State v. Mills

• Decision Date: 17 July 1891
• Citation: 2 Wash. 566,27 P. 560
• Parties: STATE EX REL. SMITH, MAYOR, v. MILLS.
• Court: Washington Supreme Court

27 P. 560

2 Wash. 566

STATE EX REL. SMITH, MAYOR, v. MILLS.

Supreme Court of Washington

July 17, 1891

Appeal from superior court, Clarke county; N.H. BLOOMFIELD, Judge.

Action by J. R. Smith, in his official capacity as mayor of Vancouver, to oust A. F. Mills from the office of city councilman. Judgment for plaintiff. Defendant appeals. Reversed.

On March 30, 1891, the plaintiff filed with the city clerk a nomination for an appointment to the office of councilman. Vancouver being a city of the third class, such appointment was necessary under the Laws of 1890, as amended by the Laws of 1891. At an adjourned meeting of the council held the evening in which the mayor filed the nomination, and in the absence of the mayor, a mayor pro tem. was elected. The council rejected the mayor's nomination, and the nomination of defendant by the mayor pro tem. was confirmed, and the appointee thereafter qualified.

W. Byron Daniels and Williams &amp Woods, for appellant.

Wiswall & McCredie, for respondent.

DUNBAR J.

This case presents to our consideration two questions First, does the complaint show that the respondent has sufficient interest in the office claimed to have been usurped to entitle him to appear as relator in an information in quo warranto proceedings? Second, did the mayor pro tem., by and with the consent of the city council, have the power to appoint the additional councilman? The law involved in these propositions was presented so ably and concisely by counsel on the respective sides that the court has been greatly aided in its investigations. It seems hardly necessary, for the purpose of this investigation, to consider the history of the writ, or of the information in the nature of quo warranto, further back than the statute of Anne, (9 Anne, c. 22,) when the proceeding by information, which had before been a criminal proceeding, became the means of determining civil rights between private parties, and the rights which could before be investigated only through the interposition of the writ of quo warranto. Under that statute any one could prosecute the usurper of an office simply by leave of the court. The practice then soon obtained to allow informations almost as a matter of course. "Indeed," says Mr. High, in his Extraordinary Legal Remedies, § 605, "to such an extent had the granting of these informations been carried that it was frequently deemed prudent not to show cause against the rule nisi, lest the respondent should thereby disclose his grounds of defense." It finally became noticeable that the remedy was abused, and used for the gratification of personal malice, and the courts again began to exercise their rights under the statute of Anne, and would not allow the information to be filed unless it appeared that the relator had some interest in the matter. The discretion of the court had to be appealed to in each instance. So far there can be no difference of opinion, but from this on there are some distinctions claimed by both parties. For instance, it is claimed by the appellee that there is a distinction in the necessary interest of the relator where the action is brought to disenfranchise the corporation, or take its life, and where it merely goes to the administration of corporate functions; and authorities are cited which seem to establish this distinction. No doubt, in reason, a greater interest in the relator should be required where the life of a corporation is at stake, and where the public would suffer by its destruction, than where a simple functional power is called in question; though it may be said in this connection that our statute does not recognize this distinction. See section 702, subd. 1, Code. On the other hand, it is contended that while, under the statute of Anne and kindred statutes, where the discretion of the court is to be exercised, the private individual or tax-payer may file the information, yet in statutes similar to ours, where courts are divested of this discretion, the rule is changed, and the information must be filed by the state's officer, or, if filed by the private individual, he must show some special interest in the subject of the controversy; and the cases cited by appellee, all being cases either under the common-law rule or in compliance with the requirements of the statute of Anne, are not in point. After a careful consideration of the authorities and cases cited, we are inclined to adopt this view.

In Murphy v. Bank, 20 Pa. St. 415, the court in rendering the opinion says the substance of the statute of Anne had been adopted before the Revolution as a part of the common law, and was a part of the law in Pennsylvania, and that the practice of the court was not affected by the statute of 1836. Mr. High had special reference to the statute of Anne, and to the discretion of the court, in section 681, cited by appellee, where he says: "The statute of Anne extended the remedy by quo warranto information, which had before been considered much in the nature of a prerogative one, to private citizens desiring to test the title of persons usurping or executing municipal offices and franchises, and rendered any person a competent relator in such proceedings who might first obtain leave of the court to file an information." State v Tolan, 33 N. J. Law, 195, was tried under a statute giving discretion to the court to allow or reject the filing of the information. The judgment in State v. Hammer, 42 N. J. Law, 436, was based upon the same ground; and the court in discussing this question says: "All that the court requires in such instances is to be satisfied that the relator is of satisfactory responsibility," etc. In Churchill v. Walker, 68 Ga. 681, leave of the court had first to be obtained. In Com. v. Meeser, 44 Pa. St. 341, the statute was the same, and even with that statute the court reluctantly sustained the case by reason of some special act; for after expressing its reluctance the court says: "We observe that by the act of April 24, 1854, § 3, (not cited to us in arguing these disputes, and not before noticed by us,) any tax-payer may obtain an injunction against any violation of the charter law of the city, and we may take this as a fair analogy for granting this writ." And then the court adds, "especially as we can prevent the abuse of it by the exercise of discretion," etc. Thus it will be seen that the practice of allowing private individuals, who are not specially interested, to interfere with the public officers of the state, is bottomed on the idea of the discretion of the court, and that the court can restrain any abuse that might otherwise flow from allowing irresponsible parties to make the state a party to their petty troubles and personal likes and dislikes. And the appellee seems imbued with this idea, for he says in his brief: "It is important that we bear in mind that any evils that might arise from permitting the writ to issue at the instance of a private relator are properly and sufficiently guarded, since it can issue only in the sound discretion of the court." But we look in vain for any discretion given to the court by our statute. The common law on that subject has been supplanted by the statute,-the state has legislated on the subject,-and it is to the statute we must look, not only for the practice of the court, but for the qualifications of the relator. Section 702 provides that "an information may be filed against any person or corporation in the following cases," (subsequent subdivisions reciting the cases.) Section 706 provides that, "whenever an information is filed, a notice signed by the relator shall be served and returned as in other actions. The defendant shall appear and answer, or suffer default, and subsequent proceeding be had as in other cases." There is no discretion given to the court, and, if discretion should be given to the court, the discretion should not go beyond the statutes. The statutes specify those who have the legal right to invoke this remedy. If the relator has a standing here, it must be under section 703, which is as follows: "Sec. 703. The information may be filed by the prosecuting attorney in the district 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...