Hilzinger v. Gillman, 56 Wash. 228, 105 Pac. 471 (1909).


      [No. 8137. Department One. December 9, 1909.]
GEORGE HILZINGER, Appellant, v. C. C. GILLMAN, as City
           Comptroller, et al., Respondents. 1

MUNICIPAL CORPORATIONS - OFFICERS - ACTIONS - PARTIES -

INTERVENTION - TAXPAYERS. In an action by a councilman to enjoin
the city clerk from certifying to an elector's petition for his
recall, a taxpayer has no interest entitling him to intervene
under Bal. Code, SS 4846, it not being alleged that the clerk
would not defend the action.

MUNICIPAL CORPORATIONS - CHARTER - CONSTRUCTION - RECALL AND
LEGISLATION. There is no conflict between a provision of a city
charter contemplating a recall of a councilman, when his action
is not responsive to the will of the majority, and another section
providing for his removal by the city council for specified
causes.

SAME - RECALL PROVISION - AUTHORITY FOR. A provision in a
city charter adopted by a city of the first class under Const.,
art. 11, SS 10, for the recall of a city councilman, is authorized
by Bal. Code, SS 740, providing that the city council shall have
the powers, and shall be elected at the times, in the manner, and
for the terms prescribed in the charter.

SAME - COUNCILMAN - TERM OF OFFICE - RECALL. A councilman
elected for a definite term fixed by the city charter, which
also contains a provision for his recall by a vote of the electors
of his ward, is elected for a fixed term, subject to a condition
subsequent.

SAME - TERM OF OFFICE - RECALL - IMPEACHMENT. Const., art. 5

SS 3, providing that all officers shall be subject to removal
for misconduct in office, has no application to a removal by
the recall provided for in the city charter, and the advisability
of such recall is a political and not a legal question.


1 Reported in 105 Pac. 471.

                HILZINGER v. GILLMAN.                    229
 Dec. 1909          Opinion Per GOSE, J.

Appeal from a judgment of the superior court for
Snohomish county, Black, J., entered February 11, 1909,
dismissing an action to enjoin the city clerk from certifying to
an elector's petition for a recall, after sustaining demurrers
to the complaint, and overruling a demurrer to a petition
in intervention. Affirmed as to the demurrers to the
complaint and reversed as to the demurrer to the complaint iu
intervention.

Coleman & Fogarty, for appellant.

W. G. McLaren, for respondents.

GOSE

GOSE, J. - This action was instituted by the appellant to
enjoin the city comptroller, who is ex officio city clerk of the
city of Everett, a city of the first class, from certifying to
the city council that a certain electors' petition was sufficient
and in conformity with the provisions of the city charter.
The complaint avers that the appellant has been duly elected
as a councilman to represent the sixth ward in the city, for
the term ending the first Tuesday after the first Monday in
January, 1910; that he qualified and is acting as such; that
the respondent Gillman is the comptroller and ex officio city
clerk; that certain electors, in accordance with section 281 of
the city charter, presented to and filed with the comptroller
a petition, asking for the recall of the appellant as
councilman, for the alleged reason that he is using the influence of
his position to revive a certain franchise to the prejudice of
the city; that the respondent comptroller will certify to the
city council that the petition is sufficient, unless restrained
by an order of the court, and that, if a certificate is filed,
the council will immediately order an election for the purpose
of choosing a successor to the appellant. The charter of the
city is attached to, and made a part of, the complaint.

The respondent Hulbert was permitted to intervene as an
elector and a taxpayer in the city. The appellant demurred
to the petition in intervention, and the intervener and the
respondent comptroller severally demurred to the complaint

 230    HILZINGER v. GILLMAN.
                Opinion Per GOSE, J.               56 Wash.

on the ground that it does not state facts sufficient to
constitute a cause of action. The appellant's demurrer was
overruled, and the demurrers of the respondents were
sustained. Whereupon, the appellant having elected to stand
upon his complaint, the action was dismissed, and the
appeal was taken from such judgment.

The appellant first contends that the intervener has no
such "interest in the matter in litigation" as to entitle him
to intervene under the provisions of Ballinger's Code, SS 4846.
We think he is right in this contention. Without
undertaking to define in what cases a party may intervene, we
are satisfied that an elector and taxpayer has no such interest
in the matter in litigation in this case as to warrant an
intervention. There is no allegation in his petition that the
comptroller will not appear and defend the action. In
Westland Publishing Co. v. Royal,
86 Wash. 899, 78 Pac. 1096,
a suit against a school district upon an alleged contract,
it was held that a resident and a taxpayer in the school
district could not intervene. See, also, Pomeroy,
Remedies & Remedial Rights (2d ed.), SS 424; 17 Am. & Eng.
Ency. Law (2d ed.), pp. 180-185; 11 Ency. Plead. & Prac.,
446, 447. The demurrer to the complaint in intervention
should have been sustained.

