In Re the Impeachment of Bevins

*753 OPINION OF THE COURT BY PERRY, J. (Circuit Judge Banks dissenting.) This is a petition instituted by twenty-nine petitioners before the judge of the circuit court of the second circuit for the removal of the respondent from the office of county attorney of the County of Maui, on the ground of malfeasance. Upon a question reserved to this court it was held that the demurrer interposed should be overruled. Subsequently the demurrer was overruled and by stipulation of the parties the time was fixed for trial of the cause upon its merits. Before, however, the filing of any answer by the respondent seven of the petitioners filed in writing their respective withdrawals as petitioners and discontinuances of the petition, each one of these seven giving in the written document his reasons for withdrawing and discontinuing. In some, and perhaps all, one reason given was that the petition was signed without full knowledge or understanding of its contents or purposes. In some the charge was made that there were misrepresentation and fraud in the securing of the signatures. After taking evidence on the subject the trial judge found that there was no misrepresentation, mistake or other fraud in the obtaining of the signatures and ruled that the seven petitioners were not at liberty to withdraw or to discontinue and gave judgment for the petitioners on the pleadings, ordering the removal of the respondent from his office. From that decree the case comes to this court on appeal. One of the questions presented is whether the seven petitioners had the right to withdraw or discontinue and whether, if they did have that right, the remaining twenty-two petitioners can maintain the suit. The statute reads: “Any elected county officer * * i:‘ may be removed for malfeasance, misfeasance, nonfeasance or maladministration in office. Any circuit court within the county shall he a court of impeachment for the trial of any such *754 elected or appointed officer who may be so charged, and such circuit court shall sit without a jury and shall proceed according to the form required for the trial of all civil cases at common law as modified by statute. A verified petition, setting forth in detail the charges preferred against such officer and praying for his removal, may be filed in such circuit court by not less than twenty-five persons who are citizens and voters of the county, and thereupon the court shall fix the time Avithin which the officer charged shall answer the charges, hut in no case less than twenty days from date of service, and, a certified copy of such charges, together Avith a proper summons, shall he served upon the officer so charged as in any civil case. If such officer shall fail to appear and answer on or before the return day, he may be defaulted, and the court may, after default, hear the petitioners upon their proof and, if the charges are sustained, may remove the officer and his office shall thereupon become vacant; but if the officer shall, on or before the return day, appear and file a written reply to the charges, either in the form of a demurrer or traverse, the issues formed by the reply shall, after notice, he set down and heard by the court and the cause shall proceed to final termination as in other civil law causes. If it shall be finally adjudged that the charges are unfounded in law or in fact, the respondent may recoA7er his costs; but if the charges are adjudged to be founded upon both law and fact, the court shall adjudge the office to he vacant and award the costs against the respondent.” R. L. 1925, Sec. 1639. Bright v. Fern, 20 Haw. 325, was a petition brought by thirty voters under section 57, Act 118, S. L. 1907, relating to election contests. That statute provided that “any candidate directly interested, or any thirty duly qualified voters of any election district may file, a petition in the supreme court of the Territory setting forth any *755 cause or causes why the decision of any board of inspectors should be reversed, corrected or changed.” The petition Avas brought by thirty-one petitioners but before an answer was filed two of these withdrew and discontinued leaving less than the statutory number of thirty to maintain the proceeding. The right of the two petitioners to withdraw and the effect of their withdrawal upon the continued existence of the suit were fully considered by the court. It was held that the two had the right to discontinue and that the remaining twenty-nine could not maintain the proceeding. The court said: “This is an adversary proceeding. While the public may to some extent have an interest in it, it has not control of it so as to prevent any or all of the petitioners from withdrawing from the contest. The public is not a party. The ordinary rules as to the control of petitioners over their oaati case apply in this respect. Before issue joined any one or more of the parties plaintiff may withdraw subject to such order as may be made concerning costs and, perhaps, to certain other limitations which do not apply in the case at bar. If leave to discontinue is ordinarily requisite at this stage no reason occurs to us for withholding it. The presumption is that the election was validly conducted and the court should not place itself in the position of encouraging litigation by compelling the continuance of the contest against the will of the petitioners. The withdrawal of two of the petitioners requires the dismissal of the petition. While the language of Section 57, Act 118, L. 1907, is that any thirty voters may ‘file a petition,’ the statute contemplates, we think, that thirty voters are requisite not only to the institution but also to the continuance of the proceeding. The intent of the legislature evidently Avas that no contest should be permitted unless (aside from action by the defeated candidate himself) thirty voters could be found who agreed *756 that a contest would he justified by the facts and necessary or desirable. If any of the thirty, at least before answer, lose faith in their petition or for any reason alter their views as to the desirability of further litigation, the contest becomes that of the remainder only. If one of the thirty may withdraw and still leave vitality in the proceeding, twenty-nine may withdraw with the same result. We are unable to conclude that the legislature contemplated the continuance by one voter, or by ten or by any number less than thirty, of a contest, even though properly instituted by the required number.” That ruling and the reasoning in support of it is applicable in the case at bar. It is true that in the former case the contest was with reference to an election while in the case at bar it is with reference to an attempted removal of an officer from his office