Doolittle v. Eckert

• Decision Date: 07 July 1933
• Docket Number: 5965
• Citation: 24 P.2d 36,53 Idaho 384
• Parties: VERDA DOOLITTLE, Respondent, v. AMOS H. ECKERT, State Game Warden, and HARRY C. PARSONS, State Auditor, Appellants
• Court: Idaho Supreme Court

24 P.2d 36

53 Idaho 384

VERDA DOOLITTLE, Respondent, v. AMOS H. ECKERT, State Game Warden, and HARRY C. PARSONS, State Auditor, Appellants

No. 5965

Supreme Court of Idaho

July 7, 1933

OFFICERS - SALARIES - STATUTORY SALARY - ESTOPPEL-MANDAMUS-OFFICERS-SUCCESSOR IN OFFICE-RIGHTS AND LIABILITIES-COSTS.

1. Supreme court took judicial notice that defendant in mandamus proceeding, who was state auditor when proceeding was commenced, no longer held such office (I. C. A., sec. 16-101 subd. 5).

2. Chief clerk in fish and game department had right to demand and receive salary in amount fixed by statute, and game warden had no discretion in matter (I. C. A., sec. 35-116).

3. State auditor was not required to draw warrant for payment of salary of employee of fish and game department, except as approved and certified by game warden (I. C. A., secs 35-116, 65-2011).

4. Successor in office takes office charged with knowledge of official actions of predecessor.

5. Statute under which state auditor was, on appeal, substituted as defendant in mandamus proceeding on retirement of predecessor held not unconstitutional as denying auditor equal protection of laws by holding him responsible for default of predecessor (I. C. A., sec. 5-319; Const. U.S Amend. 14, sec. 1).

6. In mandamus proceeding against state auditor and game warden where auditor ceased to hold office pending appeal, substitution of successor in office held not precluded by alleged fact that successor had additional defenses and that he was not served with process (I. C. A., sec. 5-319).

7. No state official has power to fix or determine amount of salary of chief clerk in fish and game department, fixed by statute (I. C. A., sec. 35-116).

8. That former chief clerk in fish and game department, paid less than statutory salary by former game warden, allegedly had cause of action at law against such warden and on his bond held not plain, speedy and adequate remedy at law which would prevent mandamus for balance against successor of warden and auditor (I. C. A., secs. 13-302, 35-116).

9. Where former game warden caused less than statutory salary to be paid to former chief clerk, mandamus held available to command game warden's successor to approve and certify claim to auditor for balance and command auditor to issue warrant therefor (I. C. A., secs. 13-302; 35-116, 65-2011).

10. That chief clerk in fish and game department signed pay-roll in nature of receipt, and accepted and cashed warrants for less than statutory salary, held not to estop her from thereafter claiming balance (I. C. A., secs. 35-116, 65-2011).

11. Where chief clerk in fish and game department was paid less than statutory salary, clerk's cause of action to compel game warden to approve and certify claim for balance and to compel auditor to issue warrant for balance held to survive against their successors, and on auditor's retirement from office pending appeal successor was properly substituted (I. C. A., secs. 5-319, 13-302, 35-116, 65-2011).

12. In mandamus proceeding to compel state auditor to issue warrant, where successor was substituted on appeal for defendant, who retired from office pending appeal, no costs held allowable against successor (I. C. A., sec. 5-319).

13. In mandamus proceeding to command game warden to approve and certify former chief clerk's claim which game warden's predecessor should have approved and certified, costs held not allowable against defendant (I. C. A., secs. 13-302, 35-116, 65-2011).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Appeal from a judgment awarding a peremptory writ of mandate. Affirmed.

Judgment affirmed, without costs.

Fred J. Babcock, former Attorney General, Sidman I. Barber, former Assistant Attorney General, Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Appellants.

By her acceptance of such position with knowledge that her appointment thereto was effectually conditioned upon a salary of but $ 150 per month and the presentation of a claim for such amount each month and acceptance, as in payment thereof, of a warrant in like sum, it may be considered that plaintiff waived claim for any greater amount and is estopped to make demand therefor. (De Boest v. Gambell, 35 Ore. 368, 58 P. 72; Chandler v. City of Elgin, 129 Ore. 558, 278 P. 581; O'Hara v. Town of Park River, 1 N.D. 279, 47 N.W. 380; Boyle v. City of Ogden City, 24 Utah 443, 68 P. 153.)

Harry S. Kessler, for Respondent.

