State ex rel. Becker v. Wiley

• Decision Date: 26 January 1943
• Docket Number: 28811.
• Parties: STATE ex rel. BECKER v. WILEY.
• Court: Washington Supreme Court

133 P.2d 507

16 Wn.2d 340

STATE ex rel. BECKER v. WILEY.

No. 28811.

Supreme Court of Washington, En Banc.

January 26, 1943

Action by the State, on the relation of May J. Becker, executrix of the estate of May J. Becker, executrix of the estate of King Wiley, as auditor of Grays Harbor County, for a writ of mandamus directing respondent to issue and deliver to relator a warrant on the current expense fund of such county for payment of rental for office space occupied by the prosecuting attorney thereof. From a judgment of dismissal relator appeals.

Reversed with directions.

MILLARD BLAKE and MALLERY, JJ., dissenting.

Appeal from Superior Court, Grays Harbor County; W. M. nevins, judge.

Paul O. Manley, of Aberdeen, for appellant.

L. B. Donley, of Aberdeen, for respondent.

JEFFERS Justice.

This action was commenced in the superior court for Grays Harbor county, by the state of Washington on the relation of May J. Becker, executrix of the estate of Frank J. Becker, deceased, against Lota King Wiley, as auditor of Grays Harbor county, for the purpose of obtaining a writ of mandamus ordering and directing the auditor to issue and deliver to relator a warrant upon the current expense fund of Grays Harbor county, for the sum of fifty dollars, in payment of the September, 1941, rental for office space in the Becker Building, in Aberdeen, occupied by Stanley J. Krause, prosecuting attorney of Grays Harbor county.

From the affidavit and application for the writ, signed by relator, it appears that the estate of Frank J. Becker, deceased, is the owner and in control of an office building in Aberdeen, Washington, known as the Becker building, and that relator is the duly appointed, qualified and acting executrix of the estate. It further appears that relator had presented to the board of county commissioners of Grays Harbor county a claim-voucher in the sum of fifty dollars, for rent for the month of September, 1941, for office space in the Becker building used by the prosecuting attorney; that such claim-voucher was approved by the board and ordered paid, but respondent auditor arbitrarily and unlawfully refused to comply with the order of the board and issue and deliver to relator a warrant for such rent; that more than ten days have elapsed from the time the order of the board was made and the time when relator made demand on the auditor for a warrant; that the 1941 budget provided for rental of an office in Aberdeen to the extent of six hundred dollars, and that all of that amount has not been expended.

Respondent auditor filed a return to the writ, wherein it is alleged that the board, in attempting to authorize the rental of office space for the prosecuting attorney in Aberdeen, was acting beyond its power and jurisdiction; that adequate provision had been made for the prosecuting attorney in the court house at Montesano, the county seat; and that the Aberdeen office was used primarily for the private law business of the prosecutor and his deputies.

Relator demurred to the affirmative matter set up in the return. The demurrer was overruled, and the court proceeded to hear testimony. The only witnesses were Mr. Krause, the prosecuting attorney, and Mr. Manley, one of his deputies.

The court made and entered findings of fact, conclusions of law, and a decree in favor of respondent, and from this decree dismissing the proceedings with prejudice, relator has appealed.

The material facts as found by the trial court, and as they appear from the record, may be stated as follows: The prosecuting attorney's office of Grays Harbor county is composed of the prosecuting attorney, Stanley J. Krause, and two deputies. One of the deputies maintains his office at all times in quarters in the court house at Montesno, which quarters consist of one private office and a waiting room. In 1940, when the budget for the prosecuting attorney's office for 1941 was arranged and adopted by the commissioners, funds were provided for the payment of rental for an office at Aberdeen, in the sum of six hundred dollars, which funds have not been wholly expended for that purpose or any other. Since the spring of 1940, Mr. Krause and his deputy, Paul Manley, have occupied office space in the Becker building, in Aberdeen, and have used that office for the conduct of the official business of the prosecuting attorney. Neither Mr. Krause nor Mr. Manley maintains a separate private office, and both of them have some private practice, which the court found was conducted in the Aberdeen office. However, the court also found that there had been no neglect, of the county business by the prosecutor or his deputies.

