Cudihee v. Phelps, 76 Wash. 314 (Pa. 1913)

Parker, J.

The plaintiff, Edward Cudihee, sheriff of King county, commenced this action in the superior court for that county, seeking to have the defendant, Byron Phelps, as county auditor, enjoined from talcing any action upon a petition filed in his office by the defendant, John M. Young, a citizen and voter of King county, demanding the recall and discharge of Edward Cudihee as sheriff, under the provisions of § § 33 and 34 of art. 1 of the state constitution, and chapter 146 of the Laws of 1913, page 454 (3 Rem. & Bal. Code,

§ 4940-1 et seq.), enacted in pursuance thereof. The case proceeded to final hearing upon the pleadings and stipulated facts, resulting in judgment denying the relief prayed for, and a dismissal, from which the plaintiff has appealed to this court. We shall notice the facts as may become necessary in the discussion of the several contentions made by counsel for appellant.

The main contentions of counsel for appellant have to do with the adoption of §§ 33 and 34, art. 1, as an amendment to the state constitution at the general election of 1912, and their claim that those sections never became a valid portion of the constitution. It is first contended that the act of the legislature, chapter 108, Laws of 1911, page 504, proposing and submitting this amendment to the people, is void and ineffectual because of its insufficient and misleading title. The title and body of that act, in so far as we need notice them in this connection, read:

recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office,' stating the matters complained of, signed by the percentages of the qualified electors thereof hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided.

We shall assume, for argument’s sake only, that, when the legislature proposes and submits to the people a constitutional amendment by bill instead of by resolution, the title of such bill must conform to the requirements of § 19, art. 2 of the constitution, providing that: “No bill shall embrace more than one subject, and that shall be expressed in the title.” A comparison of the title with the body of the act will readily show that, instead of the title being narrower than the body of the act, it is, in fact, broader, in that it seems to refer to all public officers, and to the election of successors, while the pro

posed amendment set forth in the body of the act excepts judges therefrom, and makes no provision relative to the election of successors. That the title expresses the entire subject-matter of the body of the act and proposed amendment, if we treat the broader terms of the title merely as surplus-age, seems to us quite plain. The argument of counsel seems to be that, because of its broader expressions, the title is misleading. We áre not able to agree with this contention. The ' view of this court as to the sufficiency of the title of an act is tersely stated by Judge Fullerton, speaking for the court, in Shortall v. Puget Sound Bridge & Dredging Co., 45 Wash. 290, 88 Pac. 212, 122 Am. St. 899, as follows:

See, also, State ex rel. Wolfe v. Parmenter, 50 Wash. 164, 96 Pac. 1047, 19 L. R. A. (N. S.) 707; State ex rel. Zent v. Nichols, 50 Wash. 508, 97 Pac. 728; National Surety Co. v. Bratnober Lumber Co., 67 Wash. 601, 122 Pac. 337. Clearly this title would give to a person of ordinary intelligence notice that the proposed amendment related to the recall of officers. We do not think that the fact that the title seems to indicate that the proposed amendment relates to the recall of all officers, without exception, and to the election of successors, lessens the force of the fact that the title clearly covers the whole subject-matter of the proposed amendment and fairly gives notice thereof. Nor do we think that the title is subject to the objection that it embraces more than one subject, assuming that such objection would be available against the title, apart from such objection to the body of the act. Surely the recall and discharge of an officer, and the choosing of his successor can be legislated upon as one subject in a single act; and, of course, exceptions of certain persons or things from the operation of the effect of a law would not relate to a separate subject-matter. The supreme court of Missouri,

in State ex rel. Wolfe v. Bronson, 115 Mo. 271, 21 S. W. 1125, dealing with a title which was broader in its terms than the act, disposing of the contention that the title was insufficient in the light of a constitutional amendment in substance the same as ours, said:

This is quite in keeping with the views of this court expressed in former decisions touching the sufficiency of titles to acts, and also finds support in the following authorities: State ex rel. Bell v. Frazier, 36 Ore. 178, 59 Pac. 5; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; McEldowney v. Wyatt, 44 W. Va. 711, 30 S. E. 239, 45 L. R. A. 609, 615; 1 Lewis’ Sutherland, Statutory Construction (2d ed.), § 124. We are of the opinion that the title to the act proposing and submitting to the people this constitutional amendment sufficiently expresses the subject-matter of the act and the proposed amendment. We have preferred to deal with the question of the sufficiency of the title to the act rather than with the ques

tion of the necessity of a title thereto, because of the manner in which the record entry of the act appears in the senate and house journals.

