
    [No. 3189.
    Decided March 3, 1899.]
    E. L. Kimball, Respondent, v. E. D. Olmsted, as Mayor, et al., Appellants.
    
    MUNICIPAL CORPORATIONS OFFICERS—POWER OF REMOVAL—RIGHT TO HEARING-REMEDY FOR RECOVERY OF OFFICE.
    Under § 128 of the city charter of Spokane, which provides that any member of the city board of health “may be removed upon the recommendation of the mayor, by a majority vote of all the members of the city council, or may be removed by the vote of two-thirds of the members of the city council without recommendation of the mayor after charges have been preferred,” where a member of the board is removed by the council upon the recommendation of the mayor, he is not entitled to have charges preferred against him and a hearing granted thereon. (Anders and Fullerton, JX, dissent.)
    Mandamus is not the proper remedy where one has been illegally removed from office, when the legality of the removal is a disputed question, depending upon the construction of statutory provisions. (Anders and Fullerton, JJ., dissent.)
    Appeal from Superior Court, Spokane County.—Hon. William E. Richardson, Judge.
    Reversed.
    
      A. G. Avery, and F. M. Dudley, for appellants.
    
      F. C. Robertson, for respondent.
   The opinion of the court was delivered by

Gordon, C. J.

Prior to the 23d day of August, 1898, tbe respondent was a member of the board of bealtb of tbe city of Spokane. On tbat day tbe mayor of tbe city transmitted to tbe council tbe following communication, viz.:

“ To tbe Honorable President and City Council:
“ Gentlemen—In accordance with Section 128 of tbe City Charter I hereby recommend tbe removal of Hr. E. L. Kimball as a member of tbe Board of Health, and respectfully ask tbat your Honorable Body sustain my recommendation. E. D. Olmsted, Mayor.”

By a vote of the council the recommendation of the mayor was adopted, and thereupon Dr. T. L. Catterson was appointed by the mayor to the position formerly held by the respondent, and this appointment was confirmed by the council. Dr. Catterson immediately went into possession of the office and proceeded to exercise the privileges and perform the duties pertaining thereto. In October the respondent applied to the superior court for an alternative writ of mandate, directed to the mayor and council of the city, requiring them to admit the relator to the office in question and recognize him as the legal incumbent thereof. The case was submitted below upon a demurrer to the alternative writ, which was overruled, and judgment pronounced in relator’s favor. The case comes here upon appeal of the mayor and council: Section 128 of the charter of the city of Spokane is as follows:

“ There shall be a board of health, which shall consist of three physicians, who are entitled to practice their profession under the laws of this state, two of whom shall be physicians in active practice, to be appointed by the mayor and confirmed by the city council, who shall have supervision of all matters appertaining to the sanitary condition of the city and its public institutions. Any member of said board of health may be removed upon recommendation of the mayor, by a majority vote of all the members of the city council, or may be removed by the vote of two-thirds of the members of the city council without recommendation of the mayor after charges have been preferred.”

It is conceded that no charges were preferred against the relator, and the first question to be considered is, Do the words “after charges have been preferred” refer to the entire paragraph relating to removals, or only to removals attempted by the city council without the recommendation of the mayor ? A literal construction of the section makes it evident that the qualification does not extend back or relate to removals made -upon the mayor’s recommendation, and we think there is no ambiguity or incongruity in the provision itself, which requires any other than a literal construction to prevail. Indeed, we think there is much reason why the provision should receive that construction. In the first place, power is given to the mayor to appoint the officer; and, while the power of confirmation is lodged in the council, it is beyond the power of the council to fill the office without the co-operation of the mayor. Having then the power of appointment in the first instance, there is nothing inconsistent in a provision authorizing the mayor to remove the officer with the consent of the council. On the other hand, where the council undertakes to remove the officer without the co-operation of the mayor, there is much reason for the provision which prohibits them from acting until charges have been preferred. He is not their physician. They have not appointed him. They are not proceeding with the consent or the recommendation of the mayor whose appointee he is. Tor these reasons, we think it not unreasonable that the section should provide for a different method of procedure where the removal is attempted by the council from that necessary to be employed where, as in the present instance, the removal is made upon the recommendation of the mayor. So considered, the procedure is in harmony with that prevailing in case of appointment by the governor to offices which, under the law, are permitted to be filled by appointments made by him. State ex rel. McReavy v. Burke, 8 Wash. 412 (36 Pac. 281); State ex rel. Howlett v. Cheetham, 19 Wash. 330 (53 Pac. 349).