In accordance with the power contained in SS 10, art. 11,
of the constitution and the legislation enacted thereunder
(Laws 1890, p. 215 et seq; Bal. Code, SS 735), the city of
Everett, having a population in excess of twenty thousand,
adopted a charter for its own government. Under the provisions
of SS 281 of the charter, certain electors of the sixth
ward of the city, the ward represented by the appellant, filed
with the comptroller a petition for the recall of the appellant
and the election of his successor. This section, so far as is
necessary to a correct understanding of the case, provides:

"See. 281. The holder of any elective office may be
removed at any time during his term by the electors qualified
to vote for a successor of such incumbent. The procedure to

                HILZINGER v. GILLMAN.                    231
 Dec. 1909          Opinion Per GOSE, J.

effect the removal of an incumbent of an elective office shall
be as follows: A petition, signed by voters entitled to vote
for a successor to the incumbent equal in number to at least
twenty-five per centum of the entire vote for all candidates
for the office, the incumbent of which is sought to be removed,
cast at the last preceding general municipal election,
demanding an election of a successor of the person to be removed,
shall be filed with the city clerk; provided, that the petition
sent to the council shall contain a general statement of the
grounds for which the removal is sought. . . . . If the
petition shall be found to be sufficient, the clerk shall submit
the same to the council without delay; and thereupon the city
council shall order, and fix a date for the holding of such
election, . . . . Any person sought to be removed may be
a candidate to succeed himself, . . . At such election if
some other person than the incumbent receives the highest
number of votes, the incumbent shall thereupon be deemed
removed from the office upon the qualification of his
successor."

Section 31 provides that, "All officers elected at said first
election as herein provided shall hold office until the first
Tuesday after the first Monday in January, 1910, unless
removed as in this charter provided." Section 32 provides
that, in all subsequent elections, "the term of office of every
elective officer then elected shall then and thereafter be two
years, unless removed as in this charter provided." Section
25 provides that, "Any elective officer other than a member
of the city council may be suspended by the mayor and
removed for cause by the city council." It then provides that
inability or wilful failure properly to perform his duties, or
the commission of a crime or misdemeanor involving moral
turpitude, absence from the city for twenty days without
consent, open failure or refusal to discharge his duties, the
habitual use of intoxicating liquors to excess, or any
permanent disability preventing the proper discharge of his duties,
shall constitute cause for the removal of any elective officer;
but that "the city council only shall have power to suspend
or remove a member of that body," which may be done for

 232    HILZINGER v. GILLMAN.
                Opinion Per GOSE, J.               56 Wash.

any of the enumerated causes. Ample provision is made in
the charter for direct control over the city council and its
legislation by the initiative and referendum.

Appellant's first contention is that there is a conflict
between the provisions of SSSS 25 and 281 of the charter, in
relation to the removal of a member of the city council, and that
the former, being specific in its nature and relating to a
particular subject, must control. A reading of the two sections
in the light of the charter as an entirety discloses a clear
purpose upon the part of the electors of the city to reserve to
themselves the power to control the entire legislative and
executive policy of the city. Section 282 provides that twenty
per centum of the electors may propose and submit an
ordinance to the council, and that it shall either pass the
ordinance without alteration within a fixed time or submit it to
a vote of the people. Section 283 provides that no ordinance
passed by the council, except when otherwise required by the
general laws of the state or by the provisions of the charter,
except an ordinance for the immediate preservation of the
public peace, health, or safety, which contains a statement of
its urgency and is passed by a two-thirds vote of the council,
shall go into effect before ten days from its final passage; and
if during the ten days a petition, signed by ten per cent of
the electors, be presented to the council, the ordinance shall
be suspended and the council shall reconsider it, and if it is
not entirely repealed it shall be submitted by the council to
the vote of the electors and shall only become effective upon
receiving the sanction of a majority vote. It is apparent
that there is no real conflict between the two sections.
Section 25 provides for a summary removal of an elective officer
for certain specific causes, whereas SS 281 contemplates a
recall of the officer at any time that his official conduct is not
responsive to the wish or will of a majority of the electors in
his precinct or ward. Whilst this section provides that the
reason for the recall shall be stated in the petition, the charter
does not provide that any specific reason shall be necessary

                HILZINGER v. GILLMAN.                233
 Dec. 1909          Opinion Per GOSE, J.

or controlling. The whole scheme or system of the charter
makes it apparent that the right of recall of elective officers
was reserved to the people, to be exercised at any time the
public interest was thought to require it. We have adverted
to the fact that provision is made whereby the incumbent may
submit his official conduct to a vote of the people, and that
if he receives a vote of confidence he continues in office. His
successor is elected and inducted into office under the recall
provision only upon the failure of the incumbent to secure
an indorsement of his stewardship by a majority of the
electorate. Like the British ministry, au elective officer under
the charter is at all times answerable to the people for a
failure to meet their approval on measures of public policy.

