State v. Miller

• Decision Date: 08 October 1919
• Docket Number: 15368.
• Citation: 184 P. 352,108 Wash. 390
• Court: Washington Supreme Court
• Parties: STATE ex rel. McMILLAN v. MILLER, County Auditor.

184 P. 352

108 Wash. 390

STATE ex rel. McMILLAN v. MILLER, County Auditor.

No. 15368.

Supreme Court of Washington

October 8, 1919

Department 2.

Appeal from Superior Court, Whatcom County; Ed. E. Hardin, Judge.

Mandamus by the State of Washington, on the relation of J. B McMillan, against James A. Miller, as Auditor of Whatcom County. From the judgment, relator and defendant both appeal. Affirmed.

Walter B. Whitcomb, of Bellingham, for appellant.

Loomis Baldrey and Frank W. Radley, both of Bellingham, for respondent.

PARKER J.

The relator, McMillan, commenced this action in the superior court for Whatcom county seeking a writ of mandate to compel the auditor of that county to issue to him a warrant in compliance with an order of allowance made by the board of county commissioners for a balance of $3,050 claimed to be due him for services rendered as county commissioner during the period of approximately four years from January, 1915, to October, 1918, inclusive. The superior court awarded recovery to McMillan in the sum of $2,400 and caused to be issued its writ of mandate directing the county auditor to issue a warrant accordingly. The court rested its judgment upon the theory that all but $2,400 of McMillan's claim was, at the time of its allowance by the board and at the time of the commencement of this action barred by the three-year statute of limitations. From this disposition of the cause McMillan has appealed, contending that no part of his claim was barred at the time of its allowance by the board and the commencement of this action. The auditor has also appealed, contending that the two-year statute of limitation is controlling in this case, and that all of that portion of McMillan's claim accruing more than two years prior to its allowance by the board and commencement of this action is barred.

The controlling facts are not in dispute and may be summarized as follows: From January 11, 1915, until the commencement of this action in the superior court on December 3, 1918 McMillan was a duly elected, qualified, and acting commissioner of Whatcom county. That county was at all the times in question a county of the fifth class, and it is here conceded by counsel on both sides that McMillan was entitled to receive for his services as such commissioner compensation payable by the county at the rate of $1,800 per year as provided by section 4037, Rem. Code. For services rendered by McMillan as commissioner during each of the months from January, 1915, to October, 1918, he was, between the 1st and 7th days of each of the following months, respectively--and we assume on the first Mondays thereof--paid for such services upon a per diem basis sums averaging $83.33 for each of such previous month's services. During his three years' service from November, 1915, to October, 1918, inclusive, he was so paid for eleven months' services in each of those years $85 per month and for one month's service in each of those years $65 per month, which, it will be noticed, resulted in his receiving $1,000 for services rendered in each of those three years, being $800 less than he was in law entitled to in each of those years. He was paid in substantially the same manner as to times and amounts of payments for the portion of the period here in question, from January to October, inclusive, in the year 1915. McMillan was so paid for his services as commissioner because of what is here conceded to be a mistake of law on the part of the county officers, including himself, that a county commissioner of Whatcom county was entitled to receive compensation at the rate of $5 per day for services actually rendered and in no event to exceed $1,000 in any one year. On December 2, 1918, McMillan filed with the board of county commissioners his claim for a balance of $3,050, claimed to be due him for services rendered by him as commissioner for the whole period of approximately four years here in question. The claim being allowed by the board and the auditor having refused to issue a warrant in payment thereof as ordered by the board, this action was commenced by McMillan on December 3, 1918.

The only provisions of our statutes of limitation which could have any application here are, referring to sections of Rem. Code, the following:

'Sec. 155. * * * Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued. * * *

'Sec. 159. Within three years, * * * (3) An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument. * * *

'Sec. 165. * * * An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.'

We shall first determine whether the two-year statute or the three-year statute is controlling as to the limit of time within which McMillan was required to seek recovery in court of his compensation following the accrual of his cause or causes of action therefor. This question arises upon the contention here made on behalf of the auditor that the trial court erred to the prejudice of the county in awarding McMillan the whole of the unpaid portion of his compensation at $800 per year for the three-year period from November, 1915, to October, 1918, inclusive. This contention is rested upon the theory that the obligation on the part of the county to pay McMillan compensation for his services as commissioner, even after the rendering of such services, is not contractual in its nature, either express or implied, and that therefore the two-year statute is controlling. Assuming, then, for argument's sake, that the words 'contract or liability, express or implied,' found in the three-year statute above quoted, refers exclusively to contractual liabilities, our problem is reduced in its last analysis to the question of whether or not the obligation of the county to pay McMillan for his services, after their rendition, became contractual in its nature. Plainly, if such be the nature of the obligation the three-year statute is controlling in this case, while if the obligation is not contractual in its nature the two-year statute is controlling. Counsel for the auditor invoke the general rule that the election or appointment of a public officer does not create any contractual relationship between such officer and the state, county, or municipality under which he holds his office. While this is a well-established rule of law by all of the authorities in so far as they have come to our notice, it seems to be equally well established by no less an authority than the Supreme Court of the United States that upon the rendition of services by a public officer, for which services compensation has been, prior to the rendition thereof, fixed by or in pursuance of law and so fixed remains unchanged during the whole of the period during which such services are rendered, there does arise an implied obligation of a contractual nature on the part of such state, county, or municipality to pay for such services at the rate of compensation so fixed, in the sense that such obligation cannot be impaired without violating the guaranty of section 10, art. 1, of the Constitution of the United States that 'no state shall * * * pass any * * * law impairing the obligation of contracts. * * *'

In the case of State of Louisiana ex rel. Fisk v. Police Jury, 116 U.S. 131, 6 S.Ct. 329, 29 L.Ed. 587, the Supreme Court of the United States, having under consideration the claimed right of Fisk, a district attorney of the state, to have levied a tax by the police jury (which was the parish tax-levying body corresponding to our county commissioners) to pay a judgment rendered in his favor in the state court for compensation due him from the parish, to which he was entitled under the laws of the state in force at the time of the rendition of his services, which obligation on the part of the parish was in effect impaired by a subsequent amendment to the Constitution of the state in that the tax-levying powers of the police jury were so impaired as to in effect prevent raising sufficient funds, as it was claimed, to pay such judgment; and the courts of the state for that reason having denied to Fisk the relief prayed for as against the police jury and the parish, Justice Miller, speaking for the Supreme Court of the United States--the cause being in that court on writ of error to the Supreme Court of the State of Louisiana--said:

'In answer to the argument that, as applied to plaintiff's case, the constitutional provision impaired the obligation of his contract, the Supreme Court decided that his employment as attorney for the parish did not constitute a contract, either in reference to his regular salary or to his compensation by fees. And this question is the only one discussed in the opinion, and on that ground the decision rested.

'It seems to us that the Supreme Court confounded two very different things in their discussion of this question.

'We do not assert the proposition that a person elected to an office for a definite term has any such contract with the government or with the appointing body as to prevent the Legislature or other proper authority from abolishing the office or diminishing its duration or removing him from office. So, though when appointed the law has provided a fixed compensation for his services, there is no

...