In my opinion, the conclusions and discussions in the majority opinion upon all questions involved herein are correct, except one: Were the charges sufficient? The majority opinion says that the charges are couched in very general terms.
The constitutional provision merely is that the petition for recall shall "state the matters complained of," and the statutory provision is "shall state the act or acts complained of in concise language without unnecessary repetition;" the statutory provision is a legislative compliance with the constitutional mandate, the requirement that the petition shall state, without unnecessary repetition, in concise language, the act or acts complained of being in the interests of intelligibility and economy.
The majority opinion construes the statutory language as if it were of the same effect as the statute applying to criminal charges where the statutory requirement is that the charges "shall state the act or acts complained of in concise language without unnecessary repetition."
The court should take into consideration the difference in the objects and purposes of the two different statutes. A criminal statute is never to be construed as including more than was intended, for penal statutes are to be construed strictly, to the end that offenses not entitled to be included shall not be prosecuted (State v. Larson, 119 Wash. 123, 204 P. 1041); and in criminal prosecutions, the charge should be so definite as to apprise the accused of the precise offense with which he is charged, and in such concise language as to prevent any misunderstanding of the charge.
The object of the recall statutes (and whether wise *Page 479 or unwise is none of our concern) is to remove a public officer without judicial proceedings, that is, upon purely political proceedings. It is an additional remedy provided by the people by their own lawmaking power. A person need not be guilty or even probably guilty of any penal offense to be amenable to recall under this political method of recall. The same exactitude, or any approach thereto, is never required in non-judicial that is generally required in judicial procedure.
The charges are quoted in the first part of the majority opinion. Conceding, for the sake of argument, that several of them ought to be held by any court passing upon the sufficiency of the petition to be merely negative accusations, and not definite statements of any "acts," and ought not to be permitted to be used as bases of recall proceedings, nevertheless, there are some definite and specific charges stated in plain and concise language and without unnecessary repetition. In such purely political affair, it is not for the courts to "strain for jurisdiction;" nor to construe statutes otherwise than broadly; nor to be keen to separate wheat from chaff. The fourth charge in the petition is that the sheriff sought to be recalled,
". . . has allowed state and federal prisoners lawfully confined in the county jail in his charge to leave their places of confinement and visit the cities of Montesano and Aberdeen for considerable periods of time, and to return at their own pleasure, and on at least one occasion to attend a prize fight; some of them on numerous occasions returning in an intoxicated condition."
This charge is certainly an accusation of neglect and nonfeasance in office, and would probably be sufficient for removal by judicial charges if sustained by sufficient proof. In this kind of a proceeding, it is certainly *Page 480 not necessary to state with precision such details as to times, places and persons as would be necessary in a criminal prosecution or, perhaps, in a judicial proceeding for removal. The fifth charge is that
". . . he has employed persons sentenced to the county jail to labor upon his own ranch and buildings for his enrichment, profit and benefit, all without any benefit to the county, and in violation of the laws of the state."
This charge is also certainly an accusation of misconduct and malfeasance in office, and if used as the basis of judicial proceedings for removal would probably be sufficient therefor, if sustained. In a merely political proceeding to remove, it certainly is not, and should not, be necessary to make any specification as to the exact number of prisoners so employed by the sheriff for his own enrichment, profit and benefit, or the time of occurrence, or the names of the prisoners.
While it is true that, under the statute, the superior court has power to enjoin the recall election if the provisions of the act (§ 5363, Rem. Comp. Stat.) are not complied with, as shown in the majority opinion, the charges stated in the petition for recall of a public officer at least should be treated as are the charges in indictments or informations, where more than one count is permitted to be alleged. Any charge or count that is not sustained should be ignored, and any charge or count that is not sufficiently stated should be treated as surplusage. That is the only justifiable similitude to the penal statutes and criminal proceedings.
Charges four and five in the petition for recall being clear compliances with the provisions of the statute for recall of public officers, and the statute not being subject to the strict construction given penal statutes, I am clearly of the opinion that the petition was sufficient, *Page 481 and the judgment of the trial court should be reversed.
TOLMAN, C.J., and FULLERTON, J., concur with HOLCOMB, J.