State Ex Rel. Ennis v. Superior Court for Spokane County,

          STATE EX REL. ENNIS v. SUPERIOR COURT.      141
 July 1929          Opinion Per BEALS, J,

council of that city has no power to remove him from
the office of civil service commissioner.

The present charter of the city of Spokane was
adopted by the people of that city December 28, 1910,
pursuant to Rem. Comp. Stat., SS 8947 et seq. Section
52 of this charter, creating the civil service commission,
pursuant to which section relator was appointed,
reads as follows:

"There is hereby established a civil service
commission, which shall consist of three members, who
shall be appointed by the council, and shall serve
without compensation, and whose term of office shall be
for six years, except as herein next provided. The
council first elected under this charter, as soon as
practicable after its election, shall appoint one member
of said commission to serve for two years, one member
to serve for four years, and one member to serve for
six years. Any vacancies in the commission shall be
filled by the council for the unexpired term."

The following sections of the charter refer to the
removal of officers of the city, and we understand that
it is conceded that, if the city council has authority
to remove relator from his office, such authority is
vested in it by virtue of the following charter provisions:

"Section 3. By and in the corporate name, the city
shah have perpetual succession; shall have and exercise
all powers, functions, rights and privileges now
or hereafter given or granted to, and shall be subject
to all the duties, obligations, liabilities and limitations
now or hereafter imposed upon, municipal corporations
of the first class, by the constitution and laws of the
state of Washington; and shall have and exercise all
other powers, functions, rights and privileges usually
exercised by, or which are incidental to, or inhere in,
municipal corporations of like character and degree."

"Section 4. All power of the city, unless otherwise
provided in this charter, shall be exercised by, through
and under the direction of five commissioners, who

 142    STATE EX REL. ENNIS v. SUPERIOR COURT.
               Opinion Per BEALS, J.           153 Wash.

shall constitute the council and one of whom shall be
the mayor. The commissioners and council shall be
subject to the control and direction of the people at
all times, by the initiative, referendum and recall,
provided for in this charter."

"Section 24. The council, after each general election,
shall appoint a clerk, corporation council, city
engineer, labor agent and purchasing agent. The
council may remove any of said appointees at any
time.

"The council shall have power to create and discontinue
all other officers and employments from time to
time as occasion may require, but the appointment
and removal of persons filling such offices and
employments shall be as hereinafter provided."

"Section 25. Each commissioner shall have power
to appoint and remove the administrative heads of all
subdivisions in his department; Provided, however,
that the head of any subdivision shall not be deprived,
by any such removal, of the standing under the civil
service provisions of the charter, which he may have
had before his appointment as head of a subdivision."

"Section 36. No officer or employee of the city shall
solicit or receive any pay, commission, money or thing
of value, or derive any benefit, profit or advantage,
directly or indirectly, from or by reason of any
improvement, alteration or repair required by authority
of the city, or any contract to which the city shall be
a party, except his lawful compensation or salary as
such officer or employee. No officer or employee of
the city, except as otherwise provided in this charter,
shall solicit, accept or receive, directly or indirectly,
from any public service corporation, or the owner of
any public utility franchise in this city, any pass, frank,
free ticket, free service or any other favor upon terms
more favorable than those granted the public generally.
A violation of any of the provisions of this section
shall disqualify the offender to continue in office or
employment and he shall be removed therefrom."

"Section 41. A park board is hereby created which
shall consist of ten (10) electors of the city of Spokane,
who shall be appointed by the council; and one member

           STATE EX REL. ENNIS v. SUPERIOR COURT.      143
 July 1929              Opinion Per BEALS, J.

of the council to be designated by the council. The ten
appointed members of the park board existing at the
time of the adoption of this charter shall continue to
serve respectively until the first Tuesday of February
next preceding the expiration of their terms, as at
present fixed, and until their successors are appointed.
The council shall have power to remove any member
for cause and to fill vacancies in the board."

Relator contends that, because SS 52, supra, does not
provide for the removal of civil service commissioners
by the city council, because § 36, supra, does not
provide for the manner of removal oœ city officers charged
with misfeasance or malfeasance in office, and because
the city charter specifically provides the method to
be followed in removing all other officers of the city,
civil service commissioners may not be removed from
office by the city council, but may be so removed by the
superior court in a proceeding by way of quo warranto,
and that, as to the removal from office of civil service
commissioners, the procedure by quo warranto is
exclusive.

On the other hand, it is urged on behalf of respondent
that the powers of the commissioners of the city
of Spokane who form the city council of that city are,
as to municipal affairs, unlimited, save as circumscribed
by the constitution of the state or by express
legislative enactment, and that the city council is vested
with jurisdiction to remove relator from office.

