4115,4116,| United States ex rel. Miller v. Clausen

• Citation: 291 F. 231
• Decision Date: 13 July 1923
• Docket Number: 4115,4116
• Parties: UNITED STATES ex rel. MILLER, Alien Property Custodian, v. CLAUSEN, State Auditor of Washington. SAME v. BABCOCK, State Treasurer of Washington.
• Court: U.S. District Court — Western District of Washington

291 F. 231

UNITED STATES ex rel. MILLER, Alien Property Custodian, v. CLAUSEN, State Auditor of Washington.

SAME v. BABCOCK, State Treasurer of Washington.

Nos. 4115, 4116,

United States District Court, W.D. Washington, Southern Division.

July 13, 1923

H. G. &amp Dix H. Rowland, of Tacoma, Wash., for relator.

Relator cites and relies upon the following cases: Commercial Trust Co., of New Jersey, v. Thomas W. Miller, Alien Property Custodian, 43 Sup.Ct. 486, 67 L.Ed. . . .; Charles Ahrenfeldt v. Thomas W. Miller, Alien Property Custodian, 43 Sup.Ct. 490, 67 L.Ed. . . .; Kahn v Anderson, 255 U.S. 1, 41 Sup.Ct. 224, 65 L.Ed. 469; Vincenti v. U.S., 272 F. 114; Id., 256 U.S. 700, 41 Sup.Ct. 538, 65 L.Ed. 1178; Kohn v. Kohn (D.C.) 264 F. 253; Miller v. U.S., 78 U.S. (11 Wall.) 268, 20 L.Ed. 135; Miller v. Camp (D.C.) 280 F. 520; In re Miller (C.C.A.) 281 F. 773; Garvan v. Marconi Wireless Tel. Co. (D.C.) 275 F. 486; Garvan v $20,000 Bonds (C.C.A.) 265 F. 477; Wenatchee Produce Co. v. Great Northern Railway (D.C.) 271 F. 784; Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 Sup.Ct. 214, 65 L.Ed. 403; Stoehr v. Wallace, 255 U.S. 239, 41 Sup.Ct. 293, 65 L.Ed. 604; Simon v. Am Exchange Bank, 43 Sup.Ct. 165, 67 L.Ed. . . .; Poindexter v. Greenhow, 114 U.S. 270, 5 Sup.Ct. 903, 29 L.Ed. 191; Board of Liquidation et al. v. McComb, 92 U.S. 531, 35 L.Ed. 623; State v. Toole, 26 Mont. 22, 66 P. 496, 55 L.R.A. 644, 91 Am.St.Rep. 386; Chaffin v. Taylor, 116 U.S. 571, 6 Sup.Ct. 518, 29 L.Ed. 728; State ex rel. Gillette v. Clausen, 44 Wash. 437, 87 P. 498; Abernathy v. Medical Lake, 9 Wash. 112, 37 P. 306; Union Sav. B. & T. Co. v. Gelbach, 8 Wash. 497, 36 P. 467, 24 L.R.A. 359; Cloud v. Sumas, 9 Wash. 399, 37 P. 305; LaFrance Fire Engine Co. v. Davis, 9 Wash. 600, 38 P. 154; Mason v. Purdy, 11 Wash. 591, 40 P. 130; Smith v. Ormsby, 20 Wash. 396, 55 P. 570, 72 Am.St.Rep. 110; State ex rel. Porter v. Headlee, 18 Wash. 220, 51 P. 369; State ex rel. Dahlquist v. Van Wyck, 20 Wash. 391, 54 P. 768; American Bridge Co. v. Wheeler, 35 Wash. 40, 76 P. 534; State ex rel. Maddaugh v. Ritter, 74 Wash. 649, 134 P. 492; Beach v. Olson et al., 91 Wash. 56, 157 P. 34; Savage v. Sternberg, 19 Wash. 679, 54 P. 611, 67 Am.St.Rep. 751; Brownell