State v. Clausen

• Decision Date: 19 November 1906
• Parties: STATE ex rel. GILLETTE v. CLAUSEN, State Auditor.
• Court: Washington Supreme Court

87 P. 498

44 Wash. 437

STATE ex rel. GILLETTE v. CLAUSEN, State Auditor.

Supreme Court of Washington

November 19, 1906

Mandamus by the state on relation of H. P. Gillette against C. W Clausen, State Auditor. Petition granted.

Fullerton J. dissenting in part.

H. A Fairchild, for petitioner.

John D Atkinson, Atty. Gen., for respondent.

RUDKIN J.

The petition for the writ avers in substance, that the petitioner is and for many years last past has been engaged as an expert in ascertaining the cost of construction and cost of duplication of railroads and public works, and is and for many years last past has been a qualified expert in ascertaining the cost of construction of railroads and other public works; that the railroad commission of this state, at a regular meeting, duly hired and employed the petitioner to inspect the railroads constructed within the state, and to assist the commission in ascertaining the amount of money expended in the construction and equipment per mile of each and all of said railroads, and then and there agreed to pay the petitioner, from the appropriation provided in the act creating the railroad commission, a salary of $1,000 per month, and necessary traveling expenses while engaged upon the discharge of his duties, the petitioner to have full charge and direction of the entire work connected therewith, subject to the approval of the commission; that there are approximately 3,700 miles of railroad and side tracks within the state, and the work connected therewith will necessitate the employment of many engineers and accountants, and the examining and experting of maps, profiles, books, and records of all of said railroads, together with an examination and survey of the tracks and lines, and requires knowledge and skill of a high degree in order to comply with the provisions of said act; that in pursuance of said contract of employment the petitioner duly qualified and entered upon the discharge of his duties on the 21st day of July, 1906, and remained continuously therein until the 1st day of September, 1906, and is still so employed; that at a regular meeting of the railroad commission held on the 1st day of September, 1906, said commission duly examined, audited, and allowed the petitioner's claim for salary up to said date, under said contract of employment, amounting in all to the sum of $1,364, and the chairman of said commission certified the same to be correct; that said claim was thereupon presented to the respondent as State Auditor, but the respondent rejected the same, and refused to draw his warrant on the Treasurer for the amount thereof; that the petitioner is the owner and holder of said claim, is the party beneficially interested therein, and has no plain, speedy, or adequate remedy at law. The answer or return of the State Auditor admits the contract of employment as set forth in the petition, but avers that the terms of the contract are unreasonable and excessive; denies that the railroad commission had any power or authority in law to audit or allow the claim; admits that the claim was presented as alleged and by him rejected, and avers by way of an affirmative defense that the respondent deemed the claim unreasonable and excessive and not a valid claim against the state, wherefore, he rejected and disallowed the same. The issues thus presented involve in a measure the powers of the railroad commission and the functions of the State Auditor.

Section 2 of the Railroad Commission Act, Laws of 1905, p. 145, c. 81, provides that 'said commission may appoint a secretary at a salary of not more than two thousand dollars per annum, and may appoint such clerks as may be necessary, not to exceed three in number at a salary not to exceed twelve hundred dollars per annum each, and such other persons as experts as may be necessary to perform the duties that may be required of them by said act.' Section 12 provides that 'the commission shall ascertain as early as practicable the amount of money expended in the construction and equipment per mile of every railway in Washington. The commission may also ascertain the amounts paid for salaries to the officers of the railroad and express companies and the wages paid to employes. For the purposes in this section named, the commission may employ sworn experts to inspect and insist them when needed, and from time to time, as the information required by this section is obtained, it shall communicate the same to the Attorney General by report, and file a duplicate thereof with the Secretary of State for public use and said information shall be printed from time to time in the annual report of said commission.' The foregoing statutory provisions authorize the contract of employment set forth in the petition. As said by the court in McCluskey v. Cromwell, 11 N.Y. 593, 'to employ, is 'to engage in one's service; to use as an agent or substitute in transacting business; to commission or entrust with the management of one's affairs'; and when used in respect to a servant or hired laborer is equivalent to hiring, which implies a request, and a contract for a compensation, and has but this one meaning in the ordinary affairs and business of life.' Under section 2, supra, the commission clearly has authority to fix the compensation of its secretary and clerks, within the limits imposed by the statute, and we think the same power exists as to the experts provided for in sections 2 and 12 of the act. It is scarcely to be supposed that one whose compensation is measured by no fixed rules would voluntarily enter the employ of the state, and leave the question of his compensation to the discretion of the State Auditor or to the uncertainty of litigation after his contract of service was completed, and we do not think that the Legislature so intended. On the other hand, it would seem to be in the interest of the state and in consonance with sound business principles to know the extent of the state's liability before the indebtedness against it becomes an established fact. For these reasons, we are of the opinion that the contract out of which this controversy arose is a binding obligation of the state, and as such is governed by the same rules as any other contract. 'There is not one law for the sovereign and another for the subject, but when the sovereign engages in business and the conduct of business enterprises, and contracts with individuals, although an action may not lie against the sovereign for a breach of the contract whenever the contract in any form comes before the courts, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon equality before the law, and the sovereign is merged in the dealer, contractor and suitor.' People v. Stephens, 71 N.Y. 549. Of course, like any other contract, the contract of the state may be impeached for fraud, but no such question is presented by the answer before us. True, the answer avers that the compensation agreed upon was unreasonable and excessive, but, in the absence of fraud, the railroad commission is the sole judge of that question. So long as the Legislature keeps within the Constitution, and the officers charged with the administration of the law keep within the statute, the State Auditor and the courts have no concern with the policy of the law or the methods employed in its administration.

The petitioner contends that the State Auditor acted in a purely ministerial capacity in drawing...