State v. Clausen

• Citation: 146 Wash. 588,264 P. 403
• Decision Date: 15 February 1928
• Docket Number: 20932.
• Parties: STATE ex rel. HARTLEY, Governor, v. CLAUSEN et al.
• Court: Washington Supreme Court

264 P. 403

146 Wash. 588

STATE ex rel. HARTLEY, Governor, v. CLAUSEN et al.

No. 20932.

Supreme Court of Washington, En Banc.

February 15, 1928

Appeal from Superior Court, Thurston County; Wright, Judge.

Action by the State of Washington, on the relation of Roland H Hartley, as Governor of the State of Washington and as a member of the State Highway Committee, to restrain C. W Clausen and another, as members of the State Highway Committee, and others, from employing Thomas R. Beeman as secretary and consulting engineer to the State Highway Committee. From a judgment dismissing the action, relator appeals. Reversed, with instructions.

E. H Guie, of Seattle, and Coleman & Fogarty, of Everett, for appellant.

John H. Dunbar, of Olympia, for respondents.

FRENCH J.

The relator instituted this action against C. W. Clausen and W. G. Potts, as members of the state highway committee, and in their respective capacities as state auditor and state treasurer, for the purpose of restraining them from employing and paying the respondent Beeman as a secretary and consulting engineer to the state highway committee. A demurrer was interposed to this complaint on the ground that the relator had no legal capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer being sustained by the lower court, and the relator having elected to stand upon his complaint, a judgment of dismissal was entered, from which this appeal is taken.

It is the contention of respondents that the only person authorized to institute an action to restrain the unlawful expenditure of state funds is the Attorney General. Our first case touching on this subject is Jones v. Reed, 3 Wash. 57, 27 P. 1067, a suit by Jones, a citizen and taxpayer of the state of Washington, against the state auditor and other state officers to enjoin the misapplication of certain funds appropriated by the Legislature. The rule laid down there is:

'This court, untrammeled by precedent or authority in laying down a policy for this state, deems it safer to relegate the instituting of suits involving the disposition of the revenue of the state, where no private interests are involved, to the judgment and discretion of the Attorney General.'

Again, in the case of State ex rel. Pierce County v. Superior Court, 86 Wash. 685, 151 P. 108, where an action was commenced by a taxpayer against certain state officials for the purpose of declaring void a certain contract entered into relative to the expenditure of certain state funds, this court said:

'Again, it is a settled principle in this state that a taxpayer, as such, cannot maintain an action against the state or any of its officers to prevent the misappropriation of public moneys, but that this power rests alone with the Attorney General. This we first held in the early case of Jones v. Reed, 3 Wash. 57, 27 P. 1067, and have reaffirmed in the cases of Birmingham v. Cheetham, 19 Wash. 657, 54 P. 37; Tacoma v. Bridges, 25 Wash. 221, 65 P. 186; and Bilger v. State, 63 Wash. 457, 116 P. 19.'

Our last expression of opinion on this subject appears in State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433, 249 P. 996, where this court said:

'The next objection presented to the action is that the Attorney General is not a proper party to institute and maintain it. In Jones v. Reed, 3 Wash. 57, 27 P 1067, it was held that the Attorney General was the proper party to enjoin the misapplication of funds appropriated by the Legislature for the purpose of establishing an agricultural school, and that that officer was the only one who could maintain such action. In State ex rel. Attorney General v. Seattle Gas & Electric Co., 28 Wash. 488, 68 P. 946, 70 P. 114, it was held that the Attorney General was not a proper party to maintain a quo warranto proceeding to inquire into the wrongful exercise of a franchise granted by a municipality. It was there held that the Attorney General did not have common law powers and had no authority to institute an action concerning merely a local question which did not affect generally the citizens of the State, and it was also pointed out that the prosecuting attorneys of the several counties were given the power expressly to institute such proceedings. In Jones v. Reed, supra, and State ex rel. Pierce County v. Superior Court, 86 Wash. 685, 151 P. 108, this court held that the Attorney General is the only party who under the law can maintain an action to prevent public funds being improperly used. It would seem that, if the Attorney General is the only proper party to prevent the misappropriation on public funds, he should be a proper party to compel their proper use. If this is not so there would be no one empowered to institute an action to compel state officials to use appropriated funds in the manner directed by the state Legislature.

'Under Rem. Comp. Stat. § 112 (P. C. § 6579), it is made the duty of the Attorney General to institute and prosecute actions which may be necessary in the execution of the duties of any state officer, and it having been made the duty of the respondents by chapter 82 of the Laws of 1925, p. 95, to levy certain taxes, it would seem to follow that it was the duty of the Attorney General to institute and prosecute such action as may be necessary to see that those duties were properly performed. Furthermore, Rem. Comp. Stat. § 11032 (P. C. § 1937), makes it the duty of the Attorney General to enforce the proper application of funds appropriated to the public institutions of the state. The educational institutions are public institutions of the state, and although the funds here may not strictly be said to have been appropriated, yet that word as used in this section should not be given that narrow and restricted meaning, but the intent of the act

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