State Ex Rel. Walter v. Houghton, 165 Wash. 220, 4 P. 2d 1110


(1931).

 220    STATE EX REL. WALTER v. HOUGHTON.
                     Statement of Case.           165 Wash.

      [No. 23282. Department Two. November 13, 1931.]
      THE STATE OF WASHINGTON, on the Relation of HARVEY
      B. WALTER, Respondent, v. WILLIAM J. HOUGHTON,
           as Clerk of Consolidated School District
                     No. 4, Appellant. «1»

[1] PLEADING (101) - AMENDMENT - LEAVE OF COURT - DISCRETION -
SURPRISE OR PREJUDICE. In mandamus proceeding against an
officer of a municipal corporation, defendant is not
prejudiced by the allowance of an amendment to allege the fact
of incorporation, which was a matter of public record.

[2] OFFICERS (26-1) - RECALL - REVIEW - JUDICIAL QUESTIONS. The
legality of recall proceedings is a judicial question for
determination of the courts.

[3] SAME (26-1) - RECALL - CHARGES - DEFINITENESS AND CERTAINTY.
Recall charges must be set out in language as specific and
definite as the language of a criminal information.

[4] SAME (26-1) - RECALL - GROUNDS - SUFFICIENCY - MISDEMEANOR.
Recall charges against a school director alleging a petty
larceny stated in the language of a criminal information,
and a charge of giving away valuable property rights of the
district, are sufficient for a recall; but a secret
agreement in regard to the appointment of a school
superintendent, dependent upon the result of an election,
is not sufficient, where it merely indicated an intention
to abide by the will of the electors.

Appeal from a judgment of the superior court for
Snohomish county, Bell, J., entered May 14, 1931, in
favor of the relator, in an action to compel the clerk
of a school district to carry out his duties under the
recall statutes, tried to the court. Affirmed, as modified.

Charles A. Turner and Louis A. Merrick, for appellant.

M. H. Forde, for respondent.


«1» Reported in 4 P. 2d 1110.

           STATE EX REL. WALTER v. HOUGHTON.          221
 Nov. 1931          Opinion Per HOLCOMB J.

HOLCOMB

HOLCOMB, J. - This mandamus action in the lower
court grew out of a recall proceeding whereby the
voters of a consolidated school district in Snohomish
county are attempting to recall two of its directors,
one of whom is appellant and who is also clerk of the
district. Recall charges were formulated and filed
with appellant as clerk of the district, who refused to
furnish a ballot synopsis as provided by law. Thereupon
relator, on behalf of himself and six other electors
selected at a meeting of legal voters of the school
district, petitioned for a mandate to compel appellant to
carry out his duties under the recall statutes. An alternative
writ was issued, against which appellant
moved to strike. certain portions of relator's petition
and demurred separately to all of the recall charges.

On the hearing of the matter by the trial court,
relator was granted permission to amend a paragraph
of his petition by interlineation, adding the words
"which is a municipal corporation, organized and legally
existing under the laws of the state of Washington."
The amendment amended the paragraph alleging
that appellant is now, and at all times hereinafter
mentioned has been, the duly elected, qualified
and acting clerk of consolidated school district No. 4,
Snohomish county, Washington. To this amendment
appellant objected, which objection was overruled.

The petition of relator for the recall contains seven
separate paragraphs of charges of misfeasance, malfeasance
and nonfeasance on the part of the officers
sought to be recalled. The trial court found the first,
fourth, fifth, and the first part of the sixth to be
insufficient under the law as recall charges; and sustained
the second, third, the latter half of the sixth, and all
of the seventh as sufficient under the law as recall
charges.

 222    STATE EX REL. WALTER v. HOUGHTON.
                Opinion Per HOLCOMB, J.           165 Wash.

With those charges which the court held to be insufficient,
we are no longer concerned.

[1] Appellant maintains that the trial amendment
to the petition of relator should not have been
permitted to allege that consolidated school district No. 4,
Snohomish county, Washington, is a municipal corporation
organized and legally existing under the laws
of this state. The allegation was necessary as a part
of the pleading; but it was of a public matter, which
was, of course, known to appellant, he being an officer
of the public corporation. Appellant could not be surprised
or prejudiced by any such amendment. There
is no merit in this contention.

