Bartholomew v. Town of Springdale

• Decision Date: 09 June 1916
• Citation: 91 Wash. 408,157 P. 1090
• Parties: BARTHOLOMEW v. TOWN OF SPRINGDALE.
• Court: Washington Supreme Court

157 P. 1090

91 Wash. 408

BARTHOLOMEW v. TOWN OF SPRINGDALE.

Supreme Court of Washington

June 9, 1916

Department 2. Appeal from Superior Court, Stevens County; W. H. Jackson Judge.

Action by C. E. Bartholomew against the Town of Springdale. From a judgment in his favor, plaintiff appealed. Reversed and remanded, with direction to enter judgment for plaintiff.

Jesseph & Bourland, of Colville, for appellant.

John B Slater and Carey & Johnson, all of Colville, for respondent.

PARKER J.

The plaintiff, C. E. Bartholomew, seeks recovery of the sum of $720 from the defendant, town of Springdale, which he claims as the salary attaching to the office of marshal of the town while he was the incumbent of that office for the period of one year. Trial before the superior court of Stevens county sitting with a jury resulted in verdict and judgment for the sum of $300, from which the plaintiff has appealed to this court.

Counsel for appellant contend he is entitled to have judgment rendered in his favor for the full amount of salary claimed by him, and that the trial court erred in refusing to so rule as a matter of law upon motion made by his counsel for a directed verdict immediately following the announcement of counsel for respondent that they rested their case.

We note that after the denial of this motion by the court some rebuttal evidence was introduced in appellant's behalf and also some surrebuttal evidence introduced in respondent's behalf; but none of this additional evidence, as we view it, had any bearing whatever upon the undisputed facts which we regard as determinative of the question of whether or not appellant is entitled to judgment as a matter of law, as in effect asked for in his motion for directed verdict. Therefore if the trial court committed error in refusing to direct a verdict in appellant's favor when requested so to do, such error was not cured by anything appearing in the rebuttal and surrebuttal evidence introduced thereafter.

The undisputed facts determinative of appellant's right to judgment as a matter of law may be summarized as follows: On February 3, 1912, the mayor of the town of Springdale appointed appellant marshal of the town. This appointment was evidenced by a communication addressed to appellant by the mayor stating, 'I hereby appoint you town marshal of the town of Springdale, Wash.' This appointment was unqualified by other language and is silent as to the time it became effective so far as the giving of bond and taking of the oath of office by appellant is concerned. At that time there was in force in the town an ordinance fixing the salary of the town marshal at $60 per month, and there was also at that time in force an ordinance fixing the amount of the official bond required to be furnished by the town marshal at $300. On the same day appellant executed and deposited with the town clerk his official bond in the sum of $300 conditioned as the ordinance and section 7722, Rem. & Bal. Code require. The bond was executed by two sureties with appellant, who, by affidavit in due form indorsed thereon stated they were each worth $600 over and above all liabilities, in separate property situated within the state not exempt from execution. There was also indorsed upon this bond appellant's oath of office in due form sworn to before a notary public. Some controversy arose as to whether or not this bond was formally approved by the town council as required by section 7722 of Rem. & Bal. Code. The evidence upon this question was rejected, however, by the trial court, evidently because the approval claimed by appellant to have been had was at a meeting of the council where there was not a quorum of qualified members of the council present. We will therefore proceed as though the town council never formally approved the bond by proper evidencing of such approval upon their minutes or by indorsement upon the bond. From that time until February 3, 1913, no other person was appointed to the office of marshal. During all this period of one year appellant claimed and held himself out to be marshal of the town and at least in some substantial measure performed the duties pertaining to that office. There is some conflict in the evidence as to the extent of such performance, but that no one else was legally authorized to perform or performed such duties is certain. We may add that appellant had possession of the personal property of the town used by the incumbent of the office, such as star, handcuffs, club, etc. It also inferentially appears that he had possession of the town jail. It is undisputed in any event that he put persons in the jail, assuming in doing so to act as marshal.

Section 7722, Rem. & Bal. Code, relating to the qualifications of officers of towns of the fourth class, to which class the town of Springdale belongs, so far as necessary to here notice the provisions thereof, reads:

'The clerk, treasurer, and marshal shall respectively, before entering upon the duties of their respective offices, execute a bond to such town in such penal sum as the council by ordinance may determine, conditioned for the faithful performance of his duties; * * * such bonds shall be approved by the council. * * * Every officer of such town, before entering upon the duties of his office, shall take and file with the clerk the constitutional oath of office.'

It is plain from a reading of this section that appellant, in receiving his appointment, depositing with the town clerk his bond and oath of office, and the entering upon his duties as marshal, became an officer de jure with all the powers and entitled to all the emoluments of the office, unless we are to hold otherwise because of the fact that his bond was not formally approved by the town council. That the failure on the part of the council to formally approve his bond did not prevent him from becoming an officer de jure, we think is determined by the decision of this court in State ex rel Chealander v. Carroll, 57 Wash. 202, 106 P. 748. The office there involved was civil service commissioner of the city of Seattle. Chealander, the appointee, did not then, nor thereafter, give and file the bond required by the city charter before entering upon the duties of such office. Touching the question of whether or not Chealander was a de jure or merely a de facto officer, Justice Fullerton, speaking for the...