Roberts v. Millikin

• Decision Date: 05 August 1939
• Docket Number: 27590.
• Citation: 200 Wash. 60,93 P.2d 393
• Parties: ROBERTS v. MILLIKIN, County Auditor, et al.
• Court: Washington Supreme Court

93 P.2d 393

200 Wash. 60

ROBERTS v. MILLIKIN, County Auditor, et al.

No. 27590.

Supreme Court of Washington

August 5, 1939

Department 2.

Suit by Joseph D. Roberts against Earl Millikin, as King County Auditor, and others to enjoin the Auditor from preparing the ballot synopsis to the recall charges preferred against the plaintiff by Clara Wheeler and others. From a judgment for the plaintiff, named defendant and Clara Wheeler and others separately appeal.

Reversed and remanded.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

B. Gray Warner, Wm. Hickman Moore and John Caughlan, all of Seattle for appellant Earl Millikin.

Oliver E. Henderson and George Vanderveer, both of Seattle, for appellants Wheeler et al.

James M. Ballard and Philip Tindall, both of Seattle, for respondent.

G. W Hamilton, Atty. Gen., and John E. Belcher, of Olympia, amici curiae.

GERAGHTY Justice.

Clara Wheeler, Bernice Steele, Irene Olson, and G. L. Baxter filed charges with Earl Millikin, auditor of King county, demanding the recall and discharge of Joseph D. Roberts from the office of senator of the state of Washington from the '35th Legislative District.'

The charges, filed under chapter 146, Laws of 1913, p. 454 specified two acts of alleged malfeasance and misfeasance committed by Senator Roberts in respect of the duties and obligations of his office during the 1939 session of the state legislature.

The first charge was that, being desirous of the passage of Bill 46, then pending in the senate, but opposed to the passage of pending Senate Bill 47, he unlawfully entered into a corrupt agreement with four of his colleagues, who were opposed to the passage of Bill 46, but favored the passage of Bill 47, by the terms of which he would cast his vote for Bill 47, which he opposed, and his four colleagues, parties to the agreement, would vote for Bill 46, to which they were opposed; that, 'pursuant to said improper, unlawful and corrupt understanding and agreement the said Joseph D. Roberts did, on the 1st day of February, 1939, vote in support of and for the passage of said Senate Bill 47; that said vote and said support of Joseph D. Roberts for said bill was solely in furtherance of said unlawful, improper and corrupt understanding and agreement, and was not based on a fair and impartial determination of the merits of said bill and proposition in accordance with his best and uninfluenced judgment.'

The second charge recited the pendency of Bills 48 and 70 Before the senate; that the Governor of the state desired the passage of Bill 48; that Senator Roberts was opposed to the passage of Bill 48, but favored the passage of Bill 70, and was further desirous of securing assurance that, upon its passage, it would be signed by the Governor. It is charged that Senator Roberts and the Governor, for the sole purpose of carrying out their respective wishes in the premises and preventing the fair and impartial consideration of the two bills in accordance with the best and uninfluenced judgment of the several parties, did 'wilfully, knowingly, intentionally and unlawfully conspire together and mutually enter into an improper, unlawful and corrupt understanding and agreement whereby said Joseph D. Roberts agreed to cast his vote in favor of the passage of Senate Bill #48 and whereby said Clarence D. Martin agreed to use his influence to secure the passage of Senate Bill #70 * * *'; and that Senator Roberts. 'solely in furtherance of said unlawful, corrupt and improper understanding and agreement,' voted for the passage of Senate Bill 48, and that his vote was not based 'on a fair and impartial determination of the merits of said bill in accordance with his best and uninfluenced judgment, but solely in consideration of the promises and acts' of the Governor.

Chapter 146, Laws of 1913, p. 455, sec. 3, provides that, 'If the acts complained of in the charge or [are] acts of malfeasance or misfeasance while in office, or a violation of the oath of office, as specified in the constitution, the officer with whom the charge is filed shall formulate a ballot synopsis of such charge of not to exceed two hundred words, which shall set forth the name of the person charged, the title of his office, and a concise statement of the elements of the charge, and shall notify the persons filing the charge of the exact language of such ballot synopsis, and attach a copy thereof to and file the same with the charge, and thereafter such charge shall be designated on all petitions, ballots and other proceedings in relation thereto by such synopsis.'