The charges which the trial court held to be sufficient
as recall charges read:

Paragraph II:

"That on or about August, 1929, the said William. J.
Houghton, without any authorization by the school
board of said school district, and while a director and
clerk thereof, purchased a bill of goods from Deiwert-Swarm
Hardware Company, Everett, Washington, for
said school district, one item thereof being a brace
costing $6.50, all of which goods was delivered to said
William J. Houghton, for said school district and was
paid for out of funds belonging to said school district,
but the said William J. Houghton has never delivered
or otherwise accounted for said brace to said school
district."

and paragraph III:

"Sometime during the months of July or August,
1929, said William J. Houghton, as such school director
and clerk, executed and delivered a right-of-way deed
or permit to the city of Everett, for a one hundred
foot right-of-way through the Glenwood school
grounds belonging to said district, though no action
had been taken by said school district, as such, authorizing
the issuance of such deed or permit and

           STATE EX REL. WALTER v. HOUGHTON.           223
 Nov. 1931          Opinion Per HOLCOMB, J.

without any definite discussion by said board as to the
value or price to be asked for such right-of-way, and
without any appearance before said school board by
any representative of said city, and no money or other
consideration of value has ever been paid to said school
district for said right-of-way."

and the latter half of paragraph VI, to-wit:

"And further, in that in or about the month of June,
1930, said William J. Houghton as such school director
and clerk, sanctioned the hiring by said school board
of the said F. W. Cushman, while the latter was a fellow
school director, to grade the high school grounds
belonging to said school district, and sanctioned the
payment of said F. W. Cushman for said work out of
funds belonging to said school district, contrary to the
provisions of Sec. 4873 of Rem. Comp. Statutes of Wash." (Should
be SS 4783.)
and paragraph VII:

"That said William J. Houghton, committed a further
act of misfeasance and malfeasance while in office
and violated his oath of office, in that with Martin
Robinett, a fellow school director, he did, immediately
prior to the annual election of said district held on
March 7, 1931, willfully and secretly conspire and
agree, that in the event said F. W. Cushman should be
reelected as director, that they, as school directors,
would refuse to issue a new contract to Oscar Hiaasen,
school superintendent, but that in the event that the
opponent of said Cushman, O. E. Swartzmiller, should
be elected as school director, they would vote to retain
said Hiaasen as school superintendent, and said William
J. Houghton at the meeting of said school board
held on the 9th day of April, 1931, did, in conformity
with said secret agreement, vote to refuse to renew the
contract with said Oscar Hiaasen, solely because said
F. W. Cushman was re-elected as school director of
said district for another term."

[2, 3] As to the remaining contentions of appellant,
this court has decided that the legality of the
proceedings

 224    STATE EX REL. WALTER v. HOUGHTON.
                Opinion Per HOLCOMB, J.           165 Wash.

for a recall election and whether they comply with
the law, is a judicial question for determination by the
courts, Gibson v. Campbell,
136 Wash. 467, 241 Pac. 21;
and that, under our recall statute, the charges must be
set out in language as specific and definite as the
language of a criminal information. Cudihee v.
Phelps, 76 Wash. 314, 136 Pac. 367. Also, Gibson
Campbell, supra.

[4] There can be no question but that the charge
stated in paragraph two of the petition, held sufficient
by the trial court, although concerning a very petty
matter which would constitute nothing more than petit
larceny, nevertheless states an offense which would
constitute a misdemeanor if stated in the language of
a criminal information at law.

Paragraph three of the petition for recall beyond
any question alleges the giving away of property
or valuable rights by way of easement by appellant as
director and clerk without any right or authority.
Whether or not this would constitute a criminal offense,
is unnecessary here to determine, inasmuch as
the charge is sufficient as a charge of defrauding the
school district of valuable rights or property.

The latter half of paragraph six sustained by the
trial court alleges a transaction which is prohibited
by the section of the statute referred to; and, being
lawful by virtue thereof, is a sufficient charge for
recall.

As to paragraph seven, the court is divided, but the
majority consider that the charge therein constitutes
nothing more than an allegation that appellant indicated
an intention to abide by the will of the electors
as expressed in the vote for school director, and that
this case is not controlled by our decision in Pybus v.
Smith, 80 Wash. 65, 141 Pac. 203, Ann. Cas. 1915A,
1145, L. R. A. 19151 285.

                          IN RE DORE.                225
 Nov. 1931               Statement of Case.

The judgment of the trial court is therefore affirmed
in all things, except as to paragraph seven of the recall
charges.

TOLMAN, C. J., MAIN, MILLARD, and BEALS, JJ.,
concur.