Smith v. Lamping

• Decision Date: 13 March 1902
• Citation: 27 Wash. 624,68 P. 195
• Court: Washington Supreme Court
• Parties: SMITH v. LAMPING et al.

68 P. 195

27 Wash. 624

SMITH v. LAMPING et al.

Supreme Court of Washington

March 13, 1902

Appeal from superior court, King county; Boyd J. Tallman, Judge.

Injunction by Everett Smith against George B. Lamping, in which E. W Wood was brought in as a party defendant. Order granting a temporary injunction, and defendants appeal. Affirmed.

Jas. McNeny, Walter S. Fulton, N.H. Faben, and McClure & McClure, for appellants.

Preston Carr & Gilman, for respondent.

HADLEY J.

This suit was instituted by respondent against appellant George B Lamping. The complaint alleges that respondent is the owner of real and personal property situate in King county, Wash which is subject to taxation therein, and that he was at all times mentioned in the complaint, and is now, a taxpayer of said county, resident therein; that said appellant was at all times mentioned in the complaint the duly elected, qualified, and acting county auditor of said county; that at all times since the 1st day of January, 1901, and for years prior thereto, the county auditor of King county kept in his office, as such county auditor, a general index, direct and inverted, a detailed description of which is set out, and which is in conformity with the requirements of section 412, 1 Ballinger's Ann. Codes & St. It is also alleged as follows: 'That, notwithstanding the facts aforesaid, the board of county commissioners of said King county, on the 18th day of April, 1901, entered into a contract in writing with one E. W. Wood, in words and figures following, to wit: 'This agreement, made and entered into this 18th day of April, A. D. 1901, by and between E. W. Wood, party of the first part, and the county of King, in the state of Washington, by and through the board of county commissioners of King county, Washington, the party of the second part: Witnesseth, that the said party of the first part, in consideration of the sum of twenty-two thousand five hundred ($22,500.00) dollars, to be paid as hereinafter set forth by the said party of the second part, hereby agrees to compile, tabulate, and complete to the date of Dec. 31st, 1901, in a thorough and workmanlike manner, for the said county of King, a set of numerical or tract indexes, as per exhibit marked 'A' and 'B' hereto attached, and shall be estimated to run about ten years from and after the date the same are turned over to and are accepted by the county of King, showing all instruments filed or of record in the county auditor's office of said King county affecting the title of all real estate in said King county, state of Washington, and to complete said work to the date he shall turn the same over to said county in a good and workmanlike manner within one year from the date hereof. And in consideration of the premises aforesaid the said party of the second part agrees to pay to the said party of the first part the sum of $22,500.00, and to pay therefor on or before the seventeenth day of each and every month during the continuation of this contract the sum of ninety per cent. of the estimated work performed in connection with said indexes during the preceding month, said estimate subject to the approval of the county auditor, deferred payments to be paid upon completion and acceptane of the work by the board of county commissioners of said King county. All payments are to be made in warrants drawn on the current expense fund, or in cash, as the board may elect. And the said county of King hereby agrees to furnish to the said party of the first part all books, blanks, and other stationery or material necessary to compile, tabulate, and complete the said work, the same to be furnished upon order of the said party of the first part from time to time, so that the work may not be delayed, and to be of the form and style designated by the party of the first part, or as hereafter may be agreed upon by the parties hereto. And the county of King further agrees to furnish the necessary competent persons to carefully compare and check said work as the same progresses, said checkers to be appointed by and under the supervision of the said county auditor; also, such draughtsmen as are needed by the party of the first part. The said party of the first part and his employés are to have full access to the books and records of the county of King during working hours. The party of the second part to furnish every reasonable facility to enable the party of the first part to expeditiously carry on the work.'' It is further alleged that said contract was entered into by the said board of county commissioners over the objection and protest of the appellant Lamping, and that said appellant refused to sign or attest the same as county auditor or as ex officio clerk of said board; that upon the execution of said contract the said E. W. Wood entered upon the performance thereof, and has since that date been engaged in performing the same; that the said appellant Lamping has made an estimate of the amount earned under said contract by the said Wood for the month of April, 1901, estimating the same at the sum of $80, and has prepared a warrant in favor of said Wood for the amount of said estimate, less 10 per cent. thereof, to wit, for the sum of $72, and the issuance of said warrant was on the second day of May, 1901, approved by said board, and the board on said day authorized the payment of the said claim in said sum of $72 on account of the contract aforesaid, and that said appellant threatens and intends to issue and deliver said warrant to said Wood, and will do so unless restrained by order of the court. The complaint also avers as follows: 'That the set of indexes contemplated by said contract are what are known as tract indexes, in which the various instruments of record are indexed under the heading or description of the real property affected thereby, and if completed will constitute an index to the records by tracts instead of by the names of the parties thereto, in manner substantially as follows, to wit: A division or page of the index is set apart to a lot or subdivision of land, and in said division, or on said page, is entered in consecutive order or record thereof the volume, the page, and the names of the parties to each recorded instrument affecting said lot or subdivision. That such a system of tract indexes is not required by the laws of the state of Washington to be kept by the county auditor at the expense of the county, or at all, and the making of the same would impose a burden of expense upon the county of King and the taxpayers, not only in the amount of the original cost thereof contemplated in the contract, to wit, $22,500.00, but also the expense of keeping the same up to date in the future, and would thereby increase the amount of taxes and rates of taxation assessed and levied upon and on account of all the taxable property in said county, to the great and irreparable damage of the taxpayers of said county, including the plaintiff.' The complaint prays that a temporary restraining order may issue pending the hearing of the cause, and that the same may be made permanent upon final hearing. After the commencement of the suit the said appellant Lamping moved the court that said E. W. Wood, one of the appellants, be made a party defendant in the action, for the reason that he is a necessary party to the complete determination of the questions involved in the suit. The court, deeming him to be such necessary party, granted said motion, and ordered that said appellant Wood be made a party defendant. Thereupon the appellants demurred to the complaint separately, each alleging that the complaint does not state facts sufficient to constitute a cause of action. Other grounds of demurrer alleged in the demurrer of appellant Lamping are not urged. The demurrers were overruled. Thereafter the court heard the application for a temporary injunction upon affidavits submitted by both appellants and respondent, and thereupon granted the same. A temporary injunction was issued restraining the delivery of the aforesaid warrant, or the issuance of any warrant, on account of the aforesaid contract, pending the final determination of the cause. From the order issuing said temporary injunction this appeal was taken.

It is assigned as error that the court overruled the demurrers to the complaint. It appears, by a supplemental record brought here by respondent, that subsequently to the time the demurrers were overruled and the temporary injunction issued, respondent filed an amended complaint, in which it is alleged, in addition to what was alleged in the original complaint, that the cost to King county of the installation of the system of tract indexes contemplated by the said contract will, when added to the ordinary running expenses of the auditor's office of said county, far exceed the amount of legal fees collectible by said office during the year 1901. It is urged that said allegations show the contract to be in violation of the terms of chapter 131, p. 427, Laws 1893. This court cannot, however, consider the amended complaint upon the demurrers now before the court, since the demurrers were directed to the original complaint and the order appealed from issued thereunder. Appellants assert, in their brief, that issue has been joined on the amended complaint, and that the same has not been disposed of by the court below. The supplemental record does not disclose any issue joined or any proceedings had upon the amended complaint, but there is no appeal here from any proceedings had thereon, and we must therefore consider the demurrers in connection with the original complaint alone.

Respondent contends that the contract shown in the complaint is ultra vires of the board of county commissioners. Appellants base their...