Rem. Comp. Stat., §§ 8981 and 8982 (referring to
the adoption of charters by cities of the first class, the
city of Spokane falling within that classification), read
as follows:

"Section 8981. Any city adopting a charter under
the provisions of this act shall have all the powers
which are now or may hereafter be conferred upon
incorporated towns and cities by the laws of this state,
and all such powers as are usually exercised by

 144    STATE EX REL. ENNIS v. SUPERIOR COURT.
                Opinion Per BEALS, J.           153 Wash.

municipal corporations of like character and degree,
whether the same shall be specifically enumerated in
this act or not."

"Section 8982. The rule that statutes in derogation
of the common law are to be strictly construed shall
have no application to this act, but the same shall be
liberally construed for the purpose of carrying out
the objects for which this act is intended."

Relator urges that, because the city charter provides
the method of removal of all other officers of the city
and does not specifically set forth the method of removal
of civil service commissioners, it must have been
intended by the framers of the charter that civil service
commissioners could be removed only by some authority
without the city government. In support of this
proposition, it is argued that the civil service
commission is an independent body, created by the charter,
whose duty it often is to pass as a reviewing authority
on the action of members of the city council relative to
city employees in their respective departments, and
that, for this reason, it was the intention of the framers
of the charter that the civil service commission could
not be removed by the city council, but that their
tenure of office should not, after appointment, be in
any manner dependent upon that body.

Relator cites, in support of his contention that the
trial court erred in refusing to grant the writ of
prohibition which he sought, several decisions of this
court which will now be considered.

In the case of State ex rel. Forstell v. Otis,
131 Wash. 455, 230 Pac. 414, it was held that quo warranto,
and not mandamus, was the proper remedy, where the title
to the office of city councilman was in question, because
of the fact that a councilman from one ward
had, after his election, changed his residence to another
ward. After making such change of residence, the

      STATE EX REL. ENNIS v. SUPERIOR COURT.      145
 July 1929          Opinion Per BEALS, J.

mayor of the city refused to recognize the councilman
as longer holding his office, although his term had not
yet expired, whereupon the councilman applied to the
court for a writ of mandamus requiring the mayor of
the city to permit him to continue to act as a member
of the city council. A motion to dismiss the proceeding
was interposed by the respondents therein, based upon
the ground that the pleading showed a contest "with
reference to the right and title to an office," which
motion was granted by the superior court upon the
ground that mandamus was not the proper remedy.

In considering the question, this court says:

"This court has many times held that, wherever the
title to an office, or the right to it, is involved, and
where it is necessary to determine from the facts outside
the pleadings as to who is entitled to the office,
mandamus is not the proper remedy, but that the
person claiming the office must resort to quo warranto."

On appeal, it was held that relator had no remedy
by way of mandamus, and the judgment of the trial
court was affirmed.

In the course of the opinion in the case last cited,
attention is called to the fact that:

"The sole question in this case is whether the
petitioner has mistaken his remedy; whether the relief
which he seeks is to be obtained through mandamus
or quo warranto."

Rem. Comp. Stat., SS 9127, subd. (k), which contains
the following provision, was cited:

"The removal of a councilman from the ward for
which he was elected shall create a vacancy in such
office."

Relator contended that his removal from the ward
from which he was elected did not of itself create a
vacancy, but that to create a vacancy some
determination,

 146    STATE EX REL. ENNIS v. SUPERIOR COURT.
                Opinion Per BEALS, J.          153 Wash.

judicial or otherwise, of the fact of his removal
was necessary.

In the case at bar, an entirely different question is
presented and we do not find that the case last referred
to assists us in its determination.

Relator also cites the case of Price v. Seattle,
39 Wash. 376, 81 Pac. 847, in which this court held that
the removal of a driver, employed by the street department
of the city of Seattle, holding a classified civil
service rating, by the superintendent of streets, was,
under the circumstances of that case, not subject to
review by the courts on an application by the removed
employee for a writ of mandamus. The case is not
in point upon the question here presented, as the employee
of the city, who was discharged by his superior
officer, was not holding for a definite term, and was
removed in accordance with the provisions of the city
charter directly providing for such removal.

