Johnston v. Schlarb

• Decision Date: 21 February 1941
• Docket Number: 27989.
• Citation: 7 Wn.2d 528,110 P.2d 190
• Parties: JOHNSTON v. SCHLARB et al.
• Court: Washington Supreme Court

110 P.2d 190

7 Wn.2d 528

JOHNSTON v. SCHLARB et al.

No. 27989.

Supreme Court of Washington

February 21, 1941

Department 1.

Action for libel by Harry H. Johnston against John Schlarb and others. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Pierce County; William E. Campbell, judge.

Chas L. Westcott and Frank Hale, both of Tacoma, for appellant.

Thor C Tollefson, G. E. Peterson, Charles T. Peterson, and Thomas L Chambers, all of Tacoma, for respondents.

ROBINSON Chief Justice.

This is an action for libel brought against the county commissioners of Pierce county, its auditor, its treasurer, its prosecuting attorney, one of his assistants, and the sureties on their official bonds. On appeal, there is but one assignment of error, towit, 'The lower court erred in sustaining the general demurrers.'

The complaint to which the demurrers were sustained alleges that in September, 1939, I. C. Gaspard commenced an action in mandamus against Pierce county, its commissioners, its auditor and treasurer, on behalf of himself and of a great number of assignors, to collect certain sums of money with respect to services rendered as election officials during 1936, 1937, and 1938, over and above the sums they had already received for such services. Harry H. Johnston, the former prosecuting attorney for Pierce county, and John W. Fishburne, who had been a deputy in his office, were Gaspard's attorneys of record in the action. The defendant officers were represented by Thor C. Tollefson, the then prosecuting attorney, and G. E. Peterson, his assistant. They filed in that proceedings an answer setting up certain alleged affirmative defenses in which the following language, which is alleged to be libelous, was used:

'That some time prior to said election dates, the exact time of which being to the defendants unknown, the plaintiff I. C. Gaspard and Harry H. Johnston as prosecuting attorney of Pierce County, Washington and John W. Fishburne as chief civil deputy prosecuting attorney, entered into a conspiracy one with the other, to defraud and cheat the defendant Pierce County out of the several sums of money that it would be entitled to be paid as reimbursement for the costs of the several elections hereinBefore referred to, which conspiracy to cheat and defraud Pierce County was contingent upon the outcome of the general election for the year 1938, wherein the said Harry H. Johnston was seeking re-election as prosecuting attorney. That as a result of his defeat for re-election as prosecuting attorney, and in furtherance of said conspiracy to cheat and defraud Pierce County, the plaintiff, I. C. Gaspard solicited the assignment of the claims of the claimants referred to in plaintiff's affidavit, which solicitation was in writing, copies of which are attached hereto and made a part hereof by reference and marked defendants Exhibit 'F' and 'G'.

'That as a result of said conspiracy to cheat and defraud Pierce County, numerous persons who claimed to have served on said election board, made an assignment to the plaintiff for such sums of money they claimed to be owing, copies of which assignments are attached hereto and made a part hereof by reference, and marked defendants' Exhibits 'H' and 'I'. That a large number of said assignors never served on the election board at the time set forth in said claim.'

In order to determine the relationship of these allegations to the action, it is necessary to refer to some of the exhibits attached to the answer and by reference made a part thereof. They were Before the court because the whole of the answer and its exhibits were attached to the complaint in this action. One of these exhibits purports to be the minutes of the Pierce County election board of January 28, 1936. Of this board Johnston, the plaintiff in this action, was then chairman, and the minutes purport to be certified by him as such. They read, in part, as follows:

'All members of the Board Present:

'The only matter to come Before the board was the fee for service of Inspectors and Judges, to be appointed by this board, thru certification by the Central Committee of respective parties, to serve on Election Board in the different precincts at the elections to be held on February 25th and March 10th respectively and mileage allowance to be granted Inspectors who may or will submit mileage costs, for the return of election supplies and records.

'On motion and agreed to, by entire board it was decided the fee for service of Inspectors and Judges, who are to serve on election Board at elections on February 25th and March 10th, is to be $5.00 and it must be with this understanding that they accept appointment. The Secretary of the Board is hereby instructed to so notify each appointee and such notification must read in part as follows:

"Your fee for this service will be $5.00 payable in Pierce County Warrant and it must be with this understanding that you accept the appointment." (Italics ours.)