but the statutory language under consideration is substantially the same and the principles involved are the same. The decision was rendered in 1910, fifteen years ago, and the legislature has not seen fit to amend the statute. That of itself is a sufficient reason for not now adopting another construction of the statute. It may be added, however, that we think that the law was there correctly stated. In the statute now under consideration (Sec. 1639) not only is there no language justifying the view that the legislature intended that less than twenty-five petitioners could maintain the action after it was once filed but the statement is made that even after default the court may hear “the petitioners” upon their proof and that if it be finally decreed that the charges are unfounded “the respondent may recover his costs.” By the words “the petitioners” the legislature would seem to have meant the twenty-five persons who are referred to earlier in the section as authorized to file the petition and so also the recovery of costs would be from the petitioners and not from anyone else. Cases decided in other juris *757 dictions under dissimilar statutes are not helpful. For example, under statutes authorizing the establishment or alteration of highways or the laying of sewers upon petition of a. certain number of citizens or voters, boards of supervisors or other officers of the government are charged with the duty to conduct the proceedings after the necessary petition has once been filed and under those statutes the petitioners after the board or other officer has acquired jurisdiction and has acted have no further duty or power in the matter; but under our statute relating to the removal of officers, as also under the statute of 1907 relating to election contests, the proceeding is of an adversary nature. In each there are plaintiffs and defendants. In each there is a contest between the plaintiffs and the defendants, and the court merely sits as an impartial tribunal to decide the law and the facts. If there are no plaintiffs or an insufficient number of plaintiffs there is no contest and the court has no function to perform. The court cannot place itself in the position of plaintiffs or complainants and conduct the attack upon the respondent’s right to hold office. If it had been thought desirable to authorize the attorney general alone or any other officer or person to institute and conduct such a proceeding as this the legislature could easily have so stated. The same would be true if it had been desired to authorize a larger number to institute the suit and one or more of that number less than all to conduct it. In the statute under consideration there is no indication of any such intent. Our statutes do not specify any limit of time within which such a petition as this, for the removal of a county attorney from office, may he filed. If there are any twenty-five citizens and voters of the County of Maui, whether inclusive or exclusive of the twenty-two present petitioners who have not discontinued, who believe that *758 cause of removal exists and that it is desirable that respondent should be removed, they are at liberty now to institute a new proceeding for that purpose. The seven petitioners who have discontinued did not, by their discontinuance, prejudice the- rights of the remainder of the citizens and voters of that county. There is no room under our statute for the theory that persons who have once signed as petitioners are agents or trustees for the remainder of the community and are recreant to their trust if they discontinue. In Beebe v. Wilkins, 29 Atl. (N. H.) 693, which was a petition for the abatement of a liquor nuisance, the court regarded the proceeding as in its nature criminal and said that “the state is the real plaintiff.” Our statute, on the contrary, clearly shows that any proceeding instituted under it is civil and not criminal, for it provides (a) that the court of impeachment “shall proceed according to the form required for the trial of all civil cases at common law as modified by statute,” (b) that service shall be made upon the officer charged “as in any civil case” and (c) that after issue the cause shall proceed to final termination “as in other civil law causes.” In the case at bar the Territory is not a party. The public is in no way authorized by the statute to be made a party and has no control over the proceedings. The petitioners alone have control over their proceeding, as in ordinary civil cases. Mollan v. Torrance, 9 Wheat. 537, was a cause instituted in a district court of the United States. That court’s jurisdiction depended upon the fact of diverse citizenship and it was therefore alleged in the declaration that the plaintiffs were citizens of one State and that the defendant was a citizen of another State; but the declaration was “silent respecting the citizenship or residence of Lowrie, the immediate indorser of Torrance, *759 through Avhom the plaintiffs trace their title to the money for which the suit” was instituted. The defendant filed a plea to the jurisdiction to the effect that the promises sued on were made to Lowrie and not to the plaintiffs and that Lowrie and the defendant were both at the time of the filing of the plea citizens of the same State. The supreme court’s statement, in holding the plea insufficient, that “it is quite clear that the jurisdiction of the court depends upon the state of things at the time of the action brought, and that, after vesting, it cannot be ousted by subsequent events” had reference to the facts of that case and is in no wise applicable in the construction of our statute relating to removals from office. TV. B. Lymer, Attorney General (also on the brief), for petitioners. M. F. Prosser (Frear, Prosser, Anderson & Marx and A. E. Steadman■ on the brief) for respondent. It is not material that the discontinuances were filed after the demurrer had been passed upon. Just what is the latest stage of the case at Avhich a discontinuance may be so filed it is unnecessary to consider. In this case, as in Bright v. Fern, the discontinuances Avere presented before answer on the merits Avas filed. While the right to discontinue is said to he subject to the approval of the court such approval is ordinarily granted almost as matter of course. No reason appears in this case why the discontinuances should not be permitted. It is immaterial whether the signatures of the seven petitioners were secured by fraud. If they are not willing to continue as petitioners, that is sufficient. The judgment appealed from is set aside and the cause is remanded to the trial court with directions to allow the withdrawals and discontinuances and for such further proceedings as may be proper, not inconsistent with this opinion.