State v. Asotin County

• Decision Date: 18 May 1914
• Docket Number: 11,430.
• Citation: 140 P. 914,79 Wash. 634
• Parties: STATE v. ASOTIN COUNTY.
• Court: Washington Supreme Court

140 P. 914

79 Wash. 634

STATE v. ASOTIN COUNTY.

No. 11,430.

Supreme Court of Washington

May 18, 1914

Department 1. Appeal from Superior Court, Asotin County; Chester F Miller, Judge.

Action by the State of Washington against Asotin County. Judgment for defendant, and plaintiff appeals. Remanded for further proceedings.

W. V Tanner and R. E. Campbell, both of Olympia, for appellant.

J. C Applewhite, of Clarkston, and Sturdevant & Baily, of Asotin, for the State.

MAIN J.

The state of Washington brought this action for the purpose of recovering from Asotin county a sum of money alleged to be due from it and payable into the horticultural fund of the state. The amended complaint, omitting the formal parts, alleged as follows:

'That between the 1st day of July and the 1st day of September, in the years 1909, 1910, and 1911, the horticultural inspector for horticultural district No. 12 certified to the county auditor of Asotin county, as provided in chapter 135 of the Session Laws of 1909, statements showing the expense of his office with respect to the work done under the provisions of said act in said county during each previous year or part thereof.

'That, according to the statement so filed with the auditor of Asotin county, between the 1st day of July, 1909, and the 1st day of September, 1909, there was expended in said county during the months of May, June, July, and August of said year, for the purpose of carrying out the provisions of said horticultural act, the sum of four hundred fifty-two and 06/100 ($452.06) dollars.

'That, according to the statement so filed with the county auditor of Asotin county, between the 1st day of July, 1910, and the 1st day of September, 1910, there was expended in said county during the months of January, February, March, April, May, June, July, and August of said year, for the purpose of carrying out the provisions of said horticultural act in said county, the sum of four hundred ninety and 47/100 ($490.47) dollars.

'That, according to the statement so filed with the county auditor of Asotin county, between the 1st day of July, 1911, and the 1st day of September, 1911, there was expended in said county during the months of January, February, March, April, May, June, July, and August of said year, for the purpose of carrying out the provisions of said horticultural act in said county, the sum of eight hundred twenty-four and 29/100 ($824.29) dollars.

'That the total amount expended in said county of Asotin during the years of 1909, 1910, and 1911, in carrying out the provisions of said horticultural act in said county, and which has been certified to the county auditor of said county, as heretofore alleged, and as provided in chapter 135 of the Session Laws of 1909, amounts to one thousand seven hundred sixty-six and 82/100 ($1,766.82) dollars.

'That said amount so expended is now due and payable by said county of Asotin to the state of Washington, to be placed in the horticultural fund of the state, as provided in chapter 43 of the Session Laws of 1911.

'That said amount or no part thereof has been paid to the state of Washington, or has been paid into the horticultural fund of the state of Washington, or into the district horticultural fund of district No. 12.'

To this amended complaint, a demurrer was interposed and sustained. The plaintiff elected to stand upon its amended complaint, and refused to plead further. Judgment was entered dismissing the action, from which the present appeal is prosecuted.

The ultimate question to be determined is whether the state can maintain such an action as this against the county. The respondent, in support of the correctness of the judgment of the superior court, in its brief, makes the following contentions: First, that the state is not authorized to maintain the action; second, that chapter 43 of the Laws of 1911 violates the provision of the Constitution which requires that no bill shall embrace more than one subject, and that shall be expressed in its title; third, that the terms 'assessed or levied,' as used in chapter 43 of the Laws of 1911, cannot be given effect; and, fourth, that the state's appropriate remedy was by mandamus to compel the officers of the county to levy the tax necessary to meet the horticultural inspection expenses in the county.

I. First, then, is the state clothed with power to institute and maintain the present action? At the legislative session for the year 1909, an act was passed entitled 'An act relating to horticulture and prescribing penalties for the violation thereof and declaring an emergency.' Laws of 1909, c. 135, p. 495. This act created the office of state commissioner of horticulture, provided for the appointment of a deputy and district inspectors, and defined their respective duties. By section 14 the state is divided into 15 horticultural districts. District 12 is comprised of Whitman and Asotin counties. Section 63 provides that the district horticultural inspectors shall furnish to the county auditor of each county included in their respective districts a statement showing the expenses of their office with respect to the work done under the provisions of the act in each county. By section 64 it is made the duty of the board of county commissioners, at the time of making the regular annual tax levy in each year, to include and levy a tax upon the taxable property of the county in such amount as may be necessary on account of the horticultural inspection, this tax to be levied and collected in the same manner as other taxes, and upon its collection the same to be turned over to the state treasurer for the benefit of the 'district horticultural fund.'

In the year 1911 the Legislature passed an act entitled 'An act relating to salaries and expenses of horticultural inspectors, making an appropriation therefor, and declaring an emergency.' Laws of 1911, c. 43, p. 141. Section 3 of this act provides that the county treasurers of the several counties shall remit to the state treasurer the amount assessed against the counties for purposes of horticultural inspection, and shall pay to the state treasurer such amounts as were then due and owing, or should thereafter become due and payable to the state treasurer. Section 4 provides: 'The Attorney General of the state of Washington is hereby instructed to bring an action against any county or counties which have failed to pay the amount assessed or levied against said counties by horticultural inspectors for said horticultural purposes.'

Asotin county failed to make the levy as required by the act of 1909. Consequently no remission to the state treasurer from that county was made as required by the act of 1911. The purpose of the present action was to recover a judgment against the county for the amount of the expenses which had been incurred by the district inspectors in that county, and which had not been paid into the state treasury.

It is argued that the state cannot maintain this action because the Legislature has not authorized it. Section 4 of the act of 1911, above quoted, instructs the Attorney General to bring the action. But it is claimed that, since the statute does not specify that it shall be brought in the name of the state, it cannot be so brought. This contention cannot be sustained. By section 1 of article 3 of the Constitution the Attorney General is made one of the executive officers of the state. By section 21 of this article it is provided that he shall be the legal adviser of state officers, and shall perform such other duties as may be prescribed by law. The function of this officer is to represent the state in legal matters and proceedings. When the Legislature directed him to bring an action against any county or counties for the purpose of collecting moneys which, by section 3 of the act were made due and payable to the state treasurer, it was certainly contemplated that such action would be...