State v. Superior Court of Pierce County

• Decision Date: 29 July 1916
• Docket Number: 13556.
• Parties: STATE ex rel. EVANS v. SUPERIOR COURT of PIERCE COUNTY et al.
• Court: Washington Supreme Court

159 P. 84

92 Wash. 375

STATE ex rel. EVANS v. SUPERIOR COURT of PIERCE COUNTY et al.

No. 13556.

Supreme Court of Washington

July 29, 1916

Department 2. Proceedings by the State, on the relation of De Witt M Evans, against the Superior Court of Pierce County and others, to review the determination of such court that relator could be removed from office by defendant A. V Fawcett, Mayor of the City of Tacoma. Reversed and remanded with directions.

Hayden, Langhorne & Metzger, of Tacoma, for relator.

U. E. Harmon, of Tacoma, for respondents.

CHADWICK J.

The relator and two others were duly elected as justices of the peace in the city of Tacoma at the last general election. It is provided:

'Within ten days after such election the mayor of the city shall appoint one of the justices so elected the police justice or police judge of such city [cities of the first class] who shall before entering upon the duties of his office as police judge, give such additional bond for the faithful performance of his duties as the city council may by ordinance direct.' Laws 1899, p. 135.

In 1903 (Laws 1903, p. 34) this act was so amended as to give such justice exclusive jurisdiction over all offenses defined by ordinance, and other powers which need not be enumerated.

Within ten days after the election, the respondent A. V. Fawcett, then and now the mayor of the city of Tacoma, appointed the relator as police justice, or police judge. He qualified, and has ever since exercised the powers and duties of the office. On May 15, 1916, respondent Fawcett, acting as mayor, notified relator that his appointment as police justice was revoked. Relator instituted this proceeding to test the right of the respondent Fawcett to revoke his appointment. The respondent court held that relator had not been appointed for any fixed or definite term, and that the mayor had power to remove him at will without a hearing, and without assigning any cause therefor. It is stipulated that police justices have, since the act of 1899 (Laws 1899, p. 135), held their offices for the same time and term as they held the office of justice of the peace.

With the holding that the police justice does not hold his office for any definite term we cannot agree. The statute does not limit his term, in terms, or make it subject to the arbitrary will of the appointing power. On the contrary, by the strongest implications, it fixes the term as coextensive in time with that of the term of the justice of the peace, upon which the office of police justice is made to rest, and without which one assuming to act as police justice would have no jurisdiction whatever.

Section 1 of the act of 1899 provides that justices of the peace shall be elected by the qualified electors in cities of the first class 'at each general election.' The meaning of this is that one who had been elected justice of the peace, and has been appointed and has qualified as police justice, holds for a term. Our conclusion is strengthened by the provision of the law that the mayor shall select one of the justices to hear city cases within 10 days after the general election, thus indicating that it was the intention of the Legislature that the term of the one should begin with the other. If it does so begin, it cannot be denied that it would end at the same time. Rem. & Bal. Code, § 3860, is not without bearing. It expresses a legislative intention to define terms of office.

That an officer holding for a term is not subject to removal by the arbitrary will of the executive, although an appointee, is now well settled by authority. Indeed, the power to remove is determined, in the absence of statutes, almost entirely by reference to the fixity of the term. Without the citation of other authority, this proposition may be rested upon State ex rel. McReavy v. Burke, 8 Wash. 412, 36 P. 281, where it is said that the rule, as stated, is sustained by the great weight of authority. The court then proceeds to inquire whether that case fell within the rule. It was held that it did not, inasmuch as the Legislature had given the Governor the power of removal by positive statute, which in effect made the appointee's official life subject to the will of the Governor, and the acceptance of the office subject to the condition of summary removal.

In the absence of legislation--granting, but not deciding, that the Legislature could provide for the summary removal of an officer exercising judicial functions--the power of removal, if any, is to be found in the Constitution. A justice of the peace is not subject to impeachment, and is removable only for misconduct or malfeasance in such manner as may be provided by law. Const. art. 5, §§ 2-3. We find no provision of law giving the mayor of a city of the first class the power to remove a police justice.

But the fundamental error in the position assumed by respondents is that they seem to conceive that the office of justice of the peace and police justice are two offices--the one held at the suffrage of the people, the other at the will of the appointing power. There is but one office, that of justice of the peace. That he exercises jurisdiction over violations of city ordinances in no way changes his official character or his office. The framers of the Constitution foreseeing that the time would come in all cities when the...