Pacific County v. Willapa Harbor Pub. Co.

• Decision Date: 15 December 1915
• Docket Number: 12077.
• Citation: 88 Wash. 562,153 P. 360
• Parties: PACIFIC COUNTY v. WILLAPA HARBOR PUB. CO.
• Court: Washington Supreme Court

153 P. 360

88 Wash. 562

PACIFIC COUNTY v. WILLAPA HARBOR PUB. CO.

No. 12077.

Supreme Court of Washington

December 15, 1915

Department 2. Appeal from Superior Court, Pacific County; R.H. Back Judge.

Action by Pacific County, Wash., against the Willapa Harbor Publishing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lockerby & Couden, of South Bend, for appellant.

H. W B. Hewen, of South Bend, for respondent.

CHADWICK J.

Respondent brought this action to recover on two causes of action aggregating $244.50, which amount it is alleged was paid to the appellant by mistake and without authority in law.

The amount sought to be recovered was part of two payments made by the county to the publishing company for the printing of delinquent tax foreclosure notices provided for by Rem. &amp Bal. Code, § 9257. The printing was done by the appellant pursuant to his bid to print the county official notices at the following rates: 75 cents per square nonpareil for the first insertion; 50 cents per square nonpareil for each subsequent insertion; and 10 cents for each description of tax list. This bid was accepted by the county commissioners but, there is some question whether a contract embodying its terms was entered into between the parties. However, we will assume that there was a complete contract. In making its charges to the county the appellant charged for the descriptions at 10 cents each, and, in addition, charged at the rate per squares for the title and all matter excepting the descriptions of the property under the belief that its contract with the county authorized such charges. Bills rendered for the charges computed in this manner were approved by various county officers without comparison with the bid to ascertain that the charge was correct, and the bills were duly approved and paid by the county commissioners, who relied on the approval of the administrative officers for their correctness.

Rem. & Bal. Code, § 9257, in so far as material here, reads as follows:

'The publication of the summons or notice required by this section shall be made by the county treasurer in the official newspaper of the county: Provided, the price charged by any such newspaper for such publication for the whole number of issues shall not exceed in any case the sum of ten cents for each description contained in said notice.'

There can be no doubt that this section limits the price which the county may pay to 10 cents per property description inclusive of all matter in the notice, and, as this interpretation of the statute is not questioned, we will not discuss it further. Nor will it be necessary to determine what construction the commissioners placed upon the statute when the bid was accepted, for there could be but the one legal construction. Any payment by the county in excess of 10 cents per description for the entire notice was in violation of law, whether made pursuant to a contract or without a contract, and the sole question is whether this excess payment may be recovered by the county, and, if so, whether in this action. It will be unnecessary therefore to determine whether the payment was made under a mistake of law, that is, by the county under a belief that the appellant was entitled under his contract to the amount claimed, or whether under a mutual mistake of fact, that is, that the amount claimed was earned as provided by the statute.

It is well settled in this state that payments made by a city in violation of law may be recovered by the city. State ex rel. Grant Smith & Co. v. Seattle, 74 Wash. 438, 133 P. 1005; Seattle v. Walker, 152 P. 330. This court has frequently restrained counties from carrying out contracts entered into in violation of law, and the payment of money under such contracts. Arnott v. City of Spokane, 6 Wash. 442, 33 P. 1063; Smith v. Lamping, 27 Wash. 625, 68 P. 195; Chehalis County v. Hutcheson, 21 Wash. 82, 57 P. 341, 75 Am. St. Rep. 818; Green v. Okanogan County, 60 Wash. 309, 111 P. 226, 114 P. 457. None of these actions sought the return of money illegally paid, as did the city cases, but we find no difference in the governing principle.

In Green v. Okanogan County, supra, we had under consideration a contract entered into by the county commissioners. We said:

'Contracts entered into in defiance of the manner pointed out by the statutes, or which have no support in the statutes, bind no one. Money paid out in pursuance of such contracts can be recovered back from any person into whose hands it can be traced.'

The council and the commissioners find their authority to bind their principals in the statute, and must exercise the powers conferred upon them in strict compliance therewith. The right of a county to recover money paid on illegal claims has been generally recognized in actions by counties against their officers and against individuals. Union County v. Hyde, 26 Or. 24, 37 P. 76; Fremont County v. Brandon, 6 Idaho, 482, 56 P. 264; Campbell County v. Overly, 20 S.D. 640, 108 N.W. 247; Huntington Co. Comrs. v. Heaston, 144 Ind. 583, 41 N.E. 457, 43 N.E. 651, 55 Am. St. Rep. 192; Heath v. Albrook, 123 Iowa, 559, 98 N.W. 619; Honey v. Board of Comrs., Jewell Co., 65 Kan. 428, 70 P. 333. The last two cases cited are apt examples of the application of the rule.

In Heath v. Albrook, supra, the rule was applied, although the court conceded the rule contended for by the appellant here, that a payment made under a mistake of law applies to a municipal corporation as well as to an individual. The court said in part:

'It is contended on behalf of appellants that the decree, in so far as repayment is thereby ordered, cannot be sustained, for that it appears from the record that the payments made to Albrook were made under mistake of law, and that not even a court of equity may give relief from the consequences of such a mistake. We are agreed that this contention cannot be sustained. We may concede the general rule that payments made under mistake of law cannot be recovered back, and that municipal corporations, as well as natural persons, come within the operation of the rule. * * * But

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