Where the fees or emoluments of office are fixed by the legislature, the Governor has the right to make the appointment but cannot fix terms other than prescribed by law, and any agreement by the appointee to take less or more than the fees allowed by law is illegal and void. ( Settle v. Sterling, 1 Idaho 259.)

The acceptance and indorsement of the monthly salary warrant for less than the amount prescribed by law did not preclude the plaintiff from collecting the balance. (46 C. J. 1027, sec. 275; 22 R. C. L. 537, sec. 235; Lukens v. Nye, 156 Cal. 498, 105 P. 593, 20 Ann. Cas. 158, 36 L. R. A., N. S., 244, and note; Wolf v. Humboldt County, 36 Nev. 26, 131 P. 964, 45 L. R. A., N. S., 762; Rhodes v. City of Tacoma, 97 Wash. 341, 166 P. 647.)

WERNETTE, J. Givens and Holden, JJ., and Sutphen, D. J., concur. MORGAN, J., Dissenting.

OPINION

WERNETTE, J.

Respondent commenced this proceeding for the issuance of an alternative writ of mandate directed to the fish and game warden, the board of examiners and state auditor to require the warden to certify her claim against the state in the sum of $ 655.83, the board of examiners to pass upon and certify the same to the auditor and the auditor to draw his warrant against the fish and game fund in respondent's favor in that amount. An alternative writ of mandate was issued, motions to quash were made and the writ, so far as it concerned the board of examiners, was quashed, but the motions of the warden and auditor were denied. These officials answered and the trial resulted in a judgment that the alternative writ be made peremptory. A peremptory writ was issued commanding the warden to approve and certify the claim to the auditor and commanding the auditor to issue to respondent a warrant for $ 655.83. From the judgment awarding the peremptory writ of mandate the warden and auditor have appealed.

April 16, 1931, respondent began work, as a stenographer, in the fish and game department and continued in that capacity until July 1st of that year. Thereafter and until April 15, 1932, she filled the position of chief clerk in the fish and game department. At the time she was so employed M. P. Bailey, who appointed her chief clerk, was fish and game warden. After her appointment to that position she received as salary the sum of $ 150 per month until March 1, 1932, and thereafter at the rate of $ 135 per month. The salary of chief clerk, at the time that position was held by respondent, was fixed by statute at $ 2,600 a year, and her purpose in commencing this proceeding was to recover the difference between what she had been paid and the amount of that salary for the time she was employed as chief clerk.

A pay-roll was filed each month with the state auditor showing the name of each employee of the department, the position held by such employee, the portion of the month employed, the rate of pay and the amount due, and was signed by the employee, as a receipt, as required by law. These pay-rolls showed respondent was chief clerk; that the rate of her pay was $ 1,800 a year, and that the amount due her for the month was $ 150, except that the pay-rolls for March and April, 1932, showed her pay to be at the rate of $ 135 a month, as above stated. Each pay-roll bore the following certificate, signed by M. P. Bailey as head of the department:

"I certify that the services charged for above were necessary in the public service; that they were actually rendered as charged; that the rate of pay of each person carried hereon has been fixed by proper authority, and that the account is correct and just."

These pay-rolls were signed by respondent and paid by the state by warrants issued by the auditor against the fish and game fund. Respondent's warrants were accepted by her and cashed. It is conceded that prior to the commencement of these proceedings respondent made and filed her claim, in due form, with the appellant game warden, for the balance of the amount claimed by her as salary, which claim he refused to approve.

Respondent testified she was told by Mr. Bailey that she was to receive $ 150 per month for her services as chief clerk and she replied she thought she ought to have the same salary as the former chief clerk had received for the same work; that she frequently contended her salary should be the same as that of her predecessor, but it does not appear she ever demanded that Mr. Bailey certify to the auditor that she was entitled to any other or further sum than shown on the pay-roll. After Warden Bailey resigned and appellant, Eckert, became his successor, and after respondent's employment as chief clerk had terminated, this proceeding was commenced.

A question presents itself as to whether the writ of mandate is available for the purpose for which it is here sought to be employed.

Idaho Code Annotated, sec. 13-302, provides, with respect to the writ of mandate:

"It may be issued . . . . to compel the performance of an act which the law especially enjoins as a duty resulting from an office . . . ."

In Davies v. Board of County Commrs., 26 Idaho 450, 143 P. 945, this court said:

"A writ of mandate is for the purpose of compelling the performance of an act which the law especially enjoins...