Spokane County v. Allen

• Decision Date: 21 June 1894
• Citation: 9 Wash. 229,37 P. 428
• Court: Washington Supreme Court
• Parties: SPOKANE COUNTY v. ALLEN ET AL.

37 P. 428

9 Wash. 229

SPOKANE COUNTY v. ALLEN ET AL.

Supreme Court of Washington

June 21, 1894

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by the county of Spokane against S. G. Allen and others on the official bond of said Allen as prosecuting attorney of said county. From a judgment for plaintiff, defendants appeal. Reversed.

Hoyt J., dissenting.

Turner, Graves & McKinstry, for appellants.

R. B Blake and F. T. Post, for respondent.

DUNBAR C.J.

This is an action upon the alleged official bond of appellant S. G Allen, as prosecuting attorney of Spokane county, joining the sureties in said bond with their principal, as parties defendant. At the general election held in Spokane county on November 4, 1890, Allen was voted for and declared elected to the office of prosecuting attorney for the county of Spokane. On January 10, 1891, he qualified, and gave the bond sued upon, and entered upon the discharge of his official duties. The pertinent condition of the bond was as follows: "If said S. G. Allen shall well and truly perform all the duties required of him by law as prosecuting attorney aforesaid, and shall pay over any and all moneys that may come into his hands as such, then this obligation shall be void; otherwise of full force and effect." On February 3, 1891, the legislature passed an act providing that all officers elected as county attorneys at the last general election should be declared to be prosecuting attorneys. Subsequently to the time when appellant executed the bond in question, to wit, on the 9th day of March, 1891, the legislature imposed upon the prosecuting attorneys of the state the duty of collecting delinquent taxes upon real estate, providing the manner in which they should prosecute by suit, and providing for attorney's fees in such cases. Allen, in the capacity of prosecuting attorney, during the year 1892, brought many of these actions for the collection of delinquent taxes, and retained the attorney's fees provided for by the statutes in such cases, and, upon settlement with the county, refused to account for them, claiming that under the law he was entitled to the same. The agreed statement of facts is much more elaborate, and contains other statements, but the foregoing is sufficient for the purposes of this opinion.

The disposition we are compelled to make of this case renders it unnecessary to discuss the first technical objection made by the appellants, viz. that the complaint does not state a cause of action, for the reason that it does not appear affirmatively that the delinquent taxes described were taxes collected on real estate, instead of personal property. We do not think there is any merit in the contention of appellants that there was no such officer, at the time the bond was given, as prosecuting attorney of the county. Outside of the facts in this case, which show that Allen was elected as prosecuting attorney for Spokane county, and gave his bond as prosecuting attorney for said county, we think, considering the provisions of the statute with relation to the provisions of the constitution, that the office of county attorney is identical with that of prosecuting attorney.

We have examined with attention and pleasure the many cases cited by both appellants and respondent on the question of de jure officers and de facto officers; but in this case the appellant Allen has assumed that the law applied to him, or to the office which he held. He performed the duties of the office, and, if we understand his position, seeks to retain the benefits of the application of the law to the office which he assumed. If he is not entitled to the fees and emoluments by reason of the applicability of the law to the office which he held, he is not entitled to them at all. These considerations, of course, as we shall hereafter see, do not apply to the sureties, but Allen is estopped from asserting them as a reason for not returning this money to the county.

Nor can we sustain the contention that it was the intention of the legislature that the attorney's fees provided for in the collection of delinquent taxes should be appropriated by the county attorney as compensation for duties extrinsic to the office. Section 25 of article 2 of the constitution provides that the compensation of any public officer shall not be increased or diminished during his term of office; and section 8 of article 11 provides that the legislature shall fix the compensation by salary of all county officers, except certain officers, which exceptions do not embrace the office in question, and provides again that the salary of any county, city, town, or municipal officer shall not be increased or diminished after his election; and the legislature, at its next session after the adoption of the constitution, proceeded to carry these provisions of the constitution into effect by fixing the salaries of the county officers, including that of the county attorney. It would seem that giving a plain interpretation to the language of the constitution, twice expressed, would be conclusive of this proposition; but appellant cites this court to one of its own decisions, viz. State v. Carson, 6 Wash 250, 33 P. 428, in support of his contention that the provisions of the constitution above cited do not preclude the legislature from increasing the compensation of public officers, where the performance of extrinsic services is imposed upon such officer. We do not think that the doctrine enunciated in that case should in any event be extended, though it is plainly distinguishable from the case at bar. In that case the court held that a legislative act which provided that the county treasurer should be charged with the duty of...