It is next urged that there is neither constitutional nor
legislative authority for the recall provision. Section 10,
art. 11, of the constitution provides that, "Any city
containing a population of twenty thousand inhabitants or
more shall be permitted to frame a charter for its own
government consistent with and subject to the constitution and
laws of this state." We need not inquire whether this
provision is self-acting, as the legislature has made ample
provision for giving it effect. Laws 1890, p. 215 et seq. Our
code (Bal. Code, SS 740) which is SS 6 of the Laws of 1890,
provides that, in cities of the first class the mayor and
members of the city council shall have the powers, shall be elected
at the times, in the manner, and for the terms prescribed in
the charter. As was said in Good v. Common Council of
San Diego, 5 Cal. App. 265, 90 Pac. 44:

"The fixing of the tenure of office of the officers of a
municipality subject to removal by the body that elected them
is comparatively new in our system of government, and the
interpretive branch of the law is in rather an undeveloped
state on the subject."

In discussing this question, it is pertinent to inquire for
what term was the appellant elected. This inquiry is
answered by the charter, and the answer is that he was elected

 234    HILZINGER v. GILLMAN.
                Opinion Per GOSE, J.               56 Wash.

to hold office until the first Tuesday after the first Monday
in January, 1910, unless removed for cause or recalled in
the manner provided therein. His term, while in a measure
fixed, was subject to the condition subsequent that twenty-five
per cent of the electorate of the ward from which he was
elected could by petition express their disapproval of his
official action upon one or more measures of local policy, and
demand that he be sustained by a vote of confidence or retire.
Our code (Bal. Code, SS 742) provides that the act empowering
cities of the first class to adopt a governing charter shall
be liberally construed for the purpose of carrying out the
objects for which the law was intended. Both the constitution
and the general law recognize that large, growing cities
should be empowered to determine for themselves, and iu
their own way, the many important and complex questions
of local policy which arise, and it is only when some act in
the execution of that policy conflicts with the general law or
contravenes the constitution, that the act can be questioned.
We do not think that the official act sought to be restrained
exceeds the power conferred upon the city by the general law
or conflicts with it. The following cases are in harmony
with this view: Good v. Common Council, supra; In re
Pfahler, 150 Cal. 71, 88 Pac. 270, 11 L. R. A. (N. S.) 1092:
Ewing v. Seattle,
55 Wash. 229, 104 Pac. 259; Hindman
v. Boyd, 42 Wash. 17, 84 Pac. 609; St. Louis v. Western Union
Tel. Co., 149 U.S. 465, 13 Sup. Ct. 990, 37 L. Ed. 810;
Matter of Carter, 141 Cal. 316, 74 Pac. 997; Attorney General
v. Jochim, 99 Mich. 58, 58 N. W. 611, 41 Am. St. 606.
Whether we treat the power sought to be exercised as being
derived from the constitution subject to the control of the
general law, or as derived from the latter, the result will be
the same. If derived from the constitution, it does not conflict
with the general law, and if derived from the latter it is
within its spirit and purpose.

It is finally urged that the recall provision in the charter
is violative of SS 3, art. 5, of the constitution, which provides

                HILZINGER v. GILLMAN.                    235
 Dec. 1909          Opinion Per GOSE, J.

that, "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." This contention has
been disposed of by what we have said concerning the several
sections of the charter. The people of the city of Everett
in framing the charter intended that their representatives
should be held strictly amenable to both the existing and
changing public sentiment on all local measures, and that if
the official conduct of any elective officer failed at any time
to so respond, he was subject to recall if the majority of
the electorate in his district so determined. The appellant
accepted the trust subject to this power in his constituency,
and the duration of his term of office is dependent upon the
wish of the majority as expressed at the polls. The removal
sought is not of the character provided for in the
constitution. Whether the interests of the city will be better
subserved by a ready obedience to public sentiment than by a
courageous adherence to the views of the individual officer on
questions of public concern, is a political and not a legal
question.

The judgment will be affirmed as to the comptroller, and
reversed as to the intervener, with directions to sustain the
demurrer to his petition.

RUDKIN, C. J., FULLERTON, CHADWICK, and MORRIS, JJ.,
concur.