Nelson v. Troy

• Decision Date: 20 March 1895
• Citation: 11 Wash. 435,39 P. 974
• Parties: NELSON v. TROY, COUNTY AUDITOR (RICHARDSON, COUNTY CLERK, INTERVENER.
• Court: Washington Supreme Court

39 P. 974

11 Wash. 435

NELSON v. TROY, COUNTY AUDITOR (RICHARDSON, COUNTY CLERK, INTERVENER.

Supreme Court of Washington

March 20, 1895

Appeal from superior court, Clallam county; James G. McClinton Judge.

Action by Henry Nelson, a resident and taxpayer of Clallam county to restrain John W. Troy, auditor of said county, from issuing a warrant upon the county treasurer for payment of services of the deputy county clerk. A. A. Richardson, county clerk, was permitted to intervene; and from a judgment sustaining defendant's demurrer to the complaint, and dismissing the cause, plaintiff appeals. Affirmed.

Benton Embree, for appellant.

John W Troy and A. A. Richardson, pro se.

GORDON, J.

This proceeding was instituted by the appellant in the superior court of Clallam county, for the purpose of restraining the county auditor from issuing a warrant upon the county treasurer for the payment of services of the deputy county clerk of said county. The respondent Richardson, the clerk of said county, was permitted by the court to intervene in the action. The lower court sustained the auditor's demurrer to the complaint, and, the appellant having elected to stand on his complaint, judgment was rendered dismissing the cause from which judgment this appeal is taken.

It appears from the complaint (1) that the appellant is a resident and taxpayer of Clallam county; (2) that said county is, by legislative classification, a county of the twenty-third class, and the salary fixed and allowed by law to be paid to the county clerk of said county is $1,000 per annum; (3) that on February 6, 1893, and subsequent to the election and qualification of the county clerk, the county commissioners, by an order therefor duly made, allowed said clerk a deputy for an indefinite period, and fixed the salary of such deputy at $1,000 per annum, and also by appropriate resolution empowered and directed the respondent auditor to draw his warrant upon the treasurer of said county on the first Monday of each month thereafter for the salary due said deputy for the preceding month; and that from the date of such appointment until the beginning of this action such course had been followed, etc. Other matters set out in the complaint are unnecessary to a proper understanding of the questions here presented.

For a reversal of the judgment, appellant relies upon the following points: (1) That the provisions of the act of March 26, 1890, authorizing county commissioners to allow county officers deputies, and to fix their compensation, are invalid, as an attempt upon the part of the legislature to delegate the exercise of powers exclusively legislative; (2) that the effect of the order is to increase the salary of the county clerk during his term of office; (3) that the effect of the provision of the act authorizing the commissioners to fix the salaries of deputies is to destroy the uniformity of the operation of the law; and (4) that the court erred in permitting the county clerk to intervene in the suit.

Section 5, art. 11, of the constitution provides: "The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties and fix their terms of office. It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population." Section 8 of the same article further provides: "*** The salary of any county *** or municipal officer shall not be increased or diminished after his election, or during his term of office." Section 29, art. 1, is as follows: "The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise." At the first legislative session subsequent to the adoption of the constitution of this state, an act was passed for the evident purpose of carrying into effect the mandatory provisions of section 5, art. 11, of the constitution , above quoted. The act begins with the statement (section 1, Act March 26, 1890) that, "for the purpose of regulating the compensation of county officers herein provided for, the several counties of this state are hereby classified according to their population," etc. The act then proceeds to classify counties accordingly, to provide for the election of officers, and to fix their term of office and compensation. The provisions of that act which are directly assailed by the appellant herein as being in conflict with section 5, supra, and an unwarranted delegation of exclusive legislative power, are found in sections 2 and 32. Section 2 is as follows: "*** And in all cases where the duties of any office are greater than can be performed by the person elected to fill the same, said officer may employ, with the consent of the county commissioners, the necessary help, who shall receive a just and reasonable pay for services. The officer appointing such deputies or clerks shall be responsible for the acts of such appointees upon his official bond." The authority conferred by this section is sufficient to entitle the respondents to prevail herein if the legislation itself is not unconstitutional; hence we will not construe section 32 of the act.

It is a general rule that before the judiciary will declare an act of the legislature invalid, on the ground that it is in conflict with the constitution, such conflict must be shown to be clear and unquestionable, and every intendment must be given force in favor of the constitutionality of the law. But appellant contends that section 5, art. 11, of the constitution, above quoted, is a restriction and limitation upon the power of the legislature to intrust the employment of clerks, deputies, or assistants to the county officers to the board of commissioners; and that, by the provisions of said section 5, it was the duty of the legislature in fixing the compensation allowed county officers for their services to so regulate the same that the sum so fixed by the legislature should be inclusive of all services performed by such officers, their deputies, clerks, or assistants. And he further contends that by section 2, above set out, an attempt is made to delegate to the board of commissioners the authority to change the law fixing the salaries of county officers whenever it shall appear to said board that the salaries fixed are inadequate for the services required of such officers. Hence it becomes necessary to construe section 5 of the constitution, in order to determine its effect upon the legislation in question.

Section 5, art. 11, of the constitution of California provides "The legislature, by general and uniform laws, shall provide for the election or appointment in the several counties, of boards of supervisors, sheriffs, county clerks. *** It shall regulate the compensation of all such officers in proportion to the duties, and for this purpose may classify the counties by population." An act of the legislature of that state provided for the classification of counties, and fixed the compensation of a given officer in a lump sum, out of which it expressly required him to pay for the services of all deputies and assistants; his own compensation virtually consisting of the residue remaining after such deputies and assistants were paid. At a subsequent session an amendment was passed, providing that, "whenever in the opinion of the board of supervisors the salary of any county officers [in certain classes of counties] as fixed and provided in this act is insufficient to pay a reasonable compensation for the services required to be performed, then said board shall allow such officer a deputy, or such number of deputies, as in their judgment may be required to do the business of said office in connection with the principal, at a salary not to exceed one hundred dollars per month." And this amendment was by a divided court, in the case of Dougherty v. Austin, 94 Cal. 601, 28 P. 834, and 29 P. 1092, declared to be unconstitutional and void as an attempt by the legislature to delegate to the board of supervisors the duty imposed on it, by the section of their constitution already quoted, of regulating the compensation of all county officers in proportion to their duties. The act was also held to be void as being in conflict with section 9, art. 11, of...