State v. Pape

• Decision Date: 03 August 1918
• Docket Number: 14892.
• Citation: 103 Wash. 319,174 P. 468
• Court: Washington Supreme Court
• Parties: STATE ex rel. SHERMAN, State Treasurer, v. PAPE, State Forester and Fire Warden.

174 P. 468

103 Wash. 319

STATE ex rel. SHERMAN, State Treasurer, v. PAPE, State Forester and Fire Warden.

No. 14892.

Supreme Court of Washington

August 3, 1918

Department 2. Mendamus by the State of Washington, on the relation of W W. Sherman, State Treasurer, against F. E. Pape, State Forester and Fire Warden. Writ denied.

W. V Tanner, Atty. Gen., and Glenn J. Fairbrook, of Olympia, for relator.

HOLCOMB J.

This is an original application for mandate to compel the respondent to pay into the state treasury funds aggregating $6,987.63 assessed and charged by the respondent against private forest land owners for fire protection during the year 1917.

It is alleged that, pursuant to section 2, c. 105, Laws 1917 during the year 1917 respondent contracted with divers persons for the patrolling and protection from fire of certain forest property subject to protection in the manner provided in the act, and thereafter received from the owners of such property, and from the treasurers of the counties to which such sums had been reported by the respondent and upon the tax rolls of which such amounts had been extended by the county assessors pursuant to law, the sum so stated; that respondent had refused and still refuses to pay the moneys into the treasury of the state of Washington and threatens to, and will unless compelled by the court to pay the moneys into the treasury of the state, apply the same in payment of the sums due upon contract for patrolling and fire protection.

Section 2 of the act above mentioned reads, in part:

'Any amounts paid or contracted to be paid by the state forester for this purpose [fire protection] shall be a lien upon the property patrolled and protected, and, unless reimbursed by the owner * * *' shall be reported to the assessors and extended upon the tax rolls. 'The procedure provided by law for the collection of taxes and delinquent taxes shall be applicable thereto, and upon the collection thereof the county officials shall repay said amounts to the state forester to be applied to the expenses incurred in carrying out the provisions of this section.'

The theory of the relator, supported by the Attorney General, is that chapter 105, relating to the funds in question and the duties of the state forester and fire warden, provides no method of accounting under which the state forester shall administer the funds; that he is not directed to make any disbursements, and he is not required to give any bond to assure his faithful administration of the fund; that in fact no law of the state relating to the state forester required him to give any sort of bond. It is therefore contended that these provisions do not create a trust fund which may be retained by the state forester without being deposited in the state treasury and paid out at his own instance without an appropriation, but that the moneys so remitted to him must be deposited in the state treasury and not disbursed except in pursuance of an appropriation by the Legislature. They cite the following provisions of the state Constitution as controlling:

Article 7, § 6: 'All taxes levied and collected for state purposes shall be paid in money only into the state treasury.'

Article 8, § 4: 'No moneys shall ever be paid out of the treasury of this state, or any of its funds or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years from the first day of May next after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.'

Article 11, § 15: 'All moneys, assessments and taxes belonging to or collected for the use of any county, city, town, or other public or municipal corporation, coming into the hands of any officer thereof, shall immediately be deposited with the treasurer, or other legal depositary, to the credit of such city, town, or other corporation respectively, for the benefit of the funds to which they belong.'

Relator therefore argues that it is the manifest intention of the constitutional provisions that all moneys collected by the state for any purpose are required to be paid into the state treasury and disbursed only in pursuance of an appropriation by the Legislature, although moneys collected under same particular statute may not be what could technically be called funds belonging to the state. The relator lays stress upon the fact that section 2 of the act uses the word 'reimburse' in referring to the amount incurred for protection of particular owners incurred for prouses the word 'repay' in speaking of the amounts collected by the assessors. He therefore urges that these provisions indicate that the intent of the act was that the Legislature should make an appropriation of the amounts to be so collected to the expenses incurred by making a blanket appropriation in the appropriation bill, rather than expressing any intent that the amounts should constitute a trust fund. The theory of the relator is based upon the premise that the funds provided for in this act are state or public funds, and therefore controlled by the constitutional provisions relating to the deposit and appropriation thereof. If the premise is incorrect, the deductions necessarily fall.

In State ex rel. Johnson v. Clausen, 51 Wash. 548, 99 P. 743, we had under consideration the question of whether moneys received by the treasurer of the board of regents of the State College of Washington, from students' fees and rents and sources other than the general and state governments, were to be considered as part of the 'state finances' and to be paid over by the treasurer of the board of regents to the state treasurer, within the meaning of an act of 1907, page 179, entitled 'An act relative to the finances of the state,' etc., providing that each state officer or other officer authorized to collect moneys belonging to the state, or any institution thereof, shall each day transfer all moneys to the state treasurer. It was there held that moneys so received were not 'state finances' under the act in question, although the State College of Washington was a state institution, The constitutional provisions relied on in this case were not discussed in that case and apparently not raised. If however, the premise on which relator relies in this case, namely, that the funds in question are public funds or...