41 Wn.2d 889, WILLIAM B. MORTON, Respondent, v. L. EARL MCDONALD, as City Clerk of the City of Cle Elum, Defendant, N. J. ZELLER et al., Appellants

[No. 32342. Department One.      Supreme Court      January 27, 1953.]

WILLIAM B. MORTON, Respondent, v. L. EARL MCDONALD, as
           City Clerk of the City of Cle Elum, Defendant,
                N. J. ZELLER et al., Appellants.1

[1] OFFICERS - REMOVAL - RECALL - BALLOT SYNOPSIS AS PART OF RECALL PETITIONS. Under RCW 29.82.020, when a city clerk prepared a ballot synopsis of charges demanding a recall against the mayor of the city, and there was no challenge of that synopsis by either the mayor or the parties who filed the charges, it became a part of the recall petitions.

[2] SAME - RECALL - SUFFICIENCY OF CHARGES - TIME FOR ATTACKING. In such a case, where it appears that some of the charges were sufficient and some insufficient, and the mayor did not challenge the sufficiency of the charges at a time when the insufficient charges could have been stricken and reference to them eliminated from the ballot synopsis, and the recall petitions were circulated, signed, and canvassed, the mayor cannot complain of the fact that some voters may have been induced to sign the recall petition because of the insufficient charges.

[3] SAME. After recall petitions have been circulated, signed, and canvassed, only the complete failure of all of the charges to meet the statutory requirements can justify enjoining the election; one charge meeting the statutory requirement being sufficient.

[4] SAME - RECALL - SUFFICIENCY OF CHARGES. In proceedings for the recall of a mayor, a charge that he had appointed a water commissioner who was not qualified or able to discharge the duties of that office was sufficient; as was likewise the charge that between specified dates he had permitted three houses of prostitution to operate openly and notoriously in the city.

[5] SAME - RECALL - VALIDITY OF PROCEEDINGS. A mayor is not entitled to enjoin the holding of a recall election, where it appears that there was a valid and sufficient charge filed against him, that there was no timely challenge to the inclusion of certain insufficient charges in the ballot synopsis, and that the requisite number of valid signatures was on the recall petitions.

[6] SAME - RECALL - NOTICE TO OFFICER BEING RECALLED. The recall statute requires no notice to the officer being recalled of any step in the recall procedure except notice of the date of the canvassing of the petitions as to the validity of the signatures thereon; and such notice is not the beginning of the "cause of complaint" which the legislature had in mind when it enacted RCW 29.82.160,

1 Reported in 252 P. (2d) 577.

[1] See 106 A. L. R. 555; 28 Am. Jur. 182.

 890    MORTON v. McDONALD. [41 Wn. (2d)

providing that any proceeding to prevent the performance of any act not in compliance with the recall statutes shall be begun within ten days from the time the cause of complaint arises.

Appeal from a judgment of the superior court for Kittitas county, Hamilton, J., entered September 22, 1952, upon findings in favor of the plaintiff, in an action for injunctive relief, tried to the court. Reversed.

Simmons & Yates, for appellants.

Kern & Dano, for respondent.

HILL, J. -

This is an appeal from a judgment restraining a recall election, argued in this court January 22, 1953. This is an emergency matter of public concern, to be speedily heard and determined. RCW 29.82.160; cf. Rem. Rev. Stat., 5363.

Certain voters of the city of Cle Elum, desiring to recall the mayor of that city, filed in the office of the city clerk sixteen charges against him, as required by RCW 29.82.010 (cf. Rem. Rev. Stat., 5350, 5351).

It then became the duty of the clerk, if the acts complained of were acts of malfeasance or misfeasance by the mayor while in office or violations of his oath of office, to formulate a ballot synopsis of such charges of not to exceed two hundred words. Rem. Rev. Stat., 5352. (The revisers compiling RCW eliminated the portion of this section of the statute which we have italicized. See RCW 29.82.020.)Roberts v. Millikin, 200 Wash. 60, 93 P. (2d) 393 (1939).

That section of the statute further provides that the clerk shall notify the persons who filed the charges of the exact language of the ballot synopsis.

The mayor could have, by appropriate proceedings, challenged the sufficiency of any or all of the charges filed against him at any time from the moment they were filed with the clerk. We are satisfied that he could also have challenged the propriety or the sufficiency of the ballot synopsis and restrained circulation of the recall petitions until the questions concerning the ballot Synopsis were adjudicated. The persons who filed the recall charges could

 Jan. 1953]          MORTON v. McDONALD.           891

likewise have challenged the propriety and sufficiency of the ballot synopsis if not satisfied therewith.

We will hereinafter discuss Gibson v. Campbell, 136 Wash. 467, 241 Pac. 21 (1925), in which we held that the person whose recall was sought did not have to commence an action until after his notification of the filing of the signed petitions as provided for in RCW 29.82.080 (cf. Rem. Rev. Stat., 5358). In that case, Gibson had commenced his action within ten days after the signed recall petitions had been filed with the proper officer.

Obviously, the time to determine the sufficiency of the charges and the appropriate wording for the ballot synopsis is before and not after the circulation of the recall petitions. This is demonstrated by the cogent and convincing argument of the respondent that it cannot be presently determined how many voters signed the recall petitions because of one or another of the charges now held to be insufficient.

The statutes covering the recall procedure provide that any proceeding to compel or prevent the performance of any act in relation to the recall not in compliance with those statutes shall be begun within ten days from the time the cause of complaint arises and shall be considered an emergency matter of public concern and take precedence over other cases. RCW 29.82.160; cf. Rem. Rev. Stat., 5363.

