King County v. Stringer

• Decision Date: 30 June 1924
• Docket Number: 18049.
• Citation: 130 Wash. 287,227 P. 17
• Court: Washington Supreme Court
• Parties: KING COUNTY v. STRINGER et al.

227 P. 17

130 Wash. 287

KING COUNTY v. STRINGER et al.

No. 18049.

Supreme Court of Washington, En Banc.

June 30, 1924

Appeal from Superior Court, King County; Mills, Judge.

Action by King County against John Stringer and others. From a judgment, both parties appeal. Affirmed on appeal of defendants, and reversed on plaintiff's appeal, with directions.

Parker Mitchell, and Main, JJ., dissenting.

Poe, Falknor & Falknor, C. B. White, and Caldwell & Evans, all of Seattle, for appellants.

Malcolm Douglas and Arthur Schramm, Jr., both of Seattle, for respondent.

PEMBERTON J.

King county commenced this action to recover from the defendant Stringer, formerly sheriff, and the National Surety Company surety on his official bond, for moneys alleged to be the property of the county received by Stringer by virtue of his office and not accounted for or paid over to the county together with interest.

The complaint alleges in substance that Stringer was the duly elected and qualified sheriff of King county for the term 1919-20; that the surety company was surety on his official bond in the sum of $5,000; that by virtue of Stringer's office as sheriff he received from the United States, for the support, care, and custody of United States prisoners while in his keeping in the county jail, which was being maintained including sustenance and the care of all prisoners wholly at the expense of the county, sums of money aggregating $21,732.64, of which amount he had accounted for and paid into the county treasury only $15,769.80, retaining and appropriating to his own use the sum of $5,962.84 without authority of law. The denials in the answer constitute little else than a denial of Stringer's unlawful appropriation of any money received by him from the United States manifestly upon the theory that the money retained by him that was received from the United States was at no time the property of the county, but was his individual property.

As an affirmative defense it is alleged, in substance, that Stringer was sheriff of King county during two terms, January, 1917, to January 10, 1921; that prior to May, 1919, during his term as sheriff, the United States placed in his custody in the county jail numerous prisoners at different times, including Shubart, Nutter, Comstock, and Cave, each of which four just named, deeming himself unlawfully imprisoned by Stringer, commenced an action in the superior court to recover damages from Stringer for such alleged unlawful imprisonment, the aggregate of such claims being $39,000; that prior to May, 1919, the commissioners of King county 'had fixed and ordered a per diem charge of 60 cents for the keeping of each United States prisoner in the King county jail, and had arranged with Henry M. White, commissioner of immigration at Seattle, Wash., for receiving United States prisoners for said charge of 60 cents per day for each United States prisoner.' It is further alleged that prior to May, 1919, the auditing department of the United States government refused to allow King county more than 60 cents per day for the maintenance, care, and custody of such prisoners; that in the spring of 1919, while the actions for damages referred to were pending, Stringer----

'entered into negotiations with the inspector of prisons of the United States, who was employed by the Attorney General of the United States, with a view and for the purpose of making arrangements whereby plaintiff in this case would receive the maximum amount fixed by the county commissioners for the support of the United States prisoners in the King county jail and stockade, and at the same time over and above such sum a reasonable amount as would protect and save harmless the defendant, individually, not as sheriff, on account of such pending litigation hereinbefore referred to as having been instituted against him by the United States prisoners, and to save him harmless on account of such other or possible litigation as might arise in connection with the receipt, care, custody, and control of other subsequent United States prisoners * * * that the Attorney General of the United States in accordance with the United States statutes on or about May 9, 1919, entered into an arrangement effective June 1, 1919, under and by virtue of which the plaintiff in this case received 60 cents per day, the amount previously fixed by the county commissioners, for each United States prisoner kept in the King county jail, and over and above such amount as the property of this defendant John Stringer, individually, received the sum of 25 cents per day for each United States prisoner placed in the King county jail, and that such payment of 25 cents per day was intended by the United States government to be and was over and above any sum of money whatever that the plaintiff should receive in connection with the care, custody, control, or subsistence of United States prisoners placed in the King county jail, and was intended by the United States government to be and was the individual and absolute property of this defendant, John Stringer, to indemnify and protect him on account of litigation then pending or that might thereafter arise for which he would be or was individually responsible on account of United States prisoners theretofore or thereafter placed in the King county jail; * * * that all moneys under said arrangement with the Attorney General relative to the placing of United States prisoners in the county jail which were to be paid to the plaintiff were promptly paid to him, and that said sum of 60 cents per day was understood to be and was full and adequate compensation to the plaintiff for the subsistence, care, custody, and control in the King county jail of prisoners of the United States.'

The county demurred to this affirmative defense upon the ground that it did not state facts sufficient to constitute a defense. The demurrer was sustained.

The cause proceeded to trial on the complaint and the denials contained in the answer, resulting in the trial court taking the case from the judgment of the jury, and deciding as a matter of law that the county is entitled to recover from John Stringer the sum of $6,522.25 with interest, that being the full amount unaccounted for received from the United States by him before and after he ceased to be sheriff with interest thereon, and also that the county recover from the surety company the sum of $2,850.09, that being the amount unaccounted for that was received from the United States by Stringer before the expiration of his term as sheriff; the court holding that the surety company was not liable for money that was received by Stringer after he had ceased to be sheriff, though he was personally liable therefor. From this disposition of the case in the superior court both defendants have appealed, and thereafter the county appealed from so much of the judgment as denied it recovery against the surety company to the extent of $5,000, the amount of the official bond.

The principal contention on behalf of Stringer and the surety company is that the trial court erred in sustaining the county's demurrer to the affirmative defense, and, in turn, in excluding evidence offered at the trial tending to prove facts in substance as therein alleged. This offer of proof was made, not only upon the theory of an affirmative defense, but also upon the theory that the evidence offered was admissible under the denials of the answer. Stated another way, the main question is as to the right of Stringer to retain as his own any portion of the money received by him from the United States for the maintenance or in connection with his care of United States prisoners in the county jail, conceding the facts to have been as alleged in the affirmative defense in the offer of proof. It hardly needs argument to demonstrate that Stringer received all of the moneys in question because of the fact that he was the sheriff of King county and because of the fact that he rendered services which under the state law he was required to render as sheriff, although, in a sense, he rendered them for the United States. Had he not been the sheriff of King county, he would not have been enabled to render any such service to the United States or to receive its money therefor. He was a county and not a federal officer. In rendering such service he used the means and property provided by and that belonged to the county, at its, not his, expense, and without which he could not have rendered the services. One of the duties sheriffs are required to perform is prescribed in section 6, c. 103, Session Laws of 1917, being section 10209, Rem. Comp. Stat., as follows:

'It shall be the duty of all county sheriffs or other officials having charge of jails to receive and keep in such jail, where room therefor is available, all prisoners committed thereto by process or order issued under the authority of the United States until discharged according to law, the same as if such prisoners had been committed under process issued under authority of the state of Washington provisions being made by the United States for the support of said prisoners, and any extra guards or attendants required.' No argument is needed to demonstrate that this is an official duty prescribed by statute. A number of constitutional and statutory provisions make plain and certain the intent that certain county officials, including sheriffs, shall be compensated for the performance of all their official duties only by salaries fixed by or in pursuance of statute. Stringer as sheriff of King county was a salaried officer, his salary being payable by the county as provided for by statute. In section 8, art. 11, of the state Constitution, it is provided that 'the Legislature shall fix the

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