It is contended that there was not made upon the journals of the senate and house such entry or record of the proposal of this constitutional amendment as is required by the constitution, and that, therefore, it was not legally proposed and submitted to the people. The proposal of amendments to the constitution by the legislature and the making of record thereof is provided for therein by art. 23, § 1, as follows:

The amendment to the constitution proposed by this act was not recorded in full in the senate journal. The bill for the act was introduced in the house and designated as “House Bill No. 62.” After its passage by the house, it went to the senate. It was there read three times in due course, and passed by the requisite majority, the vote thereon by “ayes” and “noes” being properly recorded in the journal, reference to the bill being therein made as “House Bill No. 62,” followed by its title recorded in full. Reference to the bill was made in this manner in the journal upon its first and second readings, as well as upon its third reading and final passage. Our attention is here called only to the senate journal entries, the argument of counsel assuming that the house journal entries were made in the same manner. This, it is insisted, was not such entry of the proposed amendment upon j oumals of the senate and house as is required by art. 23, § 1, of the constitution above quoted. It is argued that the words “shall

be entered on their journals,” constitutes a mandatory requirement that the proposed amendment shall be recorded in full upon the journals, and that a reference to such an amendment, even though proposed in the form of a bill with a proper title as such, by its number and title set out in full, is not an entering upon the journals within the meaning of this constitutional requirement.

It is apparent, then, that this branch of the case turns upon the meaning of the word “enter” or “entered,” as used in § 1 of art. 23 of the constitution. The decisions are not in harmony upon this question. Some hold that such a constitutional provision is complied with by a memoranda entry made upon the journals by reference to the proposal, using the language of the title of the proposing act or resolution, or other appropriate language if the proposal be by resolution without a title; while others hold that such a constitutional provision is complied with only by a copying of the entire proposed amendment in the journals of the senate and house. The supreme court of California, in the case of Oakland Paving Co. v. Tompkins, 72 Cal. 5, 12 Pac. 801, 1 Am. St. 17, reached the former conclusion, and, we think, correctly. Justice Temple, speaking for the court in that case, said:

to legislative bills; that is, it was proposed as a senate bill and was referred to by title and number. The yeas and nays were entered as directed. It is agreed that the amendment thus proposed was submitted to the people, and received a very large majority of the votes cast . . . All admit that the constitutional requirement must be strictly performed. But it does not follow from this that the language of the instrument must be understood literally. The same rules of construction must be applied, to ascertain what its requirements are, as though it were not mandatory and prohibitory. And we think, when an act commanded or authorized may be done in different ways, either of which would be a strict compliance with the terms of the instrument understood in some common and popular sense, either mode may be pursued, unless some reason is discoverable for holding that one of such modes only will answer. If, for instance, the direction to enter the amendment in the journal is complied with, in some usual and popular sense of the language, either by copying the amendment into the journal or by placing upon the journal an identifying reference only, either will do unless the context shows a different intention.

after it is printed the author is now required to present a copy of the book for the Congressional library. We sometimes read that a certain play of Shakespeare was entered at Stationers’ Hall. We find that the entry really made was a brief identifying reference, preliminary to obtaining license to print. Such instances of the use of the word, and of the phrase in which it occurs, might be multiplied indefinitely, but these are enough to show that this usage is quite common. Now, if we substitute in all these and like cases the word ‘copy’ or the phrase ‘enter at large’ for the word ‘enter,’ we are conscious at once that a great change has been made. Indeed, the mere fact that the qualifying' words ‘at large,’ ‘at length,’ ‘in full,’ do so often accompany the word ‘enter’ is proof that all feel that it is not a synonym of the word ‘copy.’ . . .