[1] In the present case, the clerk eliminated one of the charges, apparently believing that it did not meet the statutory requirement of misfeasance or malfeasance in office or a violation of the oath of office by the mayor, and prepared a ballot synopsis. There was no challenge of that ballot synopsis by either the mayor or the parties who filed the charges, and it became a part of the recall petitions as required by statute. RCW 29.82.020, cf. Rem. Rev. Stat., 5352; Roberts v. Millikin, supra.

After the recall petitions had been circulated and the signed petitions had been filed with the clerk, the mayor brought this action to enjoin the clerk from calling the election. It was conceded at the trial that the canvass of the petitions provided for by RCW 29.82.080 and 29.82.090 (cf.

 892    MORTON v. McDONALD. [41 Wn. (2d)

Rem. Rev. Stat., 5358) showed the requisite number of valid signatures to authorize a recall election.

Two questions of law were presented to the trial court. The first involved the sufficiency of the charges. The trial court found that three of the charges met the statutory requirements and twelve did not. The second was: May a recall election be had when some but not all of the charges have been found to be sufficient? The trial court, relying upon Gibson v. Campbell, supra, answered this question in the negative and enjoined the election.

[2, 3] The answer should have been in the affirmative. The respondent mayor, not having challenged the sufficiency of the charges at a time when the charges now held to be insufficient could have been stricken and reference to them eliminated from the ballot synopsis, cannot now complain of the fact that some voters may have been induced to sign the recall petition because of charges now held to be insufficient. The rule is that, at this state of the proceedings, the recall petitions having been circulated, signed, and canvassed, only the complete failure of all of the charges to meet the statutory requirements can justify enjoining the holding of the election; one charge meeting the statutory requirement is sufficient. Thiemens v. Sanders, 102 Wash. 453, 173 Pac. 26 (1918); State ex rel. Walter v. Houghton, 165 Wash. 220, 4 P. (2d) 1110 (1931); People ex rel. Elliot v. O'Hara, 246 Mich. 312, 224 N. W. 384 (1929); Amberg v. Welsh, 325 Mich. 285, 38 N. W. (2d) 304 (1949).

The respondent mayor now makes the contention, in support of the judgment of the trial court, that none of the charges are sufficient. The trial court having found that three of the charges are sufficient, the appellants challenge the right of the respondent to make the contention, on this appeal, that none of the charges are sufficient.

[4] While we agree that the contention urged by the respondent can properly be made in support of the judgment appealed from (see Latimer v. Western Machinery Exch., 40 Wn. (2d) 155, 167 et seq., 241 P. (2d) 923), we are of the opinion that the charge that the mayor appointed

 Jan. 1953]          MORTON v. McDONALD.           893

a water commissioner who was not qualified or able to discharge the duties of that office was sufficient, and that likewise was the charge that between January 4, 1949, and January 1, 1952, the mayor had permitted three houses of prostitution to operate openly and notoriously in the city of Cle Elum. We are not concerned with the truth or falsity of these charges, only with their statutory sufficiency. State ex rel. Walter v. Houghton, supra. (The Latimer case, supra, is again before this court, on rehearing En Banc, but the particular proposition on which it is here cited is not challenged on the rehearing.)

[5] There being a valid and sufficient charge filed against the mayor, there having been no timely challenge to the inclusion of the insufficient charges in the ballot synopsis, and there being the requisite number of valid signatures on the recall petitions, the respondent mayor is not entitled to enjoin the holding of the recall election.

[6] The distinction between this case and Gibson v. Campbell, supra, so heavily relied upon by respondent and the trial court, is that in that case no one of the charges was held to be sufficient. If that had been the situation here, we would affirm the trial court. However, we are not in accord with any inference in the Gibson case that the attack on the sufficiency of the charges could not have been made at an earlier date. In our opinion in that case, unjustified emphasis was given to the fact that no notice was given Gibson that he was being recalled until the notice required by RCW 29.82.080 (cf. Rem. Rev. Stat., 5358). Significantly, the recall statute requires no notice of the charges against him to the officer being recalled, or of the date of their filing, or of the date of the filing of the ballot synopsis, or of any other step in the recall procedure with the exception herein noted. Recall is a matter of public knowledge; it is assumed that an officer knows when a recall is under way and will be sufficiently interested to keep himself informed as to what is transpiring. The one thing of which it is required that he be given notice is the date of the canvassing of the petitions as to the validity of the signatures thereon, and that requirement is as follows:

 894    MORTON v. McDONALD. [41 Wn. (2d)

"Upon the filing of a recall petition [referring to petition which has been circulated and signed] in his office, the officer with whom the charge was filed shall stamp on each petition the date of filing, and shall notify the persons filing them and the officer whose recall is demanded of the date when the petitions will be canvassed, which date shall be not less than five or more than ten days from the date of its filing." RCW 29.82.080; cf. Rem. Rev. Stat., 5358, part.

This notice, despite our statement in the Gibson case, supra, that Gibson was not required to take any action until he received that notice, is not the beginning of the cause of complaint which the legislature had in mind when it said,

". . . any proceeding to compel or prevent the performance of any such act [i.e., any act not in compliance with the recall statutes] shall be begun within ten days from the time the cause of complaint arises. . . ." RCW 29.82.160; cf. Rem. Rev. Stat., 5363.

Reversed and remanded, with instructions to the superior court to dissolve the restraining order (injunction)and dismiss the action.

GRADY, C. J., MALLERY, WEAVER, and OLSON, JJ., concur.

Since prompt action is necessary to prevent this litigation from becoming moot, and because the recall statute declares that this is an "emergency matter of public concern," the undersigned judges of the supreme court direct that the remittitur shall go down forthwith.

GRADY, C. J., HILL, MALLERY, DONWORTH, WEAVER, and OLSON, JJ.