In the case of State ex rel. Evans v. Superior Court,
92 Wash. 375, 159 Pac. 84, it was held that the mayor
of the city of Tacoma had no authority to revoke the
appointment of one of the justices of the peace for
Tacoma precinct as police justice of that city, that the
term of the appointment of the justice of the peace
as police justice was coextensive with the term for
which he was elected as justice and that the justice of
the peace held his office as police justice by virtue of
the constitution and general laws, and was not the
"official creature" of the mayor of the city, although
designated by the mayor as police justice. The court
being of the opinion that a justice of the peace, having
been appointed police justice of the city, is a constitutional
officer holding for a specified term, it followed
that the appointment of such an officer as police justice,
once regularly made, could not be summarily revoked

           STATE EX REL. ENNIS v. SUPERIOR COURT.      147
 July 1929              Opinion Per BEALS, J.

by the mayor, in the exercise of the arbitrary will of
the executive.

It cannot be contended that relater, as a civil service
commissioner of the city of Spokane, is a constitutional
officer in the same sense that this term applies
to a regularly elected justice of the peace who has been
by the mayor of his city designated as police justice.
Relator also cites the case of State ex rel. Winsor v.
Mayor and Council of Ballard, 10 Wash. 4, 38 Pac. 761,
as supporting his contention. In that case relator, a
duly elected member of the common council of the city
of Ballard, applied to the superior court for a writ of
mandamus requiring the mayor and council to recognize
him as a member of the common council of that
city. In his petition for the writ, relator alleged his
election as a member of the common council, that a
written statement was filed with the city charging that
relator had been guilty of violation of law by, while a
member of the city council, furnishing lumber to the
city and presenting a bill therefor, and that thereupon
the council passed a resolution declaring relator's office
vacant. To this petition, an answer was filed admitting
relator's election, and alleging that one, Keane, a
member of the council, had charged relator with a violation
of law, as alleged by relator. The answer also alleged
the giving of notice of the charge to relator, the fixing
of a day for hearing the same, relator's appearance
and refusal to answer, and that thereupon a finding of
guilty as charged was made by the council, which then
and there passed a resolution removing relator from
his office and declaring the same vacant. To these
allegations, a demurrer was interposed which the trial
court overruled. It would seem that relator must have
elected to stand upon his demurrer, as thereupon the
superior court dismissed relator's petition and quashed
the alternative writ theretofore issued.

 148    STATE EX REL. ENNIS v. SUPERIOR COURT.
                Opinion Per BEALS, J.      153 Wash.

On appeal, this court reversed the order of the trial
court overruling relator's demurrer, and held that the
power to remove a councilman was not granted to the
city of Ballard by law in express words, that such
power was not necessarily or fairly implied or incident
to the powers expressly granted, and was not essential
to the declared objects and purposes of the corporation.
The court quotes with approval from Dillon on
Municipal Corporations, SS 89, where the doctrine is
laid down that any reasonable doubt as to the existence
of power is resolved by the courts against the
corporation, the application of this doctrine being, of course,
limited to such a municipal corporation as was the city
of Ballard at the time the facts giving rise to the
litigation then before the court arose. The court also held
that the charge upon which relator was removed from
office was insufficient in form, in that it failed to allege
a willful violation of law. With this latter phase of the
opinion, we are not concerned.

The city of Ballard was not a city of the first class,
and therefore could not claim the benefit of the very
liberal statutory provisions enacted by our legislature
defining the powers of such cities.

Rem. Comp. Stat., § 8966, specifically enumerates
many powers which are thereby vested in cities of the
first class. Section 8981, supra, confers general powers
upon such cities, and SS 8982 lays down a rule of
statutory construction for the guidance of courts in passing
upon questions involving the exercise by cities of the
first class of their powers. Rem. Comp. Stat., § 8963,
referring to amendments of city charters, in first class
cities, by direct vote of the people, provides the method
for submission to the voters of charter amendments
"providing for any matter within the realm of local
affairs, or municipal business."

      STATE EX REL. ENNIS v. SUPERIOR COURT.      149
 July 1929          Opinion Per BEALS, J.

In the case of Walker v. Spokane, 62 Wash. 312, 113
Pac. 775, Ann. Cas. 19120 994, this court said:

"It may be conceded from the outset that, while
cities of the first class have the constitutional right
to frame their own charters, the charters so framed
are subject to, and controlled by, general laws. Const.,
art. 11, § 10. And this is all the constitutional
limitation that there is."

The court held that the adoption by the qualified
voters of a city of the first class of proposed
amendments to their charter, establishing what is known as
a commission form of government, was, under Rem.
Comp. Stat., SS 8963, not "beyond the realms of local
affairs or municipal business."

[1] It is evident from the constitution of this state
and legislative enactments that, in Washington, cities
of the first class are vested with very extensive powers,
and that, under Rem. Comp. Stat., SS 8982, supra, the
statutes of this state concerning the same must be
liberally construed by the courts for the purpose of
carrying out the manifest intent of the legislature to
establish cities of the first class as self-governing
bodies, only "subject to and controlled by general
laws." (Walker v. Spokane, supra.)

