State ex rel. Brown v. Warnock, 28436.

• Decision Date: 18 February 1942
• Docket Number: 28436.
• Citation: 122 P.2d 472,12 Wn.2d 478
• Parties: STATE ex rel. BROWN, Mayor, v. WARNOCK et al.
• Court: Washington Supreme Court

122 P.2d 472

12 Wn.2d 478

STATE ex rel. BROWN, Mayor, v. WARNOCK et al.

No. 28436.

Supreme Court of Washington, En Banc.

February 18, 1942

Mandamus proceeding by the State on the relation of Arthur Brown, as Mayor of the Town of Marysville, a municipal corporation against Phil G. Warnock and Leslie R. Cooper, as Prosecuting Attorney, Snohomish County, Wash., to compel Leslie R. Cooper to institute quo warranto proceedings to determine by what authority Phil G. Warnock was exercising the functions of town attorney of the town of Marysville. From an order requiring Leslie R. Cooper to commence quo warranto proceedings and to prosecute the action diligently to final judgment, he appeals.

Affirmed.

STEINERT and BEALS, JJ., dissenting.

Appeal from Superior Court, Snohomish County Ralph C. Bell, Judge.

Leslie R. Cooper and C. P. Brownlee, both of Everett, for appellant.

A. E Dailey, of Everett, for respondents.

MILLARD Justice.

Arthur Brown as mayor of the town of Marysville, a municipal corporation of the fourth class, filed a petition in the superior court for Snohomish county praying for an order directing the prosecuting attorney for that county to institute the necessary proceedings to determine by what authority Phil G. Warnock was exercising the functions of town attorney of the town of Marysville.

In answer to a show cause order served upon him, the prosecuting attorney appeared and demurred to the petition upon the grounds that same did not state facts sufficient to constitute a cause of action and that there was a defect of parties defendant and plaintiff. The demurrer was overruled and an order was entered requiring the prosecuting attorney to commence with reasonable promptness proceedings in the nature of quo warranto to test the right of Phil G. Warnock to hold the office of attorney for the town of Marysville and to diligently prosecute the action to final judgment. The prosecuting attorney appealed from that order.

The allegations of fact, together with the reasonable inferences therefrom, in the petition of respondent, admitted by the demurrer to be true, are as follows:

Phil G. Warnock, who is not an elector of resident of the town, was appointed by the mayor of Marysville, a municipal corporation of the fourth class, attorney for the town of Marysville. He served as town attorney until January 31, 1941, at which time the mayor notified him of his discharge. Although he was not then and is not now an elector or resident of the town Warnock was elected attorney for the town of Marysville and received from the county auditor a certificate of election under which he claims title to the office of town attorney. The prosecuting attorney for Snohomish county refused to institute the action requested by the petitioner.

Counsel for appellant contend that the mayor is not beneficially interested, therefore the court erred in issuing the writ in view of the statutory provision, Rem.Rev.Stat. § 1015, that issuance of the writ of mandamus must be upon affidavit on the application of the party beneficially interested; and that the petition does not allege the absence of a plain, speedy and adequate remedy at law which is prerequisite to the issuance of the writ.

'The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It must be issued upon affidavit on the application of the party beneficially interested.' Rem.Rev.Stat. § 1015.

Counsel for appellant further insist that there is a plain, speedy and adequate remedy at law under the statute, Rem.Rev.Stat. § 5366, which provides that any elector of the proper county may contest the right of any person declared duly elected to an office, when the person whose right to office is contested was not, at the time of election, eligible to such office.

The argument of counsel for appellant as to defect of parties, adequacy of remedy at law, that it is a matter within the discretion of the prosecuting attorney whether he shall institute quo warranto proceedings, and that the court has no power to compel him to act against his will, is answered by the clear, unambiguous language of the statute. Rem.Rev.Stat. §§ 1014, 1034, 1035. See State ex rel. Gilbert v. Prosecuting Attorney, 92 Wash. 484, 159 P. 761. $The statute, Rem.Rev.Stat. § 9170, provides that no person shall be eligible to hold any office in a municipal corporation of the fourth class (Marysville is a municipal corporation of the fourth class) whether filled by election or appointment unless he be a resident and elector therein. It is admitted that Mr. Warnock, the incumbent, is not eligible to hold the office of attorney for the town of Marysville as he is not a resident and elector of the town.

This is not a proceeding by a private individual to maintain an information in the nature of quo warranto to try title to a public office; it is an action in mandamus to compel the performance of an act which the law especially enjoins upon the prosecuting attorney as a duty resulting from his office. The only necessary parties to the proceeding are respondent relator who claims right to performance and appellant prosecuting attorney who must perform.

The writ of mandamus 'may be issued by any court * * * to any * * * person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office * * *'. Rem.Rev.Stat. § 1014.

The statute relating to the usurpation, intrusion into, and unlawful holding of office provides that an information in the nature of quo warranto may be filed against any person who unlawfully holds or exercises any public office within this state. Rem.Rev.Stat. § 1034. That is, an information in the nature of quo warranto is the proper and adequate remedy to try the right to a public office of which, as in the case at bar, there is a de facto incumbent.

The statute further provides that the information in nature of quo warranto to determine title to an office allegedly unlawfully held '* * * may be filed by the prosecuting attorney in the superior court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the court or other competent authority, or by any other person on his own relation, whenever he claims an interest in the office, * * * which is the subject of the information.' Rem.Rev.Stat. § 1035.

At the common law the public prosecutor or attorney general had the exclusive right or power to commence proceedings by information in the nature of quo warranto. Under the statute Rem.Rev.Stat. § 1035, the prosecuting attorney may, upon his own relation whenever he shall deem it his duty to do so, file an information in the nature of quo warranto to determine title to a public office allegedly unlawfully held. Although the prosecuting attorney may, if convinced that the interests of the public justify a resort to the remedy by quo warranto, file an information, the discretion of the prosecuting attorney is not an arbitrary discretion. While the prosecuting attorney may file the information upon his own relation, he shall file such information when so 'directed by the court or other competent authority.' The...