This system, it appears from other exhibits, was followed in 1937 and 1938. The notice sent to the election officers by the secretary of the election board in 1938, pursuant to a resolution which, an exhibit shows, Johnston approved in writing, read, in part, as follows: 'You have been appointed to serve as $05R of election in Precinct No. _____ November 8, 1938.

'Your fee for this service will be $5.00 and it must be with this understanding that you accept the appointment.'

During all three years, and, indeed, during all of the years subsequent to the passage of chapter 163, Laws of 1919, the following statute (Rem.Rev.Stat. § 5166) was in effect:

'The fees of officers of election shall be as follows:

'To the inspectors, judges and clerks of an election fifty cents per hour for full time employed by each of them. The person carrying the returns to the county auditor shall be entitled to ten cents per mile for each mile traveled.'

Other exhibits attached to the alleged libelous answer, and made a part thereof by reference, would reasonably warrant an inference that, after Johnston, the plaintiff in this action, and his assistant prosecuting attorney John W. Fishburne, went out of office in January, 1939, they, collaborated with Gaspard in promoting the action in which the alleged libelous answer was filed. Exhibit 'F' reads as follows:

'Pierce County Democratic Central Committee

'Tacoma, Wash.

'Dear sir or Madam:

'This is to introduce Mr. I. C. Gaspard, Democratic Precinct Committeeman, Puyallup Precinct #1, Ward #1. He is getting enough assignments from former members of the precinct election boards to justify the bring--of an action against this county.

'This action is for the purpose of proving that the county has not been paying those persons serving on the boards as much as the law allows. A favorable decision in this case will benefit all persons on the election boards in the future.

'There is not enough money involved in any one precinct to make this case worth while, but assignments from a number of precincts will involve a large enough sum to pay for the work which is necessary in obtaining signatures and trying the law case.

'I feel sure that each of you will recognize the need for working collectively and will assign your interests to Mr. Gaspard.

'Sincerely yours,

'John W. Fishburne,

'County Chairman.'

It would appear, or rather it is inferentially alleged, that Mr. Gaspard, with legal assistance, got out a circular to past election officials. The circular which appears as an exhibit to the alleged libelous answer we reproduce, in part, as follows:

'Of Interest to All Persons Who Served on Precinct Election Boards During the Past Three Years

'General Election Laws, State of Washington:

'[Here follows Rem.Rev.Stat. § 5166, providing for fifty cents per hour and ten cents mileage, and certain other election regulations.]

'The following has been brought to our attention:

'The legal fee has not been paid to members of election boards.

'Inspectors calling for books have not been paid extra allowance.

'Persons taking in the returns have not received the 10¢ per mile.

'The pay is not the same for all election boards for the same election. (Some country precinct members received $7.00.)

'Persons not on election boards received 50¢ per hour straight time.

'Extra clerks in balloting precincts came to work at 8 p m. and received 50¢ per hour from 7:30 on, full time.

'Cost of machines per election, int. on investment, depreciation, etc. $50.00.

'County auditor asks for new building for storage to save cost of storage.

'Election boards in other counties in this state receive legal rate.

'Precinct election boards working from 7:30 a. m. to 8:30 p. m. received $5.00. Rate of pay 35 1/2¢ per hour or $68.00 pr. month. Who in the court house works for that amount?

'With deputy sheriffs at the rate of $175.00 per month and others in proportion. WPA basic wage 58¢ per hour.

'We maintain that no County Officer has the right to disregard the law and set-up conditions contrary to law, or to hire and fire.

'Objections have been raised individually and collectively without results. We are asking you to sign the enclosed assignment to provide funds, without cost to you, to have this condition rectified and to take it into court, if necessary. Individually the amount is not large but collectively it will amount to enough to pay for court costs and taking assignments.

'Many have signed and we would like to have you join with us for the benefit of all election boards in Pierce County. 'Sign the enclosed assignment, be sure to fill out your time for each election as well as the date and address, precinct number or name.

'Mail at Once Today Do Not Delay

'To I. C.

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