1 Reported in 106 P.2d 1077. This is an original application in this court for a writ of prohibition to prevent the superior court of Whatcom county from taking further action in a quo warranto proceeding.
The relator, Julius W. Austin, was elected a county commissioner of Whatcom county for a term of two years, on November 6, 1934. He was re-elected on November 3, 1936, for a term of four years. During the two-year term, he and one of the other commissioners sold two rock crushers and their fittings, which were the property of the county, to one Nate Schuman, without complying with the law for the sale of personal property owned by a county. Thereafter, and during the second, or four-year, term, an action was brought by the county against the relator and a number of other defendants for the recovery of the value of the rock crushers. On December 4, 1939, a judgment was entered against the relator and a number of the other defendants in the action in the sum of six hundred dollars, upon which a credit of $199.09 was allowed. From that judgment, the relator appealed and, subsequently, filed a supersedeas bond.
Subsequently, and on December 28, 1939, this action in quowarranto was instituted by the prosecuting attorney *Page 63 of Whatcom county for the purpose of ousting the relator from the office to which he had been elected, by reason of the fact that he had breached the condition of his bond as such commissioner, in that he had not faithfully performed the duties of his office. To the information, the relator demurred, and filed a motion to make more definite and certain and to strike. The demurrer was overruled, and the motion was denied. Thereupon, the relator applied to this court for a writ of prohibition to prevent the court from further proceeding.
Rem. Rev. Stat., § 9950 [P.C. § 2349], provides that:
"Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer:
"1. The death of the incumbent;
"2. His resignation;
"3. His removal;
"4. His ceasing to be an inhabitant of the district, county, town, or village for which he shall have been elected or appointed, or within which the duties of his office are to be discharged;
"5. His conviction of an infamous crime, or of any offense involving a violation of his official oath;
"6. His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law;
"7. The decision of a competent tribunal declaring void his election or appointment;
"8. Whenever a judgment shall be obtained against such officer for breach of the condition of his official bond."
[1] The first question is whether this section of the statute, at least in so far as subd. 8 is concerned, was repealed, by implication, by subsequent legislation, and in this regard attention is called to Rem. Rev. Stat., §§ 9935 and 9936 [P.C. §§ 513, 514]. These sections are a part of an act of the legislature (Laws of *Page 64 1889 and 1890, p. 34), entitled "An Act concerning official bonds." One of the sections provides for the procedure when a bond shall become insufficient, and the other provides for an additional bond and what the result would be if such a bond was not filed. The statute (§ 9950, which is quoted above) covers the matter of when an office becomes vacant and specifies the events the happening of which shall operate to vacate an office.
The sections of the statute above mentioned, covering the matter of bonds, are not in any way in conflict with § 9950. The subject matter of the latter statute is entirely different from the subject matter of the other two. There was no implied repeal.
[2] The next question is that the prosecuting attorney had no right to institute quo warranto proceedings without first having submitted the matter to the board of county commissioners for a declaration of vacancy.
In State ex rel. Forstell v. Otis, 131 Wash. 455,230 P. 414, the court had before it a statute which provided that "`The removal of a councilman from the ward for which he was electedshall create a vacancy in such office;'" and it was there held that there was no necessity for an adjudication of vacancy prior to the one that might be had in the quo warranto proceeding. Subdivision 8 of the statute that we are now considering provides that an office shall become vacant whenever a judgment shall be obtained against such officer for breach of the condition of his bond. The statute which the court was there considering and the one which we now have before us are, in effect, substantially the same.
The case of State ex rel. Austin v. Superior Court, 2 Wash. 2d 46, 97 P.2d 171, has no application here, because, in that case, the court was considering a *Page 65 statute which made it the duty of the county commissioners, in the first instance, to determine the sufficiency of the sureties on an official bond of a county officer. There is no such provision in the statute which we are now considering. The prosecuting attorney had the right to proceed in quo warranto, as he did.
[3, 4] The next question is whether a quo warranto proceeding may be instituted against an officer after the judgment rendered against him has been superseded and is pending in this court on appeal. The statute, by its terms, provides that the office shall become vacant upon the happening of certain events. The vacancy occurs by operation of the statute at the time the event takes place. Under this statute, the office which the relator was holding became vacant when the judgment against him was entered for the breach of the condition of his bond.State ex rel. Guthrie v. Chapman, 187 Wash. 327,60 P.2d 245, 106 A.L.R. 640; State ex rel. Knabb v. Frater, 198 Wash. 675,89 P.2d 1046.
The subsequent filing of a supersedeas bond would have no effect upon the vacancy created, which had occurred prior thereto, under the holding in the case of State ex rel. Forstellv. Otis, supra. A supersedeas will not stay a self-executing judgment. State ex rel. Martin v. Poindexter, 43 Wash. 147,86 P. 176; State ex rel. Holcomb v. Yakey, 48 Wash. 419,93 P. 928; Cooper v. Hindley, 70 Wash. 331, 126 P. 916.
[5] A judgment of ouster, if one should be entered in this proceeding, would be self-executing. State ex rel. Austin v.Superior Court, 2 Wash. 2d 46, 97 P.2d 171. The fact that, if such a judgment was entered, it would be self-executing, does not authorize this court, in a prohibition proceeding, to review the case on its merits. *Page 66
In the case of State ex rel. Dooley Co. v. Superior Court,128 Wash. 253, 222 P. 492, 35 A.L.R. 252, with reference to an attempt to have reviewed the merits of a controversy in a prohibition proceeding, it was said:
"No review of the merits of the order complained of is sought, nor could it be had in this form of proceeding. The question is simply, did the court act without or in excess of its jurisdiction in making the order."
We do not understand that, in the present proceeding, there is any claim that the court did not have jurisdiction of the subject matter and of the person of the relator.
The writ will be denied.
BLAKE, C.J., MILLARD, and SIMPSON, JJ., concur.