In our opinion, the superior court erred in construing this provision of the city charter and a reversal must follow.

Another question arises in the case and, because of its importance, we deem it proper to consider it. It goes to the appropriateness of the remedy to which the plaintiff resorted in the present instance. It is urged by the appellants that mandamus is not the proper remedy where the title to an office is in controversy, and such was the holding of this court in Lynde v. Dibble, 19 Wash. 328 (53 Pac. 370). [Respondent does not controvert the proposition, but contends that it is not applicable to the present case; and asserts that mandamus is the proper remedy to restore one to an office from which he has been illegally removed, and there is much authority to be found in support of his position. But we think that the rule for which the respondent contends cannot be invoked where it does not clearly appear that the removal was illegal; and where the question of the legality is a disputed question, depending upon the construction of statutory provisions, mandamus is not the proper remedy. People ex rel. Wren v. Goetting, 133 N. Y. 569 (30 N. E. 968); People ex rel. Dolan v. Lane, 55 N. Y. 217; Ewing v. Turner, 2 Okl. 94 (35 Pac. 951).

In such a case it seems but reasonable that the law should require a form of procedure to be resorted to, which would require the incumbent of the office to be made a party and thereby enable him to be heard in his own behalf concerning his right to the office. Such a remedy is provided by chapter 2, §§ 5780 to 5787, inclusive, 2 Bal. Code (2 Hill’s Code, §§ 679-686), relating to information in the nature of quo warranto. Section 5780, supra, provides that an information may be filed “when any person shall usurp, intrude upon [into] or unlawfully hold or exercise any public office or franchise in this state, or any office in any corporation created by the authority of the state,” etc. The provisions of that chapter furnish a full, complete and adequate remedy, and, in our judgment, the only appropriate remedy afforded by the law in cases like the present one.

The judgment of the superior court is reversed, and the cause remanded with direction to dismiss the proceeding.

Dunbar and Reavis, JJ., concur.

Anders, J.

(dissenting).—I am constrained to dissent from the conclusions reached by the majority of my associates in this case. It seems to me that it is neither a strained nor unreasonable construction of the section of the city charter, quoted in the majority opinion, to hold that the framers of that section only intended to authorize the removal of members of the board of health “after charges have been preferred.” It will be noticed that the mayor is not vested with the power of removal under any circumstances. The city council alone possess that power. The only thing the mayor can do, if he is dissatisfied with a member of the board of health, is to recommend his removal. And it is conceded by appellants—and properly so—that the council cannot remove such member even by a two-thirds vote of all its members until charges have been made against him, and notice thereof given; but they contend, and the majority of this court in effect says, that a removal may be made by a bare majority of the council, without notice or hearing, upon the recommendation of the mayor. I am unable to assent to this conclusion. In the first place, I am of the opinion that the words “after charges have been preferred,” occurring at the end of the section, refer to and qualify the first, as well as the second, part of the provision, and were intended to limit the power of removal to cases of misconduct or neglect of duty on the part of a member of the board. Sutherland, Statutory Construction, § 259.