The Maryland court of appeals, in Worman v. Hagan, 78 Md. 152, 27 Atl. 616, 21 L. R. A. 716, 719, reached the same conclusion, making the following observations:

posed an amendment to section first of article seven, and that the act was passed by three fifths of all the members elected to each house. It was stated on the journal of each house that ‘An Act to Amend Section One of Article Seven of the Constitution of This State’ was passed, and the yeas and nays are set forth, being more than three fifths of all the members elected to each house. The requirements of the constitution were in all respects observed, unless it is necessary, as maintained by the appellants, that the act should be set out verbatim on the j ournals. Each house had the bill in its possession when it passed it, and the bill was fully and clearly identified by its title. There would have been no greater certainty if every word of it had been recited. We must give a reasonable construction to the words of the constitution. There was but one bill with this title. The entries on the journals of the two houses that this bill had been passed by the yeas and nays, which were stated, described their legislative action as distinctly as it could be expressed. The yeas and nays were associated as closely as possible with the enactment contained in the bill, — that is to say, with the proposed amendment. It was not in the power of any person to mistake the meaning of the entry.”

The following decisions are to the same effect: State ex rel. Adams v. Herried, 10 S. D. 109, 72 N. W. 93; Constitutional Prohibitory Amendment Cases, 24 Kan. 700; In re Senate File 31, 25 Neb. 864, 41 N. W. 981. The supreme courts of Iowa and Nevada entertain a contrary view. Koehler v. Hill, 60 Iowa 543, 14 N. W. 738, 15 N. W. 609; State ex rel. Stevenson v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. 895. Some cases have come to our notice involving constitutional provisions requiring proposed amendments to be “entered in full” upon the legislative journals; but we think the decisions rendered under such provisions are of no aid here. We are of the opinion that the weight of authority, as well as- the better reason, supports the view that it is sufficient compliance with our constitution to enter upon the j ournals of the senate and house reference to the proposed amendment, using the language of the title of the proposing act as was done in the proposal of this amendment. We conclude

that this amendment has not failed of lawful adoption because of the manner in which record thereof was made of its proposal by the legislature.

It is contended that the proposed constitutional amendment was not authoritatively published in the several counties of the state as required by art. 23, § 1, of the constitution, which provides:

By § 2 of the act proposing the amendment, the legislature directed publication thereof, as follows:

This, it will be noticed, when read literally, is an authorization for the secretary of state to publish the proposed amendment for three weeks, instead of three months as specified in the constitution. It is insisted that this is fatal to the validity of the proposed amendment regardless of the time it may have been actually published by the secretary of state, it being argued that any publication by the secretary of state beyond the time specified in the act would be a publication without authority and, therefore, of no avail. It is conceded that the secretary of state did publish the proposed amendment for three full months next preceding the general election of 1912, in a weekly newspaper printed and published in each and every county of the state. Counsel invoke the general rule that an election called without authority of law will be held void, regardless of how fairly conducted.

The question then really is: Was the publication for three months prior to the election made by the secretary of state,

without lawful authority? Such publication was clearly sufficient, unless rendered ineffectual by the mere fact that the words “three weeks” appear in § 2 of the act as above quoted instead of the words “three months” as required by the constitution. After a reading of this entire act purporting to submit to the people this constitutional amendment, having in mind its manifest intent, it seems to us nothing could be plainer than that the legislature intended to propose and cause to be submitted to the people of the state this amendment to the constitution in such manner that it would be constitutionally and legally adopted if ratified by a majority of the electors voting thereon. The very first declaration in the act is that, at the general election to be held in 1912, “there shall be submitted to the qualified electors of the state, for their adoption and approval or rejection, an amendment of article one (1) of the constitution of the state of Washington . . . and which shall read, as follows.” In the light of this declaration, we cannot, escápe the conclusion that the words “three weeks,” found in § 2 of the act, as above quoted, were intended by the legislature to .read “three months,” so as to meet the requirements of the constitution. To hold otherwise would be to convict the legislature of an intention to pass this submission act without any purpose whatever, unless it be to make a mere pretense of satisfying what they conceived to be a public demand, but with a “joker” in the proposal, to the end that the will of the people might ultimately be defeated should they adopt the proposed amendment at the polls. We are of the opinion that the proposed amendment did not fail of adoption because of the use of the words “three weeks” instead of “three months” in § 2 of the act, the proposed amendment having been published in such manner as to satisfy all of the requirements of the constitution by the secretary of state, the officer who was by the legislature directed to publish the same. We conclude that the legislature intended the secretary of state to so publish the proposed amendment, to the end that it might be constitution

ally adopted, if ratified by a majority of the electors voting thereon.

