Maxwell v. Smith

• Decision Date: 05 November 1915
• Docket Number: 12345.
• Citation: 152 P. 530,87 Wash. 629
• Court: Washington Supreme Court
• Parties: MAXWELL v. SMITH, City Auditor, et al.

152 P. 530

87 Wash. 629

MAXWELL v. SMITH, City Auditor, et al.

No. 12345.

Supreme Court of Washington

November 5, 1915

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by W. J. Maxwell against J. Anthony Smith, as Auditor of the City of Spokane, and others. Decree for plaintiff, and defendants appeal. Reversed, with directions to dismiss.

H. M. Stephens, of Spokane, for appellants.

E. D Reiter, of Spokane, for respondent.

MORRIS C.J.

In this action W. J. Maxwell, suing as a resident taxpayer of the city of Spokane, sought to enjoin the auditor and treasurer of that city from paying the appellant Stephens any salary for his services as corporation counsel. Stephens was appointed to the office of corporation counsel by the city council, and his appointment confirmed by an ordinance defining his duties and fixing his salary at $1,500 per month. By the terms of his employment he was to 'furnish at his own cost necessary law assistants and stenographers sufficient, proper and adequately to attend to the legal business of the city.' The grounds on which the injunction is asked are: (1) That this plan of compensation whereby the corporation counsel is allowed to fix the salary of his assistants, violates section 26 of the city charter; and (2) that Stephens has not taken the oath of office required by section 34 of the city charter. The lower court entered an injunctive order, from which this appeal was taken.

Section 26 of the city charter provides that:

'The council shall fix the compensation of all officers assistants and employés, and may change the same.'

In support of the decree it is contended that this section gives the council alone power to determine the compensation of assistants to the corporation counsel, and that by paying Stephens a lump sum, and allowing him to determine the salary to be paid his assistants, the council has unlawfully delegated its power to fix the compensation.

Granting, for the purposes of argument alone, that the ordinance is an illegal delegation of power, it does not follow that the injunction should issue upon the application of respondent unless he has made such a showing as entitled him to relief. Jones v. Reed, 3 Wash. 57, 27 P. 1067, and other cases, sustain the rule that a suit will not lie at the instance of a taxpayer to restrain the illegal act of a state officer. Appellants contend this principle is applicable here. The rule as to state officers must be regarded as settled in this state, but there is a fundamental distinction between restraining an officer of a sovereign state and the restraining of a city official. Citizens and taxpayers are uniformly allowed to restrain illegal acts of city officials under a showing that the illegal act will result in injury to the taxpayer.

On the question of whether a taxpayer seeking injunctive relief must show special damages, the courts are somewhat divided, but they are a unit in holding that at least general damage must be shown. In Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070, cited in Jones v. Reed, supra, and in all the cases which declares that a taxpayer need show no special damage to himself different from that suffered by the taxpayers at large, there was a showing that a general injury would be sustained by the taxpayer. It was further shown that the act sought to be restrained involved an illegal expenditure of municipal funds or the creation of a debt for which taxes would be levied. In such cases it is held that the party seeking to enjoin the illegal act is not required to show any special damage to himself not suffered by the taxpayers generally. This line of authority is of no value to respondent, however; there being no showing here of either special damage to respondent or of general damage to the taxpaying public. On the contrary, there is a showing that the contract with the appellant Stephens has resulted in decreasing the cost of maintaining the office of corporation counsel, thus resulting in a benefit rather than a damage to the taxpayers. It is the general rule, to which this case can furnish no exception, that:

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