Kerr v. King County

• Decision Date: 08 July 1953
• Docket Number: 32268,Nos. 32267,s. 32267
• Citation: 259 P.2d 398,42 Wn.2d 845
• Parties: KERR, v. KING COUNTY. OWEN, v. KING COUNTY.
• Court: Washington Supreme Court

Page 845

42 Wn.2d 845

259 P.2d 398

KERR, v. KING COUNTY.

OWEN, v. KING COUNTY.

Nos. 32267, 32268.

Supreme Court of Washington, Department 2.

July 8, 1953.

Charles O. Carroll, Pros. Atty., V. C. Bradeson, Seattle, for appellant.

Monheimer, Schermer & Mifflin, Seattle, Melville Monheimer, Jr., Seattle, of counsel, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from judgments rendered against King County for services rendered.

Harold J. Kerr sued King County for $340.76 for overtime work performed for the county. Other workmen assigned their claims to him. In his second cause of action he sued for $329.64 for services performed by Dorace A. Robertson. The third cause of action was for the value of services performed by Edward A. Hayden. This cause was dismissed. In his fourth cause of action he sued for $613.76 for services performed by W. C. Muhlenberg.

Fred Owen sued for $95.16 for services performed by himself. Both cases were consolidated for trial.

At the beginning of the trial each cause of action of the complaints was amended to include the following:

'That within three years prior to the filing of the complaint herein plaintiff performed work and labor for the benefit of the defendant, which said work and labor defendant accepted and permitted the benefit thereof to accrue to the said defendant; that said work and labor was all after the expiration of the normal 8-hour day for which plaintiff was specifically employed.'

The plaintiffs were all employees of King County District No. 3 (North District). Joseph A. Whetstone was the commissioner representing District No. 3 at the time the work was performed. He was later removed from office, and Dean C. McLean was appointed in his stead. Shortly thereafter the employment of the plaintiffs was terminated. (This was before they were given time off for overtime theretofore performed, which will be discussed later.) The county claimed that the employment was terminated due to lack of funds; that more than the allocated funds had been spent and that it became necessary to curtail the number of employees. The plaintiffs, on the other hand, claim that they were discharged because they were Democrats.

Each year, in accordance with the Budget Law, the county commissioners adopt, by resolution, a pay scale for the various classifications of positions, setting forth the monthly scale of wages for each classification. All of the plaintiffs were on monthly salaries. There is no question that each plaintiff received the full amount of his salary as provided in the budget.

However, this practice has grown up in King County. From time to time emergencies, such as floods, etc., require the men to work overtime on the roads. This is also true with regard to oiling jobs. The men may start to work at six a. m. and continue until ten p. m. When they work overtime, they are not compensated in cash. Their overtime hours are turned in on the regular pay roll. The accountant gives them time and one-half on their records, and that overtime is taken out in vacations within the year that it is served, in addition to the regular vacation, or, by working fewer hours on other days. For example, if a man has four hours of accumulated overtime coming, then he would take six hours off on a designated day, but he would be paid for it.

No resolution was ever adopted by the Board of County Commissioners providing for such arrangement, or giving the commissioner in each district control of the working hours, vacation hours, accumulated overtime, or the like. Such matters were not even discussed between them. But apparently each commissioner followed such procedure.

Each of the plaintiffs had acquired accumulated overtime. However, before they could add this to their vacation periods, their services were terminated. Mr. Kerr testified that he was discharged September 17, 1947, but was paid for the entire month, thus allowing him vacation time, but no overtime.

We quote the following Findings of Fact in the case of Owen v. King County. Similar findings were made in each cause of action in the Kerr case.

'III. That within three years prior to the filing of the complaint herein, plaintiff performed work and labor for the benefit of the defendant, at the special instance and request of said defendant; that defendant accepted and permitted the benefit thereof to accrue to said defendant. That said work and labor was in the direct employ of defendant, and that all of said work and labor was performed after the expiration of the normal 8-hour working day for which plaintiff was specifically employed. That by express agreement with the Board of County Commissioners of King County, by and through the then duly authorized representative of said Board of County Commissioners of King County, said work and labor was to be compensated at the rate of time and one-half.

