts v. Millikin, supra.

After the recall petitions had been circulated and the signed petitions had been filed with the clerk, the mayor brought this action to enjoin the clerk from calling the election. It was conceded at the trial that the canvass of the petitions provided for by RCW 29.82.080 and 29.82.090, cf. Rem.Rev.Stat. § 5358, showed the requisite number of valid signatures to authorize a recall election.

Two questions of law were presented to the trial court. The first involved the sufficiency of the charges. The trial court found that three of the charges met the statutory requirements and twelve did not. The second was, May a recall election be had when some but not all of the charges have been found to be sufficient? The trial court, relying upon Gibson v. Campbell, supra, answered this question in the negative and enjoined the election.

The answer should have been in the affirmative. The respondent mayor, not having challenged the sufficiency of the charges at a time when the charges now held to be insufficient could have been stricken and reference to them eliminated from the ballot synopsis, cannot now complain of the fact that some voters may have been induced to sign the recall petition because of charges now held to be insufficient. The rule is that at this state of the proceedings, the recall petitions having been circulated, signed and canvassed, only the complete failure of all of the charges to meet the statutory requirements can justify enjoining the holding of the election; one charge meeting the statutory requirement is sufficient. Thiemens v. Sanders, 1918, 102 Wash. 453, 173 P. 26; State ex rel. Walter v. Houghton, 1931, 165 Wash. 220, 4 P.2d 1110; People ex rel. Elliott v. O'Hara, 1929, 246 Mich. 312, 224 N.W. 384; Amberg v. Welsh, 1949, 325 Mich. 285, 38 N.W.2d 304.

The respondent mayor now makes the contention, in support of the judgment of the trial court, that none of the charges are sufficient. The trial court having found that three of the charges are sufficient, the appellants challenge the right of the respondent to make the contention, on this appeal, that none of...