v. Town of Greenwich, 114 N.Y. 518, 22 N.E. 24-27, 4 L.R.A. 685; State v. Pierce, 52 Kan. 521, 35 P. 19-22; Corning v. Meade County Commissioners, 102 F. 57, 42 C.C.A. 154; State v. Akers, 92 Kan. 169, 140 P. 637, Ann. Cas. 1916B, 543; Jerome v. Rio Grande County Commissioners (C.C.) 18 F. 873; Bank of Calif. v. Shaber, 55 Cal. 322; State v. Gandy, 12 Neb. 232, 11 N.W. 296; Bush v. Geisy, 16 Or. 355, 19 P. 123; Day v. Callow, 39 Cal. 593; Lankford v. Platte Iron Works, 235 U.S. 461, 35 Sup.Ct. 173, 59 L.Ed. 316; Rolston v. Missouri Fund Commissioners, 120 U.S. 390, 7 Sup.Ct. 599, 30 L.Ed. 721; 18 Ruling Case Law, Sec. 148; Ray v. Wilson, 29 Fla. 342, 10 So. 613, 14 L.R.A. 775; Masses Publishing Co. v. Patten, 246 F. 24, 158 C.C.A. 250, L.R.A. 1918C, 79, Ann. Cas. 1918B, 999; U.S. v. Casey (D.C.) 247 F. 362; Story v. Perkins (D.C.) 243 F. 997; McCormick v. Humphrey, 27 Ind. 144; Merchants', etc., Bank v. Union Bank, 25 La.Ann. 387; U.S. v. Casey (D.C.) 247 F. 362; Tarble's Case, 13 Wall. (80 U.S.) 397, 20 L.Ed. 597; Miller, Executor, v. U.S., 78 U.S. (11 Wall.) 268-331, 20 L.Ed. 135; Jeffersonian Publishing Co. v. West (D.C.) 245 F. 585; U.S. v. Pierce (D.C.) 245 F. 878; U.S. v. Sugar (D.C.) 243 F. 423; Story v. Perkins (D.C.) 243 F. 997; U.S. v. Sugarman (D.C.) 245 F. 604; U.S. v. Stephens (D.C.) 245 F. 956; Angelus v. Sullivan, 246 F. 54, 158 C.C.A. 280; State v. Hohm, 139 Minn. 267, 166 N.W. 181, L.R.A. 1918C, 304; Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257; Railroad Co. v. Miss., 102 U.S. 135, 26 L.Ed. 96; Ames v. Kansas, 111 U.S. 449, 4 Sup.Ct. 437, 28 L.Ed. 482; Virginia Coupon Cases, 114 U.S. 270, 5 Sup.Ct. 903, 962, 29 L.Ed. 185; Smith v. Kansas City Title & Trust Co., 255 U.S. 199, 41 Sup.Ct. 243, 65 L.Ed. 585; Texas v. Lewis (C.C.) 14 F. 65; U.S. v. Louisiana, 123 U.S. 33, 8 Sup.Ct. 17, 31 L.Ed. 69; Id., 127 U.S. 182, 8 Sup.Ct. 1047, 32 L.Ed. 66; Jones v. Reed, 3 Wash. 60, 27 P. 1067; Johnson v. Lankford, 245 U.S. 544, 38 Sup.Ct. 203, 62 L.Ed. 460; Hopkins v. Clemson Agricultural College, 221 U.S. 635, 31 Sup.Ct. 654, 55 L.Ed. 890, 35 L.R.A. (N.S.) 243; Davenport v. U.S., 9 Wall. 409, 19 L.Ed. 704; Holt County v. National Life Ins. Co., 80 F. 686, 25 C.C.A. 475; Graham v. Folsom, 200 U.S. 248, 26 Sup.Ct. 245, 50 L.Ed. 464; Gunter v. A. Coast Line R. Co., 200 U.S. 273, 274, 26 Sup.Ct. 252, 50 L.Ed. 478; Morrill v. Am. Reserve Bond Co. (C.C.) 151 F. 305; Nashville v. Cooper, 6 Wall. (73 U.S.) 247, 18 L.Ed. 851.

John H. Dunbar, Atty. Gen., M. H. Wight, Asst. Atty. Gen., and Guio & Halverstadt, of Seattle, Wash., for respondents.

