State ex rel. Day v. King County, 33771

Decision Date13 June 1957
Docket NumberNo. 33771,33771
CourtWashington Supreme Court
PartiesThe STATE of Washington, on the relation of John DAY and Walter Reinders, Appellants, v. The COUNTY of KING, State of Washington, a municipal corporation, and James A. Gibbs, William Sears and Dean C. McLean, as Commissioners of the County of King, and Tim McCullough, Sheriff of King County, Respondents.

Herbert L. Onstad, Max R. Nicolai, Seattle, for appellant.

Sweet, Wolf & Merrick, John W. Sweet, Seattle, for Tim McCullough, Sheriff.

Charles O. Carroll, V. D. Bradeson, Seattle, for King County et al.

FOSTER, Justice.

Appellants, relators below, were deputies of former King county sheriff Harlan S. Callahan, and appeal from the judgment dismissing their application for a writ of mandate to compel the present sheriff of King county, respondent Tim McCullough, to appoint them as his deputies. 1 Although both alleged appointment by respondent McCullough, no such proof was offered, and the court found they had been appointed deputy sheriffs by former Sheriff Callahan, but not by respondent McCullough. Such findings are accepted as verities because no exception was taken to them.

The decisive issue and the only one requiring discussion is: Does the veterans preference act 2 repeal or modify the statute authorizing the sheriff to appoint deputies who shall serve at his pleasure? 3 The able and experienced trial judge correctly held that it did not.

Both deputies of the former sheriff, who are honorably discharged veterans, rely entirely on State ex rel. Ford v. King County, 47 Wash.2d 911, 290 P.2d 465. That case dealt only with county employees working in a group affording fire and security protection at a county-owned airport and not public officers holding office created by statute and whose duties are defined by law.

The duties of the sheriff are prescribed by Laws of 1891, chapter 45, § 1, p. 83 [Rem. 4157, RCW 36.28.010], set out in the margin. 4 Remington's 4160 3 authorizes the sheriff to appoint deputies and revoke such appointments at will. By law, his deputies likewise possess the same power and may perform the same duties. Rem. 4167 5 [cf. RCW 36.28.020, p1].

The concluding sentence in Rem. 4157 [cf. RCW 36.28.010], relieves the county of liability for the sheriff's acts, and this court held in Carter v. King County, 120 Wash. 536, 208 P. 5, that a deputy sheriff was not a servant of the county. A deputy sheriff is a public officer. Gray v. DeBretton, 192 La. 628, 188 So. 722; Maxwell v. Andrew County, 347 Mo. 156, 146 S.W.2d 621; Scott v. Endicott, 225 Mo.App. 426, 38 S.W.2d 67; Towe v. Yancey County, 224 N.C. 579, 31 S.E.2d 754; Blake v. Allen, 221 N.C. 445, 20 S.E.2d 552; Gowens v. Alamance County, 216 N.C. 107, 3 S.E.2d 339; Borders v. Cline, 212 N.C. 472, 193 S.E. 826; Willis v. Aiken County, 203 S.C. 96, 26 S.E.2d 313; Murray v. State, 125 Tex.Cr.App. 252, 67 S.W.2d 274; Gross v. Gates, 109 Vt. 156, 194 A. 465. In Blackburn v. Brorein, Fla.1954, 70 So.2d 293, the reasons therefor were traced in their historical perspective.

There is, then, a special statute defining the duties of the sheriff and providing that his deputies shall have the same power and perform the same duties. The legislature specifically endowed the sheriff with the power to remove his deputies at will, for it made both the sheriff and the surety on his bond liable for their acts. 6 Appellants do not call attention to a single case in which a veterans preference act has been held to modify or amend a special statute authorizing the sheriff to remove his deputy.

The deputies of the former sheriff who bring this action cannot tie the hands of succeeding sheriffs. If the law requires that officer to assume both the political and financial responsibility for the acts of his deputies, the law-making power acted both justly and wisely in endowing him with the power of appointment and removal. No limitation on that power will be imputed to the legislative branch of the government unless apt terms are employed manifesting such an intention, and surely such an intention cannot be imputed without a corresponding limitation of the sheriff's liability for the acts of his deputies. The supreme court of Florida was recently confronted with a very similar situation. The timely comment of that court in Blackburn v. Brorein, supra, is set out in the margin. 7

This is consonant with the history of the office of sheriff which was interestingly traced by the supreme court of Florida recently (1954) in Blackburn v. Brorein, supra. The leading text states that to be the consensus of judicial opinion. 8 1 Anderson on Sheriffs 76, § 85.

Similar conclusions were reached by the supreme court of Michigan in Abt v. Wilcox, 264 Mich. 183, 249 N.W. 483, and by the supreme court of New Jersey in Ackley v. Norcross, 122 N.J.L. 569, 6 A.2d 721, in both of which honorably discharged veterans claimed the office of deputy sheriff under veterans preference statutes. The opinion of the supreme court of Michigan is particularly important because the words of that statute are identical with the Washington veterans preference statute 'in any public department.' Pub.Acts Mich.1931, No. 67, § 2. 9 In Ackley v. Norcross, supra, it was pointed out that the New Jersey veterans preference statutes were general in character and the sheriff's tenure statute was special in nature and any conflict would be resolved in favor of the special statute. The same is true in Washington. That portion of the opinion of the New Jersey court in this respect is set out in the margin. 10

The judgment appealed from is affirmed.

HILL, C. J., and SCHWELLENBACH, DONWORTH, and ROSELLINI, JJ., concur.

2 'Section 73.16.010 of the Revised Code of Washington derived from section 1 of chapter 84 of the Laws of 1895 as last amended by section 1 of chapter 141 of the Laws of 1943 is hereby amended to read as follows:

'In every public department, and upon all public works of the state, and of any county thereof, honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon shall have been awarded, and their widows, shall be preferred for appointment and employment. Age, loss of limb, or other physical impairment, which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the capacity necessary to discharge the duties of the position involved.' Laws of 1951, chapter 29, § 1, p. 59 [RCW 73.16.010].

3 'Each sheriff may appoint as many deputies as he may think proper, for whose official acts he shall be responsible to the amount of their [his] bond, and may revoke such appointments at his pleasure; and persons may also be deputed by any sheriff in writing to do particular acts; and the sheriff shall be responsible on his official bond for the default or misconduct in office of his deputies.' Rem. 4160, p. 788.

Remington's 4160 is not found in the Revised Code of Washington, although the compilers refer to the law in 36.28.020 and 36.16.070.

4 'The sheriff is the chief executive officer and conservator of the peace of the county. In the execution of his office it is his duty--1. To arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses. 2. To defend his county against those who by riot or otherwise endanger the public peace or safety. 3. To execute the process and orders of the courts of justice or judicial officers, when delivered to him for that purpose, according to the provisions of...

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