Aberdeen is about ten or eleven miles west of Montesano, the county seat, and Hoquiam is about four miles west of Aberdeen. The population of Grays Harbor county is about fifty-three thousand; the population of Aberdeen, about nineteen thousand; Hoquiam about eleven thousand; and Montesano about two thousand two hundred.

Mr. Krause testified, and the court found, that the prosecutor and his deputies are consulted by large numbers of people and the justice courts, which are located in Aberdeen and Hoquiam, together with state officers who maintain headquarters at Aberdeen for the Washington state patrol; that Mr. Krause divides his time between the Montesano office and the Aberdeen office. The court further found that the commissioners did not act arbitrarily or capriciously in allowing the claim against the county.

In his memorandum opinion, the trial judge stated that the public convenience was served by the maintenance of the office at Aberdeen, but that the commissioners lacked the power to provide a second office for the prosecutor outside the county seat.

There are three questions presented by this appeal. (1) Is the county auditor justified in refusing, or has she the power to refuse, to issue and deliver a warrant for a claim presented to, allowed, and ordered paid by the commissioners, on the ground that the board had no power to allow the claim? (2) Have the commissioners the power, either express or implied, to provide office space for the prosecuting attorney. at some point outside the county seat, and pay therefor from county funds? (3) May the commissioners rent office space outside the county seat for the prosecuting attorney, and pay therefor from county funds, when both the prosecutor and his deputies use such office for the purpose of conducting therein their private practice as well as the county business?

We are concerned herein primarily with an analysis of the power of the board of county commissioners and the auditor, and this necessitates an examination and consideration of a number of our statutes.

Rem.Rev.Stat. § 4086, defines certain duties of the county auditor, and particularly his duties relative to the auditing of claims. This section provides in part as follows: 'He shall audit all claims, demands and accounts against the county which by law are chargeable to said county, except such cost or fee bills as are by law to be examined or approved by some other judicial tribunal or officer. Such claims as it is his duty to audit shall be presented to the board of county commissioners for their examination and allowance. For claims allowed by the county commissioners, as also for cost bills and other lawful claims duly approved by the competent tribunal designated by law for their allowance, he shall draw a warrant on the county treasurer, made payable to the claimant or his order, bearing date from the time of and regularly numbered in the order of their issue, and he shall carefully keep proper warrant books, and when a warrant is issued the stub shall be carefully retained, upon which shall be recorded the number, date, name of payee, amount, nature of claims or services briefly stated and by whom allowed.'

There have been a number of cases Before this court, involving the powers and duties of the auditor relative to claims allowed and ordered paid by the county commissioners or some other quasi-judicial body.

We have held that a county auditor was merely a ministerial officer, in so far as his powers and duties were concerned, in regard to certain claims allowed and ordered paid by the commissioners or other quasijudicial body. American Bridge Co. v. Wheeler, 35 Wash. 40, 76 P. 534; State ex rel. Heglar v. Wheeler, 146 Wash. 513, 263 P. 946. See, also, 20 C.J.S., Counties, p. 952, § 140.

However, in the cited cases, in holding that the auditor was a ministerial officer, we do not believe it was the intention of this court to hold, nor do we believe the cases hold, that an auditor may never challenge the power of the commissioners to allow a claim. On the contrary, we are of the opinion that the cases recognize that a situation may arise where the auditor is authorized and justified in refusing to issue a warrant on a claim approved and ordered paid by the commissioners. Dillon v. Whatcom County, 12 Wash. 391, 41 P. 174; State ex rel. Sheehan v. Headlee, 17 Wash. 637, 50 P. 493. We stated in the Dillon case, supra [12 Wash. 391, 41 P. 179]: 'The determination of the question whether a charge is a proper charge against the county is a legal proposition, and that of whether the employment of the service is necessary as a fact is entirely another proposition. The courts will determine the first, but will not enter upon the investigation of the latter, when the discretion has been submitted to another tribunal.'

While we stated in the case of State ex rel. Sheehan v Headlee, supra [17 Wash. 637, 50 P. 494]: 'It pretty conclusively appears from the statute in relation to the duties of the auditor, and from those in relation to the duties and powers of the board of county commissioners, that, when...