Respondents cite and rely upon Board of Liquidation v. McComb, 92 U.S. 531 at 541, 23 L.Ed. 623; Antoni v. Greenhow, 107 U.S. 769 at 783, 2 Sup.Ct. 91, 27 L.Ed. 468; In re Ayers, 123 U.S. 443, 8 Sup.Ct. 164, 31 L.Ed. 216; Pennoyer v. McConnaughy, 140 U.S. 1, at 9, 10, 11 & 12, 11 Sup.Ct. 699, 35 L.Ed. 363; Fitts v. McGhee, 172 U.S. 516 at 524, 525, 528 & 529, 19 Sup.Ct. 269, 43 L.Ed. 535; Lankford v. Platte Iron Works, 235 U.S. 461, 35 Sup.Ct. 173, 59 L.Ed. 316; Louisiana v. Jumel, 107 U.S. 711 at 718, 720, 721 & 722, 2 Sup.Ct. 128, 27 L.Ed. 448; Smith v. Reeves, 178 U.S. 436 at 438, 20 Sup.Ct. 919, 44 L.Ed. 1140; Johnson v. Lankford, 245 U.S. 541 at 545, 38 Sup.Ct. 203, 62 L.Ed. 460; Clifford, Superintendent, etc., v. Miller (C.C.A.) 288 F. 537; Miller, Alien Property Custodian, v. Rouse (D.C.) 276 F. 715 at 716.

CUSHMAN District Judge.

In these two cases, the Alien Property Custodian sues. In the one case, the court is asked to direct the treasurer of the state of Washington to pay the relator the amount due on certain warrants in his possession, drawn upon the accident fund, which fund is held by the state treasurer under the Workmen's Compensation Act of the state. The warrants and claims represented are alleged to be due former alien enemies or the allies of alien enemies of the United States. In the other case, the court is asked to direct the state auditor to audit a certain voucher upon such fund covering like claims, issued relator by the Department of Labor and Industries of the state of Washington and to issue relator a warrant upon the state treasurer for payment thereof. Respondents demur generally and upon the ground that the court has no jurisdiction.

While these cases grow out of matters involved in Clifford, Superintendent, etc., v. Miller, Custodian (C.C.A.) 288 F. 537, they are not ancillary to that cause. Section 24 of the Workmen's Compensation Act (section 7703 Remington's Comp. Stats. 1922) in part provides:

'The director of labor and industries shall, in accordance with the provisions of this act: * * *

'(2) Ascertain and establish the amounts to be paid into and out of the accident fund.

'(3) Regulate the proof of accident and extent thereof, the proof of death and the proof of relationship and the extent of dependency. * * *

'(5) Issue proper receipts for moneys received, and certificates for benefits accrued and accruing.'

Section 26 of the act (section 7705, Rem. Comp. Stats.) provides:

'Disbursement out of the funds shall be made only upon warrants drawn by the state auditor upon vouchers therefor transmitted to him by the department and audited by him. The state treasurer shall pay every warrant out of the fund upon which it is drawn. * * * '

The statute defining generally the duties of the state auditor provides, among others:

'It shall be the duty of the auditor,

'1. To audit, adjust, and settle all claims against the state, payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons. * * *

'16. In his discretion to require any person presenting an account for settlement to be sworn before him, and to answer, orally or in writing, as to any facts relating to it. * * * '

Section 9007, Rem. & Bal. Code.

By section 9013, Rem. & Bal. Code, it is provided:

'All persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the auditor, to be audited, settled and allowed, within two years after such claim shall have accrued and not afterwards.'

While section 9019, Rem. & Bal. Code, provides:

'The auditor whenever he may think it necessary in the settlement of any account or the drawing of any warrant, may examine the party, witnesses, and others on oath or affirmation touching any matter material to be known in the settlement of the account or the drawing of the warrant, and for that purpose he may issue summons and compel witnesses to attend before him and give testimony in the same manner and by the same means allowed in courts of record, and he shall reduce such evidence to writing, and file the same in his office.'

On the part of the relator it is contended that under section 7705 Remington's Compiled Stats., supra, the duties of the auditor concerning the issuing of a warrant are purely ministerial; that all discretion in the matter is exhausted when the director has, under section 7703, Remington's Comp. Stats., ascertained and established the amounts to be paid and issued a certificate for benefits accrued. The court is constrained to give effect to each word of the statute, unless to do so would clearly tend to defeat or impair the legislative intent. The court cannot say, in view of the language of section 7705, but that it was intended the auditor should exercise a supervisory power and discretion concerning the acts of the director, or it may have been intended that he in his discretion...