State v. Clausen

• Decision Date: 27 November 1928
• Docket Number: 21538.
• Citation: 150 Wash. 20,272 P. 22
• Parties: STATE ex rel. HARTLEY, Governor, etc., v. CLAUSEN et al.
• Court: Washington Supreme Court

272 P. 22

150 Wash. 20

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

No. 21538.

Supreme Court of Washington, En Banc.

November 27, 1928

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

Action by the State, on the relation of Roland H. Hartley, as Governor, and as member of the State Highway Committee, to restrain C. W. Clausen and another, as members of the State Highway Committee, from employing or paying Thomas R. Beeman as secretary and consulting engineer for the State Highway Committee. Judgment dismissing action, and relator appeals. Affirmed.

Tolman J., and Fullerton, C.J., dissenting.

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

John H Dunbar and L. B. Donley, both of Olympia, for respondents.

MAIN J.

As stated when the case was here upon a former appeal, 146 Wash 588, 264 P. 403, this action was brought for the purpose of restraining the majority of the highway committee from employing and paying Thomas R. Beeman as secretary and consulting engineer for the committee. Upon that appeal the judgment was reversed and the cause remanded for trial. The principal question there involved was whether the relator had the right to maintain the action, and it was held that he had such right. Incidentally it was held that the complaint stated a cause of action. As a result of the trial in the superior court after the case went back, a judgment was entered dismissing the action, from which the relator appeals.

It is first contended that the ruling upon the prior appeal is controlling upon this appeal, inasmuch as it was held upon that appeal that the complaint stated a cause of action. There were allegations in the complaint to the effect that the employment of Mr. Beeman had for its purpose the superseding and nullifying of the work of the highway engineer, who is appointed by the Governor. The facts developed upon the trial failed to support this allegation. The employment of Mr. Beeman was not for the purpose, and in fact does not supersede or nullify the work of the regularly appointed highway engineer. If the purpose were to supersede or nullify the work of the highway engineer, an entirely different question would be presented upon which we here express no opinion, because that question is not now before us.

The second question is whether the highway committee has a right to appoint a consulting engineer to advise the members thereof with reference to the feasibility of proposed state roads and the outline and profile maps, plans, and specifications which are prepared by the highway engineer. The highway committee is composed of three state officers, the Governor, the auditor and the treasurer. July 26, 1927, the following resolution was passed by a majority of the committee:

'At a meting of the Highway Committee of the State of Washington held at Olympia, Washington, July 26, 1927, it is resolved that

'Whereas heretofore and on or about May 1st, 1927, the then State Highway Engineer of the State of Washington was summarily removed from such office by the Chief Executive of the State of Washington, and that the said State Highway Engineer was replaced by an inexperienced person, and

'Whereas the said incoming State Highway Engineer has discharged a large number of experienced and competent employees of said department, and

'Whereas other experienced and competent employees have since resigned and the places of such experienced and competent employees have been filled by untried men of limited experience, and

'Whereas the said Highway Committee of the State of Washington is by law made responsible for the expenditure of the Motor Vehicle Fund of $23,362, 360.00, and for the letting of contracts for the improvement, building and maintenance of the various highways of the State of Washington, and

'Whereas the members of said committee are not required by law to be highway engineers and are not qualified as engineers, and

'Whereas the State Highway Committee desires the services of a competent engineer experienced in highway construction to assist and advise the State Highway Committee in the carrying on of its duties and to act as secretary to said committee, and

'Whereas Thomas R. Beeman is such an experienced engineer of wide experience in highway construction, and

'Whereas an emergency exists and has existed at all times since May 1, 1927, and that such emergency requires the employment of such an engineer by said committee, Now, Therefore,

'Be it resolved by the State Highway Committee that the said Thomas R. Beeman be, and is hereby employed as technical engineer advisor and secretary for the Highway Committee of the State of Washington and that his salary for such services be, and the same is hereby fixed at the sum of $5,000.00 per annum, and that an emergency exists, and that the employment of such an engineer is necessary for the carrying out of the duties of the State Highway Committee and the carrying out of the legislative program for the construction, maintenance and operation of the highway system of the State of Washington.'

This resolution was supported by the auditor and treasurer and resisted by the Governor. It is therein provided that Thomas R. Beeman be employed as a technical engineer, adviser, and secretary for the highway committee, and that his salary for such services shall be the sum of $5,000 per annum.

In the case of State ex rel. Clausen v. Hartley, 144 Wash. 135, 257 P. 396, the right of the committee to employ a secretary to keep its records was recognized. Whether the committee acting through a majority of its members has a right to employ a technical engineer to advise the members thereof with reference to the feasibility of proposed state roads and with reference to the outline and profile maps and plans and specifications depends upon whether such authority has been either expressly or impliedly given to the committee by the Legislature. Section 6763, Rem. Comp. Stat., provides:

'Whenever any money is appropriated for the construction of a state road, the state highway commissioner [engineer] shall, unless such road has been theretofore surveyed, cause survey to be made of the entire length of such highway, and cause the same to be mapped both in outline and profile, and shall also cause plans and specifications for the construction of such highway to be prepared. Such maps, plans and specifications shall be thereupon submitted to the state highway board [committee], and no portion of any appropriation shall be expended upon such road until the state highway board [committee] shall have declared such road feasible and shall have approved said outline and profile maps and said plans and specifications.'

This section defines the duties of the highway engineer and also of the highway committee. It is there expressly made the duty of the committee to determine the feasibility of a proposed state road and to approve 'outline and profile maps and plans and specifications.' There is no express authority given in the statute to the committee to employ a consulting engineer to advise it with reference to the matters which the statute makes it the duty of the committee to pass upon. The question then arises whether there is implied authority. It is a well-recognized rule of law that, if a board is charged with a specific duty and the means by which the duty is to be accomplished are not specified or provided for, the board so charged has the implied power to use such means as are reasonably necessary to the successful performance of the required duty. In State ex rel. State Board, etc., v. Clausen, 84 Wash. 279, 146 P. 630, it is said:

'In other words, if a person or board is charged by law with a specific duty, and the means by which the duty is to be accomplished are not specially provided for, the person or board so charged has the implied power to use such means as are reasonably necessary to the successful performance of the required duty, which in the present case might include the power to employ private counsel. But where a person or board is charged by law with a specific duty, and the means for its performance are appointed by law, there is no room for implied powers, and the means appointed must be followed, however inadequate may be the result.'

The statute above quoted, as stated, places upon the highway committee the specific duty of passing upon the feasibility of state roads and the plans and specifications therefor. The members of the committee are not technical highway engineers and are not by law required to be such. In order to perform the duties required by the statute, technical information is necessary. It would seem plain that the committee has the implied power to employ such assistance as may be necessary to enable it to perform the specific duty which is imposed upon it by the statute. The case of Young v. State, 19 Wash. 634, 54 P. 36, differs from the one now before us in this. There there was no constitutional or statutory provision which either expressly or by necessary implication authorized the Governor to employ expert assistance for the purpose of investigating the books and accounts of the state penitentiary, while here, as stated, there is necessarily the implied authority for the committee to employ such assistance as may be necessary to enable it to perform the duties imposed upon it by law. In that case the rule with reference to implied authority is recognized, but was held not to apply for the reasons stated. In the cases of Ritchie v. State, 42 Wash. 653, 85 P. 417, and State ex rel. Port of Seattle v. Superior Court, 93 Wash. 267, 160 P. 755, L. R. A. 1917B, 354, the rule is also recognized, but owing to the particular facts of those cases was not applied. We do not...