Anderson v. Whatcom County

• Decision Date: 25 June 1896
• Citation: Anderson v. Whatcom County, 15 Wash. 47, 45 P. 665 (Wash. 1896)
• Parties: ANDERSON v. WHATCOM COUNTY.
• Court: Washington Supreme Court

45 P. 665

15 Wash. 47

ANDERSON v. WHATCOM COUNTY.

Supreme Court of Washington

June 25, 1896

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by R. J. Anderson against Whatcom county. There was a judgment for plaintiff, and defendant appeals. Affirmed.

G. V. Alexander, for appellant.

Newman & Howard, for respondent.

DUNBAR J.

This case involves the right of the justices of the peace in New Whatcom precinct to receive the salary provided by law for cities of the third class. The justice who is the respondent here filed with the auditor of the county of Whatcom his claim for his salary for the month of July, 1895, for the sum of $100, and said claim was audited by the auditor, and presented for allowance to the county commissioners of said county, by whom it was rejected for the alleged reason that the said justice was not entitled to any compensation in excess of the fees earned by him, which said fees were ascertained and tendered. The action was brought against the county by the respondent, for the salary claimed, and judgment was rendered in his favor, from which judgment an appeal is taken by the county of Whatcom to this court. All the essential facts relating to the election and qualification of the respondent are admitted, so that it will not be necessary to discuss anything but the law governing the case. Many assignments of error were made by the appellant, but there are four principal grounds upon which appellant rests its defense, viz.: (1) That the city of New Whatcom, constituting the precinct in which respondent is justice of the peace, is not an incorporated city or town of the third class, having more than 5,000 inhabitants, as shown by the last state or federal census and therefore respondent is not entitled, under the law, to receive any salary from the appellant county; not being a justice contemplated by section 1, p. 8, of the Laws of Washington of 1891. (2) That respondent is an officer receiving compensation from the appellant county, who is required to exact fees for the performance of the duties of his office, and therefore is not entitled to any compensation in excess of the fees collected by him as such officer. (3) That, at the time of the presentation of the claim by the respondent, the county had exceeded its limit of indebtedness under the constitution, and that no money was in the treasury, available for the payment of respondent's alleged salary. (4) That appellant has paid respondent in full on account of his services, by issuing him a warrant in the sum of $39.45, which was the amount of the fees collected by the justice in said month. Section 10 of article 4 of the constitution provides that, in incorporated cities or towns having more than 5,000 inhabitants, the justices of the peace shall receive such salary as may be provided by law, and shall receive no fees for their own use.

The justice's salary act of February 7, 1891, p. 8, provides that justices of the peace in incorporated cities and towns of the third class, having more than 5,000 inhabitants, as shown by the last state or federal census, shall receive an annual salary of $1,200. The contention of the appellant is that this act must be construed literally, and that either the state or the federal census is the sole criterion for a determination of the population in all cases while the respondent contends that the question of population of cities of the third class is a question of fact, to be ascertained like any other fact in the case. There has been no federal census taken since the organization of New Whatcom precinct. The act of February 7, 1891, § 1, provides that "The justices of the peace in incorporated cities and towns of the first class shall receive an annual salary of two thousand dollars; justices of the peace in incorporated cities and towns of the second class shall receive an annual salary of eighteen hundred dollars; and justices of the peace in incorporated cities and towns of the third class having more than five thousand inhabitants, as shown by the last state or federal census, shall receive an annual salary of twelve hundred dollars." The last federal census was taken in May, 1890, before the organization of the city of New Whatcom, and there has been no state census taken of the inhabitants of said city; and the legislature has failed to make provisions for taking such a census as provided for in article 2, § 3, of the constitution. So that the essential question in this case is whether the constitutional provision in relation to salaries of justices of the peace in cities containing a population of 5,000 inhabitants or more is self-executing, or whether it requires legislation to give effect to the constitutional provision. It is insisted by the appellant that this court decided this question in favor of its contention in the case of Ronde v. Seavey, 4 Wash. 91, 29 P. 768; but, while some language may have been used in the opinion in that case tending to sustain such a contention, we do not think that the questions decided there were necessarily involved in the decision of the question now under consideration. An examination of the briefs in that case shows that the questions were meagerly presented, and that the question of the self-executing power of the constitution was not presented to the court at all. So that we feel justified in entering upon the discussion of this case as a new question, and we are of the opinion that the provision of the constitution in relation to the salaries of justices of the peace in cities or towns having more than 5,000 inhabitants is self-executing. "A constitutional provision," says Mr. Cooley in his work on Constitutional Limitations (page 100), "may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executed when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law." It seems to us that, under this constitutional provision, it becomes a fixed fact that cities or towns having more than 5,000 inhabitants are entitled to salaried justices of the peace; that that fact, and the ascertainment of it, are directed to the court, and not to the legislature; that to the legislature was directed the fixing of the salary, and the legislature in this instance has fixed the salary, under the power given to it by the constitution. The learned author above quoted cited the provisions exempting homesteads from forced sale for the satisfaction of debts as an illustration of self-executing provisions, and says that: "Where, as in California, the constitution declares that 'the legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families,' the dependence of the provision on subsequent legislative action is manifest. But where, as in some other states, the constitution defines the extent, in acres or amount, that shall be deemed to constitute a homestead, and expressly exempts from any forced sale what is thus defined, a rule is prescribed which is capable of...