Following the filing of the charges with the auditor of King county, the present action was instituted by Senator Roberts, seeking a decree permanently enjoining the auditor from preparing a ballot synopsis or taking any of the other steps required of him by statute in the furtherance of the charges; and that the court decree that the charges be declared not to constitute misfeasance or malfeasance in office or a violation of the oath of office of the plaintiff as a state officer. The proponents of the charges, with Millikin, the county auditor, were named as defendants.

The amended complaint alleged that the charges filed against the plaintiff were false and untrue and maliciously made for the purpose of injuring his good name and reputation as a state officer and citizen of the community; that Senate Bills 46, 47, and 48, referred to in the charges, were known as the social security 'stop-gap' bills, and that it was well known among the members of the legislature that, if these bills were not passed, the Federal government would refuse to pay the state 'matching funds'; and that, without such aid, the state program of social security would be seriously handicapped, if not destroyed.

It is further alleged that the bills were of an emergency character and their immediate passage was necessary to insure the continued payment by the Federal government of matching funds; that Senate Bill 70, referred to in the second charge, provided for the appropriation to keep the parks and playgrounds of the state open to the general public, and was for the general welfare of the citizens of the state; that Senate Bills 46, 47, and 48 passed the senate with substantial majorities; and that Senate Bill 70 passed the senate without a dissenting vote, and, likewise, was passed by the house of representatives without any dissenting votes.

It was denied that the plaintiff, or any other member of either branch of the legislature, personally or remotely profited by the enactment of any of the bills mentioned in the charges.

It was alleged that there was not then, nor has there ever existed in the state of Washington, a political subdivison known as the '35th Legislative District,' and that the plaintiff was not an officer of the thirty-fifth legislative district, as set forth in the charges. It was also alleged that chapter 146, Laws of 1913, providing the procedure for the recall of public officers, is unconstitutional, in that it exceeds the authority granted by the recall amendment to the state constitution. It was finally alleged that the charges filed against the plaintiff do not constitute legal grounds for his recall, but that county auditor, Millikin, was about to prepare a ballot synopsis of the charges and to perform the other acts required of him by chapter 146, Laws of 1913.

The defendant Millikin, appearing separately, moved to strike certain paragraphs of the complaint on the ground that the allegations contained in them were irrelevant, immaterial, and redundant. A demurrer was also interposed by him on the grounds that the court had no jurisdiction of the subject matter, and that the amended complaint did not state facts sufficient to constitute a cause of action. The other defendants moved to quash plaintiff's show-cause order, and demurred to the complaint.

At the conclusion of the hearing upon the demurrers and motions, the court granted the motion of defendant Millikin to strike one paragraph of the amended complaint, and denied all the rest of the motions interposed by the parties. The demurrers were overruled, and the defendants, electing to stand upon their motions and demurrers, declined to plead further; whereupon, judgment was entered permanently enjoining the defendant Millikin, as auditor of King county, from preparing the ballot synopsis to the recall charges and from doing any other act with relation to them. The defendants, other than Millikin, joined in an appeal from the judgment; Millikin, as auditor, took a separate appeal.

As the trial court filed no memorandum of opinion, the grounds upon which its conclusion was based are not disclosed by the record. The respondent states that the issues involved on the appeal are:

'1. May the Superior Court enjoin proceedings to recall a public officer based upon charges which those who filed the recall petition admit are false and malicious?

'2. May the Superior Court enjoin such proceedings when the proponents of such recall admit that the office is not described as provided by statute?

'3. May the Superior Court enjoin recall proceedings when the complaint for injunction recites that the act is unconstitutional, and the demurrer admits it?

'4. May the Superior Court enjoin such recall proceedings where the proponents of such recall admit that the charges do not constitute legal charges for recall of plaintiff?'

It will be observed that the respondent relies to some extent upon the admissions of the appellants' demurrers to the complaint. The appellants attacked the complaint by demurrers and by a motion to strike irrelevant and immaterial allegations. The complaint alleged that the charges were 'false and untrue...