In the second place, if I am not correct in my conclusion as to the effect which ought to be given to the concluding words of this section of the charter, then the power of removal without charges being made must have been conferred upon the council by the provision, “Any member of said board of health may be removed upon, the recommendation of the mayor by a majority vote of all of the members of the city council.” When a municipal officer claims to exercise a particular statutory power, he must not only be able to show clearly that he possesses such power, but that he has a clear right to exercise it under the existing circumstances, and in the mode in which he proposes to exercise it. If he claims a right to remove, without notice, or at his own discretion, a person from an office to which he has been legally appointed, he must find his authority in some positive provision of law. Powers not so conferred must be deemed nonexistent.

“All statutes which encroach on the personal property or rights of the individual are to be strictly construed.” 23 Am. & Eng. Enc. Law, p. 383.

Did the provision of the charter last above mentioned authorize the removal of the respondent from his office without the filing of any charges against him? Or was his removal a matter resting in the discretion of the mayor and a majority of the city council? I see nothing-in the language of this provision of the charter warranting an affirmative answer to either of these questions; and I am therefore compelled to conclude that the action of the council, in this instance, was unauthorized and void. That a person should be condemned unheard, or without an opportunity of being heard, is contrary to natural justice, and repugnant to one of the established principles of the common law; and such an act cannot be sanctioned by the courts except by direction of positive law. I think the true doctrine upon the question of the power of a city council to remove a municipal officer was announced by the supreme court of Michigan in Hallgren v. Campbell, 82 Mich. 255 (46 N. W. 381, 21 Am. St. Rep. 557), wherein the court said:

“We shall need to find in the charter of Menominee clear and unequivocal power vested in the council to remove this officer without notice before we can concede that any such power exists. . . . We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause; and, wherever cause must be assigned for the removal of the officer, he is entitled to notice and a chance to defend.”

In the case at bar it is admitted by the demurrer that the respondent was appointed as a member of the board of health for a definite term, and that he was removed before the expiration of his term, without notice, and without any charges having been preferred against him; and the charter under which the removal is claimed to have been made does not expressly declare that the power of removal is discretionary with the council. The facts in this case, it will be noticed, are quite similar to those in the case last-cited. It was also held in the late case of State ex rel. Welch v. Passaic Hospital Ass’n, 59 N. J. Law, 142 (36 Atl. 702), that when the law authorizes the removal of a person from office, but is silent upon the subject of charges, the party sought to be removed is entitled to notice, and must be given an opportunity to be heard upon charges presented against him. See, also, People v. McAllister, 10 Utah, 357 (37 Pac. 578); Pratt v. Board, 15 Utah, 1 (49 Pac. 747); Mechem, Public Officers, §§ 454, 455.

Uor do I think the respondent mistook his remedy. It is a generally recognized rule that mandamus will not lie to try a disputed title to an office, or to compel the admission of a claimant to an office of which he has not had the possession or discharged the duties, and the title to which is in dispute. But, where a person has been in the lawful possession of an office, and is entitled to it of right, and was illegally removed, a. different rule obtains. Under such circumstances, mandamus is a proper remedy to restore the rightful officer to his office, even though the office be in fact in the possession of another appointed as his successor. High, Extraordinary Remedies, § 67; Pratt v. Board, supra; Spelling, Extraordinary Relief, § 1576; Metsker v. Neally, 41 Kan. 122 (21 Pac. 206, 13 Am. St. Rep. 269); Mechem, Public Officers, § 980; Leeds v. Mayor of Atlantic City, etc., 52 N. J. Law, 332 (19 Atl. 780). That the foregoing authorities lay down the rule which ought to be adopted in this state will plainly appear from an examination of the law upon the subject enacted in 1895. That statute provides that a writ of mandate may be issued “to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, board, corporation, or person.” Laws 1895, p. 117, § 16 (Bal. Code, § 5755). It seems to me that this provision alone conclusively settles the question of procedure in favor of the respondent’s contention. I think the demurrer to the alternative writ was properly sustained, and that the judgment should be affirmed.

Eullerton, J.—I concur in what is said by Anders, I.  