State ex rel. Knabb v. Frater

• Decision Date: 27 April 1939
• Docket Number: 27453.
• Citation: 198 Wash. 675,89 P.2d 1046
• Parties: STATE ex rel. KNABB v. FRATER, Acting Judge.
• Court: Washington Supreme Court

89 P.2d 1046

198 Wash. 675

STATE ex rel. KNABB v. FRATER, Acting Judge.

No. 27453.

Supreme Court of Washington

April 27, 1939

Department 2.

Original certiorari proceeding by the State of Washington, on the relation of Jesse Knabb, against John A. Frater, Acting Judge of the Superior Court of Kitsap County, to review the action of the Superior Court of Kitsap County in ousting the relator as mayor of the City of Bremerton.

Affirmed.

W. A. Beakley, of Bremerton, H. Sylvester Garvin and George F. Vanderveer, both of Seattle, for relator.

Bennett Hoffman, of Seattle, Ralph E. Purves, Pros. Atty., of Bremerton, and Wm. D. Askren, of Seattle, for respondent.

SIMPSON Justice.

This proceeding comes by way of a writ of certiorari for the review of the action of the superior court of Kitsap county in ousting the relator as mayor of the city of Bremerton, a city of the second class, operating under the commission form of government.

The relator and Peter Desimon were charged with the crime of conspiring to establish and operate under their management and supervision, in the city of Bremerton, gambling games games of chance, gambling devices, and to sell lottery tickets. The games were specified as a card game called 'Black Jack,' games of dice called 'Crap' and 'Chuck-a-Luck,' and automatic pay off pin-ball machines.

The information in the criminal case also charged that the defendants agreed to endeavor, by persuasion and the promise of monetary reward, to induce Ralph E. Purves, the prosecuting attorney of Kitsap county, in his official capacity not to enforce the gambling laws of the state of Washington with respect to the games and devices to be operated by defendants.

The relator was tried, and the jury returned a verdict of guilty November 17, 1938. December 12, 1938, relator was sentenced to imprisonment in the county jail for a term of twelve months and to pay a fine in the sum of $1,000.

December 19, 1938, Ralph E. Purves, as prosecuting attorney of Kitsap county, filed an information in the nature of quo warranto in which the facts relative to the trial, conviction, and sentence of relator were set forth, together with the allegation that on or about the 16th day of December, 1938 the city commissioners of the city of Bremerton duly and regularly passed a resolution declaring the office of the mayor of that city vacant by virtue of his conviction of the crime of conspiracy. The allegations in the quo warranto information were followed by a prayer that a decree be entered adjudging that relator had forfeited the office of mayor of the city of Bremerton.

An order to show cause why the decree prayed for should not be granted was issued by the court, designating December 23 1938, as the day of hearing. Relator answered the show cause order admitting the allegations of the information to which we have just referred, and alleged that the offense with which he was charged was not an infamous crime or felony, or a malfeasance in office; that it did not involve a violation of relator's official oath as mayor of the city of Bremerton; that the judgment entered against him was erroneous; and that the relator had appealed from the judgment of conviction to the supreme court of the state of Washington.

The case was tried to the court, and a judgment entered to the effect that the office of relator as mayor of the city of Bremerton had been vacated and forfeited by relator as of the date of December 12, 1938, on account of his conviction on that date of the crime named in the information.

Relator urges error on the part of the trial court in holding that his conviction ipso facto entailed forfeiture of his office, and in the entering of a judgment of ouster.

The question presented is, did the relator forfeit his right to hold office as mayor of the city of Bremerton upon his conviction of the crime of conspiracy to violate the gambling laws of the state of Washington.

Article V, § 3, of our constitution provides: 'All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law.'

The legislature implemented this constitutional provision by enacting §§ 2289 and 9950, Rem.Rev.Stat., which, respectively, read:

'The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state.'

'Every office shall become vacant on the happening of either of the following events Before the expiration of the term of such officer: * * *

'5. His conviction of an infamous crime, or of any offense involving a violation of his official oath.'

Relator contends that his conviction of the crime of conspiracy to violate the gambling laws of this state does not constitute malfeasance in office in that the crime of which he was convicted did not affect the performance on his part of the duties of mayor. He cites State ex rel. Martin v. Burnquist, 141 Minn. 308, 170 N.W. 201, 609;

Mechem on Public Officers, 290, § 457, and Throop on Public Officers, 363, § 367, and other cases of like import; all of which support the following rule announced in the last mentioned authority: 'Where the constitution or a...