State v. Clausen

• Citation: 51 Wash. 548,99 P. 743
• Parties: STATE ex rel. JOHNSON et al., Board of Regents, v. CLAUSEN, State Auditor.
• Decision Date: 04 February 1909
• Court: United States State Supreme Court of Washington

99 P. 743

51 Wash. 548

STATE ex rel. JOHNSON et al., Board of Regents, v. CLAUSEN, State Auditor.

Supreme Court of Washington

February 4, 1909

Original application by the State of Washington, on the relation of Lee A. Johnson and others, constituting the Board of Regents of the State College of Washington, for a writ of mandamus to be directed to C. W. Clausen, State Auditor. Writ issued.

Wm. Manier, for respondent.

GOSE J.

This is a petition for a peremptory writ of mandamus against the respondent, as auditor of the state, commanding him to draw against the state treasurer two warrants, in the sum of $1,000 each, in favor of Frank J. Barnard, treasurer of the board of regents of the State College of Washington, and a warrant in favor of J. B. Duthie in the sum of $21.85. The State College of Washington is an institution of learning located within this state, created and existing under and by virtue of the laws of the state. It has a board of regents consisting of five members, one of whom, Frank J. Barnard, is its treasurer. The board consists of Lee A. Johnson, J. J Browne, Peter McGregor, Frank J. Barnard, and J. A. Anderson. The income of the college is derived in part from the general and state governments, in part from the students for rent, and in part from the sale of its agricultural products. During the year 1908, the treasurer of the board received from sources other than the general and state governments the sum of $7,493.75. Said sum was deposited with the state treasurer by the treasurer of the board, under the belief that he was required to do so.

Said sum is now on deposit with the state treasurer. Thereafter it became necessary to make certain improvements and disbursements and pay certain running expenses, and the board appropriated by two separate resolutions the sum of $2,000 therefor. Each resolution appropriated the sum of $1,000 from the amount theretofore deposited with the state treasurer. A proper demand was made upon the state auditor to issue warrants drawn against such fund, for such sums respectively in favor of the treasurer of the board. At the same time and by a separate resolution, such board appropriated out of said money so deposited the sum of $21.85, to pay for merchandise furnished the board for the use of the college. A demand was made upon the auditor to draw a warrant therefor in favor of J. B. Duthie, the creditor party. These several demands were refused. The board has not sufficient funds aside from said deposit to pay the necessary running expenses of the college. There are more than 1,200 students attending the institution. It will probably be necessary to close the college unless said fund can be withdrawn for use by the board. A demand was made upon the state treasurer to pay said sums, but he refused payment except upon a warrant drawn by the respondent. The respondent interposed a general demurrer to the petition. The only question presented for determination is the sufficiency of the complaint, and whether it warrants the relief sought.

The lawmaking body of the state in 1891 (Sess. Laws 1891, p. 334 et seq., c. 145) enacted a law entitled 'An act to provide for the location and maintenance of the agricultural college, experiment station and school of science of the state of Washington.' The name of the institution was later changed to the 'State College of Washington.' Laws 1905, p. 83, c. 53. The applicable part of section 1 of such act is as follows: 'There is hereby established an institution of learning to be known as the agricultural college, experiment station and school of science of the state of Washington.' Under section 2 of the act it is 'open to the children of all residents of the state, and to such other persons as the board of regents may determine, under such rules of regulation and terms as may be prescribed by said board of regents.' Ballinger's Ann. Codes & St. § 2512 (Pierce's Code, § 7432). Other applicable Code provisions are as follows: Section 2516 (section 7436) provides that the management of the college, the care and preservation of all property of which it shall become possessed, the erection and construction of all necessary buildings, the disbursements and expenditure of all money, shall be vested in a board of five regents to be appointed by the Governor by and with the consent of the Senate, and that each regent, before entering upon the discharge of the duties of his office, shall give a bond in the sum of not less than $5,000 conditioned for the faithful performance of official duties. Section 2517 (section 7437) provides: That the board of regents shall meet and organize by electing a president and treasurer from their own number; that the treasurer shall, before entering upon the discharge of his duties as such, execute a good and sufficient bond to the state, with two or more sufficient sureties, in the penal sum of not less than $40,000, conditioned for the faithful performance of official duties, and to be approved by the Governor. Section 2518 (section 7438) makes the treasurer the financial officer of the board and requires him to keep a true account of all moneys received and expended by him. Section 2520 (section 7440) provides that 'the board of regents shall direct the disposition of any moneys belonging to or appropriated by' the college. Section 2527 (sction 7447) requires the treasurer of the board to make disbursements of the funds in his hands upon the order of the board when countersigned by the secretary. Section 2513 (section 7433) provides: 'The Governor of the state of Washington, superintendent of public instruction, members of the Legislature and county commissioners, shall be ex-officio visitors of said college.'

The respondent contends that, under the law of 1907 (Laws 1907, pp. 179, 180, c. 96), it was his duty to refuse the requisition made upon him by the board of regents and its treasurer. In passing upon the demurrer it will therefore devolve upon us to consider the act, its relation to the former laws of the state, and the respective duties of the parties under such statutes. The act of 1907 is entitled 'An act relative to the finances of the state of Washington and providing the time when and manner in which moneys shall be paid into the state treasury.' The part of the act which the respondent treats as applicable to the issue is as follows: 'Section 1. That it shall be the duty of each state officer or other person (other than county treasurers) who is authorized by law to collect or receive moneys belonging to the state or to any department or institution thereof, to transmit to the treasurer of the state each day, all moneys collected by him on the proceding day, together with a statement of the source from which each item of said money was derived and to transmit to the state auditor a duplicate of said statement.' The purpose of this act is clearly defined in its title, viz., that it was intended to apply to 'the finances of the state.' It contains no repealing clause. In accordance with his construction of this act, the treasurer of the board of regents paid certain money to the state treasurer. It is urged by the relators that the act has no application to the funds of the state college. The first contention of the respondent, that the college is a state institution, may be conceded under the rule announced in the following cases: Estate of Royer, 123 Cal. 614, 56 P. 461, 44 L. R. A. 364; Thomas v. Industrial University, 71 Ill. 310; Tucker v. Pollock, 21 R.I. 317, 43 A. 369; Neil v. Board of Trustees,

31 Ohio St. 17; State v. Railroad, 51 Miss. 361. The respondent next directs our attention to Ballinger's Ann. Codes & St. § 755 (Pierce's Code, § 8485) by which it is made the duty of the state treasurer 'to receive and keep all moneys of the state not expressly required by law to be received and kept by some other person.' We do not see the applicability of this statute.

The important question is: Do the words in the act of 1907 heretofore quoted, 'or to any department or institution thereof,' include moneys of the state college, as set forth in its petition? The obvious purpose of the act was to daily place in the hands of the state treasurer the 'finances' of the state. The finances of the state in its broadest sense, would probably include the money deposited by the college with the state treasurer. A reading of this act in connection with the then...