Dillon v. Whatcom County

• Decision Date: 25 July 1895
• Citation: 12 Wash. 391,41 P. 174
• Parties: DILLON v. WHATCOM COUNTY.
• Court: Washington Supreme Court

41 P. 174

12 Wash. 391

DILLON v. WHATCOM COUNTY.

Supreme Court of Washington

July 25, 1895

Appeal from superior court, Whatcom county; Jesse A. Frye, Judge.

Action by Asahel Dillon against Whatcom county and others. From a judgment for plaintiff, the county appeals. Reversed.

G. V Alexander and J. R. Crites, for appellant.

Bruce Brown & Cleveland and Kerr & McCord, for respondent.

DUNBAR J.

Respondent brought this action against appellant, the county of Whatcom to recover the sum of $300, alleged to have been paid out by him for clerk hire and salary of deputy in his office as county auditor for the month of April, 1895. He alleges in his complaint that he was compelled to retain in his office three clerks, Dillon, Bateman, and Custer, and the deputy, Brand, in order to dispatch the duties of his said office during said month; that the county commissioners of defendant county had attempted to discharge all the clerks in his office after April 1, 1895, and had reduced the salary of his deputy to $5 per month; that he made an agreement with his said deputy and clerks to the effect that if the county refused to audit and allow their salaries he would pay them himself; that the county did refuse to pay said claims when presented to it, and that he thereupon, in compliance with his agreement, paid his deputy and clerks, and took an assignment of their said claims; that J. J. Bell, sheriff of Whatcom county, had been compelled, in order to discharge the duties of his office, to retain in his employ as his deputy one W. I. Brisbin, and had made an agreement with him similar to the one made by the auditor with his employés, and that said claim of Brisbin and the sheriff had been assigned to the plaintiff. The said claims were duly presented to the county commissioners, who refused to audit and allow the same, whereupon an action for their recovery was commenced. Defendants interposed a demurrer to plaintiff's complaint, which was overruled. Appellant thereupon answered denying all the allegations of plaintiff's complaint, except paragraph 1, which was the allegation of the official standing of the plaintiff and of the defendants, and set up affirmatively the order made by the county commissioners wherein it was determined by the commissioners that the clerks hired by respondent were not needed in the auditor's office, nor the one hired by the sheriff in his said office, and they refused their consent to the employment of any clerks in said offices after the 1st day of April, 1895; said order being also based upon the additional ground that the defendant county had reached its limit of indebtedness under the constitution, and had no power to contract further indebtedness, particularly for the hire of said clerks. Other affirmative defenses were pleaded, but, as we view the case, their discussion will not be involved in this opinion. A trial was had by a jury, and judgment rendered, in favor of the plaintiff, for the amount demanded.

The first proposition discussed by the appellant would go to the merit of the demurrer to the complaint, and it is insisted that the rule is well settled that where a public officer claims a compensation for official services he must show either a statute authorizing such compensation, or a contract with some one who has authority to bind the county, from which compensation is claimed; that, if he cannot show a contract with some one authorized to bind the county, then he must show-First, a statute authorizing him to receive such compensation for such services, and fixing the amount thereof; and, second, a statute authorizing the county commissioners to pay for such services out of the county treasury. This contention seems to be directly sustained in State v. Roach (Ind. Sup.) 24 N.E. 106. This was a suit instituted to compel the auditor of a county to draw his warrant on the county treasurer for certain moneys alleged in the complaint to be due the appellant as surveyor of said county. The complaint set up the necessity for the work done by his deputies and the necessity for their employment; and while the court held in that case that, under the statutes, he was compelled to do the work himself for the compensation provided, it announced the rule formulated above as having been the rule uniformly adopted by that court, and closed with the statement that "it is believed to be the universal rule that, where the law fixes no compensation for deputies, they must be paid by the officer who employs them, and not out of the public treasury." In Severin v. Board (Ind. Sup.) 4 N. E. 680, the same rule is substantially announced, and the court, in closing the opinion, says: "The auditor had no right to proceed, granting the soundness of his own theory, without consultation with the commissioners. It was not for him to decide for himself that the work ought to have been done by his predecessor, and that the county must pay him for doing it. The county auditor's power is hardly so autocratic as to permit him to make and enforce such a decision." In the case of Board v. Harman, 101 Ind. 551, the court again announced the rule that an officer could not successfully claim compensation for services unless there was a statute providing that he should receive remuneration. To the same effect is Bynum v. Board, 100 Ind. 90. Mechem on Public Officers, in section 855, declares the doctrine to be that the relation between an officer and the public is not the creature of contract, nor is the office itself a contract, so that the right to compensation is not the creature of contract; that it exists, if it exists at all, as the creation of law, and, when it so exists, it belongs to the officer, "not by force of any contract, but because the law attaches it to the office"; and that the most that can be said is that there is a contract to pay him such compensation as from time to time may be by law attached to the office. And as a deduction from this it is asserted by the author that "unless, therefore, compensation is by law attached to the office, none can be recovered"; that "a person who accepts an office to which no compensation is attached is presumed to undertake to serve gratuitously," and that "he cannot recover anything upon the ground of an implied contract to pay what the service is worth,"-making distinction between the compensation of an officer and of a person other than an officer who undertakes to render services for a municipal corporation as its private agent, in which case he can recover the reasonable value of the services. But, whether or not the demurrer should have been sustained, we are satisfied that upon the complaint and answer no judgment should have been granted to the plaintiff, for it appears from the answer that the county commissioners had exercised their discretion, and had decided that the services of these employés were not necessary.

Before proceeding further with this argument, it would be well perhaps, to revert to the law governing this discretion, and see wherein it is lodged. Section 2973 of the General Statutes, after providing for the election of county officers and establishing their salaries, provides, further, that, "in all cases where the duties of any office are greater than can be performed by the person elected to fill the same, said officer may employ, with the consent of the county commissioners, the necessary help, who shall receive a just and reasonable pay for services"; further providing that "the officer appointing such deputies or clerks shall be responsible for the acts of such appointees upon his official bond." It is contended by the respondent that this section vests the discretion in the officer to appoint, and that in fact it becomes his duty to appoint, the permissive language of the act under the circumstances to be construed as mandatory. Were there no other section of the law governing appointments of deputies and hiring of other help, there might be some plausibility in this contention; but section 3003 seems to vest the discretion in, and throw the burden of determining the necessity of such appointments entirely upon, the board of county commissioners, for it provides that "in case the salaries herein provided for are, in the judgment of the board of county commissioners, inadequate for the services required of the officers named herein, then the said board of county commissioners may allow such officer a deputy, or such number of deputies as, in their judgment, may be required to do the business of such office in connection with the principal, for such time as may be necessary, and at such salary as they may designate." It is contended by the respondent that these two sections should be construed in pari materia; but, even construing them thus, it would seem that the statute went no further than to allow the officer to name the employé, when it had been determined by the board of commissioners that such employment was necessary. Inasmuch as the officer is responsible on his bond for the delinquencies of the appointee, this is no more than a fair provision of the law. But we think that it cannot go beyond this. The whole question of employment outside of the person of the employé seems to be submitted to the judgment of the board of county commissioners by language which is inconsistent with any other thought than that of direction by the commissioners. In the first place, it provides that if the salary, "in the judgment of the board," is inadequate; and as indicating the vesting of discretion no stronger words could be used. Again, "the said board of county commissioners may allow such officer a deputy." The word "allow" naturally conveys the idea of permission upon the part of the county commissioners; not of consultation or agreement or a...