Manifestly, therefore, a different rule of construction
must be applied in determining the powers of a
city of the first class from that used when the powers
of a city of another classification are in question, and
the opinion of this court in the case under discussion
is not determinative of the question now before us for
consideration. The rule, quoted by this court, laid
down in Dillon on Municipal Corporations, SS 89, to the
effect that "Any fair or reasonable doubt concerning
the existence of power is resolved by the courts against
the corporation, and the power is denied," should not
be followed in determining a question involving the

 150    STATE EX REL. ENNIS v. SUPERIOR COURT.
                Opinion Per BEALS, J.      153 Wash.

powers of a city of the first class, under its charter,
as subject to and controlled by general laws.

The authorities cited by relator do not support his
contention that the city council, in proceeding to
consider the question of his removal from office, is acting
without and beyond its jurisdiction.

McQuillin on Municipal Corporations, vol. 2, p. 1217,
is cited on behalf of respondent, a portion of the text
reading as follows:

"Frequently the power of removal or suspension of
municipal officers is given to the council or governing
legislative body, and in the absence of law vesting
such power elsewhere, it rests with this agency. Under
a charter providing that 'all the corporate powers of
the corporation shall be exercised by the council,' the
power of removal of officers for misconduct which
under the common law is vested in the corporation at
large is by such provision conferred upon the council."

In Dillon on Municipal Corporations (5th ed.), vol.
2, pages 781-784, we find the following:

"Sec. 462. The power to *amove a corporate officer*
from his office, for reasonable and just cause, is one
of the common-law incidents of all corporations. This
doctrine, though declared before, has been considered
as settled ever since Lord Mansfield's judgment in the
well-known case of King v. Richardson, 1 Burr. (K. B.)
517. It is there denied that there can be no power of
amotion unless given by charter or prescription; and
the contrary doctrine is asserted, - that from the reason
of the thing, from the nature of corporations, and
for the sake of order and government, the power is incidental."

"Sec. 464. . . . Has the council, as the representative
of the corporation, the incidental powers of a
corporation, such as the power to amove, or the power
to ordain by-laws? Or is the council in the nature of a
select body, possessing no right to exercise any of the
ordinary incidental powers of the corporation, unless
expressly authorized by charter or legislative grant?.
_

      STATE EX REL. ENNIS v. SUPERIOR COURT.      151
 July 1929          Opinion Per BEALS, J.

The question not being judicially settled as to our
municipal corporations, the opinion is ventured that,
in the absence of an express grant or statute conferring
or limiting the power, the common council of one of
our municipal corporations as ordinarily constituted,
does possess, in the absence of any express or implied
restriction in the charter or other statute, the incidental
power, not only to make by-laws, but, *for cause,
to expel its members, and, for cause, to remove or
provide by ordinance for the removal for just cause of
corporate officers*, whether elected by it or by the
people."

"Sec. 465. Whatever necessity or reason exists for
the right of amotion at common law, with respect to
the corporation at large, would, in the absence of any
controlling legislative provision, seem to exist here not
only as to the doctrine itself, but also *with respect to
that authorized body* by which alone the corporation
acts, and which exercises all the corporate powers and
functions. All of the inhabitants cannot meet and act
in their primary capacity, except in organizations like
the towns in the New England states; and if an implied
or incidental right of amotion exists at all, it must be
exercised by the council or governing body of the corporation.
If it does not exist in the council, it cannot
be delegated to it by an ordinance or by any act of the
corporation, though if the right does exist, its exercise
may, of course, be regulated by ordinance or by-law.
And the right may doubtless, we think, be inferred
from the express power to make needful or reasonable
by-laws, if there is nothing in the charter or legislation
to rebut the inference."

This court, in the case of Bringgold v. Spokane, 27
Wash. 202, 67 Pac. 612, held that the suspension of a
police officer of the city by the board of police was
without authority, and that the right to suspend was
not necessarily included within the right to remove.
In the course of the opinion, it is said:

"Our conclusion, therefore, is, in the light of what
seems to be the weight of authority as discussed above,
that either the power of removal or suspension may be

 152    STATE EX REL, ENNIS v. SUPERIOR COURT.
                Opinion Per BEALS, J.           153 Wash.

exercised within reasonable bounds by the mayor and
council, as the governing body of the municipality, so
that it becomes originally the act of the municipality
itself, but that neither power can be exercised by an
individual or inferior board unless it is expressly
conferred. The power to suspend was not expressly
delegated to the board of police of the city of Spokane,
either by charter or by any ordinance or resolution,
which was the act of the city."