'IV. That the Board of County Commissioners of King County passed no formal resolution allowing this overtime compensation, but that the allowance of this overtime compensation was within the framework of the resolution passed by said Board of County Commissioners and that incidental to it said Board of County Commissioners provided for it in their budget and fixed the wages for it.

'V. That the practice has been of long standing in King County, and is still the practice of King County, whereby it is necessary in times of bad weather and emergency and flood conditions to work the road employees for substantial periods in excess of the 8-hour day. That said overtime had been compensated by time off during slack seasons, on an hourly basis, and accordingly the County and its citizens receive the benefit of said overtime work. That the overtime work performed by the plaintiff above named was required of said plainiff by his direct superior by reason of emergency conditions, and that by reason of plaintiff's termination from his position with defendant, King County, plaintiff did not receive time off for said overtime work. That by said practice, said Board of County Commissioners have gained a benefit for said defendant which is within the framework of the budget.

'VI. That said express contract between plaintiff and defendant for the compensation of said overtime worked by said plaintiff was breached by defendant when defendant terminated plaintiff's employment and discharged plaintiff without compensating plaintiff for overtime which he had worked.

'VII. That in reliance upon said express agreement, plaintiff worked 61 hours overtime at the monthly rate of $250.00 per month, making a total due him of $95.16 from defendant.

We find nothing in the record showing any express agreement with the Board of County Commissioners of King County, as stated in Finding No. 3. We are satisfied that there was no such express agreement.

We find nothing in the record showing that the allowance of overtime compensation was within the framework of the resolution passed by the Board and that incidental to it the Board provided for it in their budget and fixed the wages for it, as stated in Finding No. 4.

We find nothing in the record that, by the practice of working road employees overtime, the Board has gained a benefit for the defendant 'which is within the framework of the budget,' as stated in Finding No. 5.

We find nothing in the record concerning an express contract, or the breach thereof, or the reliance thereon, as stated in Findings No. 6 and No. 7.

If plaintiffs can recover at all, it must be because, as found in Finding No. 3, they performed work and labor for the benefit of the defendant, at the special instance and request of the defendant; and that the defendant accepted and permitted the benefit thereof to accrue to itself. In other words, they must recover on an implied contract.

A contract, to be binding upon a municipal corporation, must be executed by the department, board, committee, council, officer, or agent vested by law with power to make it. A county is governed by its board of county commissioners. No individual commissioner has the power to bind the county. Hailey v. King County, 21 Wash.2d 53, 149 P.2d 823, 154 A.L.R. 351.

RCW 36.40.010 et seq. provide for county budgets, preliminary estimates, notice of hearing, hearing, fixing of final budget, etc.

RCW 36.40.100 provides:

'The estimates of expenditures itemized and classified as finally fixed and adopted in detail by the board of county commissioners shall constitute the appropriations for the county for the ensuing fiscal year; and the county commissioners and every other county official shall be limited in the making of expenditures or the incurring of liabilities to the amount of such detailed appropriation items or classes respectively: * * *.'

RCW 36.40.130 provides:

'Expenditures made, liabilities incurred, or warrants issued in excess of any of the detailed budget appropriations or as revised by transfer as herein provided shall not be a liability of the county, but the official making or incurring such expenditure or issuing such warrant shall be liable therefor personally and upon his official bond. The county auditor shall issue no warrant and the county commissioners shall approve no claim for any expenditure in excess of the detailed budget appropriations or as revised under the provisions hereof, except upon an order of a court of competent jurisdiction, or for emergencies as hereinafter provided. Any county commissioner, or county auditor, approving any claim or issuing any warrant in excess of any such budget appropriation except as herein provided shall forfeit to the county fourfold the amount of such claim or warrant which shall be recovered by action against such county commissioner or auditor, or all of them, and the several sureties on their official bonds.'

RCW 36.40.140 and 36.40.180 provide for emergency appropriations. No emergency appropriations were adopted by the commissioners in the case at bar.

In State...