44 Wn.2d 371, THE STATE OF WASHINGTON, on the Relation of Charles B. WELSH, Plaintiff, v. JOHN J. LANGENBACH, as Judge of the Superior Court for Pacific County, Respondent

[No. 32785. Department Two.      Supreme Court      March 9, 1954.]

THE STATE OF WASHINGTON, on the Relation of Charles B.
WELSH, Plaintiff, v. JOHN J. LANGENBACH, as Judge of the
      Superior Court for Pacific County, Respondent.1

[1] MUNICIPAL CORPORATIONS - OFFICERS - VACANCIES - TERM OF OFFICER APPOINTED TO FILL VACANCY - MILITARY SERVICE - CITY ATTORNEY. An attorney who was appointed city attorney by the mayor when the elected city attorney was called into military service, became city attorney upon his appointment and was entitled to hold the office during the absence of the elected city attorney while in military service or until the expiration of the term for which he was elected, whichever event first occurred; in view of RCW 73.16.040, providing that when an elective officer is ordered into active service he shall be deemed to have been granted leave of absence for such period of service, which leave of absence shall not operate to extend the term for which he has been elected, and further providing that during such leave of absence his position may be filled by the officer, board, or other agency authorized to fill a vacancy in such office created by death or resignation.

Certiorari to review a judgment of the superior court for Pacific county, No. 12510, Langenbach, J., entered December 23, 1953, upon findings in favor of the plaintiff, in an action in quo warranto, tried to the court. Affirmed.

Brodie & Fristoe, for relator.

Smith Troy and Philip W. Richardson, for respondent.

1 Reported in 267 P. (2d) 715.

[1] See 167 A. L. R. 124.

 372    STATE EX REL. WELSH v. LANGENBACH.      [44 Wn. (2d)

GRADY, C. J. -

This proceeding is before this court for a review of the judgment of the superior court adjudging Fred M. Bond to be entitled to hold the office of city attorney of South Bend, Washington.

In June 1951, Fred Schwarz was elected to the office of city attorney of South Bend for a term of four years. In August 1951, he was called to active duty in the military service of the United States as provided in RCW 73.16.030. On August 30, 1951, the mayor of South Bend appointed Fred M. Bond to act as city attorney. On June 1, 1953, the successor of the mayor who had appointed Bond appointed Charles B. Welsh to act as city attorney of South Bend.

RCW 73.16.040 provides as follows:

"When any elective officer of this state or any political subdivision thereof, including any judicial officer, shall be ordered into active service as provided in RCW 73.16.030, he shall be deemed to have been granted leave of absence for such period of service. In the case of any judicial officer, such order to active service shall be deemed to create a case of extreme necessity and the governor shall extend the leave of absence to cover the period of such active service. No leave of absence provided for herein shall operate to extend the term for which the occupant of any elective position has been elected. During such leave of absence the position of any elective official may be filled temporarily by any appointment to be made by the officer, board, or other agency which would be authorized to fill a vacancy created by the death or resignation of the elective official so ordered to such service." (cf. Laws of 1941, chapter 201, 2, p. 593.)

[1] By virtue of the foregoing statute, Bond became city attorney of South Bend upon his appointment and was entitled to hold the office during the absence of Schwarz while in military service or until the expiration of the term for which he was elected, whichever event first occurred.

The judgment is affirmed. The remittitur shall go down forthwith.

SCHWELLENBACH, HILL, DONWORTH, and WEAVER, JJ., concur.