Under the city charter now before us, the city council
is the governing body of the municipality, and exercises,
under the charter and general laws, all lawful
powers of the city not specifically vested elsewhere.

[2] Under the common law, municipal corporations
enjoy very broad powers, including the power of removing
corporate officers. King v. Richardson, 1 Burr.
(K.B.) 517; Richards v. Town of Clarksburg, 30 W.
Va. 491, 4 S. E. 774; Mayor, etc., of Savannah v.
Grayson, 104 Ca. 105, 30 S. E. 693; State ex rel. McMahon
v. New Orleans, 107 La. 632, 32 South. 22; Hawkins v.
Common Council of City of Grand Rapids, 192 Mich.
276, 158 N.W. 953. These citations are important in
considering the question now before us, in view of
Rem. Comp. Stat., SS 8982, supra, directing a liberal
construction of the legislative enactment providing for
the adoption of charters by cities of the first class.

It clearly appearing from the authorities cited that,
at common law, municipal corporations were vested
with authority, acting through their legislative and
governing bodies, to remove municipal officers and
employees, and bearing in mind Rem. Comp. Stat.,
§§ 8981, 8982, supra, we now consider the particular
sections of the charter of the city of Spokane above
quoted, upon the construction of which depends the
determination of the questions at issue in this proceeding.

      STATE EX REL. ENNIS v. SUPERIOR COURT.          153
 July 1929          Opinion Per BEALS, J.

Section 36 of the charter of the city of Spokane,
supra, after forbidding certain acts, on the part of city
officers or employees, concludes,

"A violation of any of the provisions of this section
shall disqualify the offender to continue in office or
employment and he shall be removed therefrom."

The charter does not provide any method for the
removal of any officer or employee of the city who shall
violate the provisions of this section, nor does it
anywhere state by what authority the offender shall be
removed from his office or employment. Sec. 52 of the
charter, supra, creating the civil service commission,
makes no provision for the removal of the civil service
commissioners for malfeasance. Neither does the
charter provide that such commissioners may be removed
only by some authority outside of and apart
from the city government. It leaves the method to
be followed in seeking such removal to be determined
by general rules of law applied to the particular
situation in question.

It is our opinion that, upon the state of facts now
before us, it must be determined that the city of Spokane,
acting through its governing body, its city council,
has authority to hear and determine charges
against a member of its civil service commission and
that the city council may, in a proper case and after
due proceedings had, remove such civil service commissioner
from office.

[3] Relator's argument that, because the civil
service commissioners may be called upon to review
the acts of members of the city council, it was the
intention of the framers of the charter that the city
council should have no authority to remove the commissioners,
may as a practical proposition have merit,
but, in the absence of some affirmative statement in the
instrument itself to that effect, we cannot conclude

 154    STATE EX REL. ENNIS v. SUPERIOR COURT.
                Opinion Per BEALS, J.          153 Wash.

that the charter must be so construed. A basic plan
of government, whether for a city, state, or nation, as
embodied in a charter or constitution, is naturally
framed with a view to call in outside agencies to assist
in its governmental administration to the least possible
extent. The institution of a proceeding by
way of the statutory writ of quo warranto depends
necessarily upon the action of some officer other than
an official of the city, and unless it clearly appears
from a charter of a city of the first class that it was
the intent of the framers thereof to require that such
a portion of the necessary and important city business
be placed in the hands of some agency other than one
pertaining to and a part of the city government, such
a city charter will be construed rather to retain the
power in the city government, than vest the same in
some outside and independent official.

[4] The fact that the charter provides no particular
method for removal of an officer or employee violating
its provisions is immaterial, as it is a simple
matter to improvise a procedure which will give adequate
notice to the accused and provide for a full and
fair investigation and determination of the questions
at issue. We are not now concerned either with the
details of such procedure or with any question as to
what facts may or may not constitute ground for removal
of an officer or employee who may be accused of
violation of the charter.

We conclude that, in proceeding to determine the
question of relator's right to hold his office, the city of
Spokane is not relegated to the remedy of an application
to the court by way of quo warranto, but that the
city council has jurisdiction in the first instance to
proceed to hear and determine the question of whether or
not relator shall continue to hold his office or be
removed therefrom.

                MATTHEWS v. SAULSBERRY.                155
 July 1929          Opinion Per FRENCH, J.

The judgment appealed from is affirmed, and the
order of supersedeas entered herein is dissolved.

FULLERTON, TOLMAN, HOLCOMB, and FRENCH, JJ.,
concur.