Some contention is made that the title of the act proposing the amendment to the constitution, as well as the expression of the subject-matter of the amendment upon the ballots used by the voters, was misleading to the voters. Section-3 of the act provides for the form of ballots to be used as follows:

This statement of the question on the ballot, it will be noticed, is, like the title, somewhat broader than the provisions of the proposed amendment, in that it seems to refer to all officers without exception, and also to the election of successors. The title of the act, we have seen, served its purpose as such, and was not misleading or deceptive to the members of the legislature, and was therefore sufficient. The same, we think, may be said as to this statement of the subject-matter of the proposed amendment found upon the ballot. Neither the title of the act nor this statement upon the ballot constituted the notice given to the people of the contents of the proposed amendment. That, as we have seen, was published in full for a period of three months in every county in the state. So far as the people were informed of the contents of that amendment, its publication constituted their notice. The statement upon the ballot was not required to be more than a mere reference in very general terms, to the constitu

tional amendment to be voted on. State ex rel. Thompson v. Winnett, 78 Neb. 379, 110 N. W. 1113, 10 L. R. A. (N. S.) 149. This statement upon the ballot clearly would direct the mind of a person of ordinary intelligence to this proposed amendment. No other proposed constitutional amendment of like import was then before the people to be voted upon. The ballot manifestly had reference to this particular proposed constitutional amendment and a vote in the terms as expressed upon the ballot for or against such amendment was a vote for or against this amendment, and no person of ordinary intelligence could have thought otherwise. We are of the opinion that the amendment did not fail of adoption because of the manner of stating the subject-matter thereof upon the ballot.

It must be conceded that there has attended the proposal and submission of this constitutional amendment to the people some informalities out of keeping with ideally correct methods of legislation. But it seems to us the objections claimed to render void the proposal and submission of the amendment to the people deal with matters of form rather than substance. This amendment received, favoring its adoption, 112,320 votes; while against its adoption there were but 46,372. Not only did the people have ample legal notice, as we have seen, of the contents of the proposed amendment prior to the election of 1912, and of the fact that it was to be voted upon at that election, but it is a matter of common history, to which the court will not shut its eyes, that the subj ect of recall, and this proposed constitutional amendment thereon, was one of the public questions uppermost in the minds of our people from the time of the passage of the act proposing the amendment until the vote was had thereon at the 1912 election, a period of nearly two years. In conclusion upon this branch of the case, we quote with approval the language of Judge Haney, speaking for the supreme court of South Dakota, in State ex rel. Adams v. Herried, 10 S. D. 109, 72 N. W. 93:

able construction with the view of ascertaining the intention of the two houses of the legislature and the people in their proceedings taken to effect an amendment; and it is the duty of courts, when that intent is ascertainable from the proceedings taken, to carry it into effect. The action of the two houses, and the will of the people, as expressed by their vote, should not be set aside or disregarded upon purely technical grounds when no material requirement of the constitution has been omitted and where the proceedings taken clearly manifest the intention of these bodies and the people to amend the fundamental law.”

We conclude that the amendment was lawfully submitted to and adopted by the people of the state, and thereby became a part of our fundamental law.

It is contended that the legislature has not passed the necessary laws to carry out the provisions of this constitutional amendment, even conceding that it has been legally adopted by the people. The legislature of 1913 passed an act manifestly intended for that purpose. Laws of 1913, ch. 146, page 454 (3 Rem. & Bal. Code, § 4940-1 et seq.). That act provides, in substance, that, whenever a legal voter desires to demand the recall and discharge of an elective officer, he shall prepare a typewritten charge, reciting that the officer has committed an act or acts of malfeasance, or an act or acts of misfeasance while in office, or has violated his oath of office, stating the act or acts complained of in concise language, verify the same and file it, in case the officer whose recall is demanded be a county officer, with the county auditor. Thereupon the county auditor is required to prepare a synopsis of the charge or charges, constituting a concise statement thereof not to exceed two hundred words, which synopsis is to be embodied in a formal petition, which petition, when so prepared and printed, may be circulated for signatures of voters; and, when signed by twenty-five per cent of the legal voters of the county and properly verified, becomes authority for the county auditor to call an election to determine the question of recall and discharge

of the officer whose recall and discharge is sought. In this case, respondent Young had filed such a petition, the sufficiency of which is not challenged, and the auditor was proceeding to make the synopsis and prepare the formal printed petition for the signatures of the necessary twenty-five per cent of the voters, when this proceeding was commenced in the superior court.

The argument of learned counsel for appellant seems to be that, since the constitutional amendment provides that an officer shall be subject to recall whenever a petition demanding his recall has been filed, “reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office,” that there is thereby contemplated a hearing of a judicial nature to determine the truth of the charges made against such officer before the question of his recall and discharge can be submitted to the people at an election called for that purpose. In other words, the argument seems to be that, since the officer is to be discharged for cause, there is involved* at least in a measure, his right to the office as a property right. We are not unmindful of the general rule that, as between two persons claiming an office, the right thereto is, in a sense, regarded as a property right when involved in a judicial proceeding, but we are unable to see that there is any right of that nature here involved; for, as between the officer and the public, so far as his right to hold the office is concerned, there is manifestly no property right whatever involved. The people, speaking in the manner provided by law, may discharge their public officers for any cause, or without any cause, as their laws may provide. Indeed, the people’s rights are as complete in that respect as when they choose such officer. In other words, as against the people, a public officer, their servant, has no rights whatever, so far as his possession of the office is concerned, which may not be ignored by the people speaking in a lawful manner. While it seems true that, under this constitutional provision, an officer is to be removed for

cause only; yet, the question being purely a political one, unless expressly provided otherwise by statute or constitution, it is manifest that the tribunal before which the sufficiency of the cause is to be tried is that of the people. It may be that the courts have jurisdiction to determine the sufficiency of the statement of the allegations made as cause for removal if presented in a proper proceeding involving the' question of the calling of the election, but the trial of the question of whether such cause actually exists, and as to whether the officer shall be discharged, is to be had before the tribunal of the people and decided by them at the polls. It is not the trial of a question of life, liberty, or property; hence there is not involved any question of due process of law guaranteed by the state or Federal constitution cognizable by the courts. Express constitutional and statutory provisions might make such question triable in the courts, but we have no such provisions. We are of the opinion that the act of the legislature of 1913 amply provides for the carrying out of the provisions of the amendment relating to the recall of public officers, and that it is not defective in that the truth of the charges upon which the officer is sought to be recalled is triable before the people rather than before the courts.

Finally, it is contended that the act of 1913, providing for the carrying out of the provisions of the constitutional recall is not applicable to this case because it is not retroactive in its effect. This law went into effect in June, 1913. The acts of malfeasance charged against appellant, upon which it is sought to have him recalled and discharged, occurred before that time. The right of recall, it is plain, existed in the people immediately upon the adoption of this constitutional amendment which occurred at the general election in 1912, at which election appellant was also elected sheriff of King county. His alleged acts of malfeasance occurred, if at all, after that time and after the fight of the people to invoke the recall provisions of this amendment and become fixed, though there was no remedial statute providing the method of its

exercise. We think this statute should be construed as to its retroactive effect like any ordinary remedial statute. It is manifestly for the purpose of making effective the exercise of a right which was in existence before its passage. In the text of 36 Cyc. 1209, it is said:

This principle, we think, renders appellant’s contention as to the retroactive effect of the law unavailing. We conclude that the judgment must be affirmed.

It is so ordered.

Crow, C. J., Mount, Morris, and Fullerton, JJ., concur.