State v. State Bd. of Equalization, 20248.

CourtUnited States State Supreme Court of Washington
Citation249 P. 996,140 Wash. 433
Docket Number20248.
PartiesSTATE ex rel. DUNBAR, Atty. Gen., v. STATE BOARD OF EQUALIZATION et al.
Decision Date09 October 1926

Department 2.

Original action for mandamus by the State, on the relation of John H Dunbar, Attorney General, against the State Board of Equalization and others. Writ granted.

John H Dunbar and E. W. Anderson, both of Olympia for relator.

Chadwick, McMicken, Ramsey & Rupp, Shank, Belt & Fairbrook, Preston Thorgrimson & Turner, and Wright Froude Allen & Hilen, all of Seattle, amici curiae.

Alex M. Wilston, of Spokane, and Roberts & Skeel, of Seattle, for respondents.

MACKINTOSH J.

The Legislature of this state, in 1921, passed an act which appears as chapter 142 of the Laws of 1921, and provides that:

'The state board of equalization shall, beginning the fiscal year, 1921, and annually thereafter, at the time of levying taxes for state purposes, levy upon all property subject to taxation, a tax of one and ten one-hundredths of one mill (1.10) for the State University fund; sixty-seven one-hundredths of one mill (.67) for the state college fund; twenty one-hundredths of one mill (.20) for the Bellingham Normal School fund; fifteen and nine-tenths hundredths of one mill (.159) for the Cheney Normal School fund; and twelve one-hundredths of one mill (.12) for the Ellensburg Normal School fund.
'It shall be the duty of the joint board of higher curricula in the report to be made next preceding the convening of the Legislature in 1925 to recommend any changes in levy herein provided for which the said board may deem necessary or proper, and to give their specific grounds and reasons therefor, for the purpose of having the levy herein provided for readjusted by the Legislature of 1925.'

The Legislature of 1925 passed chapter 82 of the Laws of Extraordinary Session of 1925, repealing chapter 142 of the Laws of 1921, the new provision reading:

'The state tax commission shall, beginning the fiscal year 1926, and annually thereafter, at the time of levying taxes for state purposes, levy upon all property subject to taxation, a tax of one and forty-seven one-hundredths of one mill (1.47) for the State University fund; eight thousand seven hundred forty-six ten-thousandths of one mill (.8746) for the state college fund; twenty-six one-hundredths of one mill (.26) for the Bellingham Normal School fund; twenty-two one-hundredths of one mill (.22) for the Chency Normal School fund; and sixteen one-hundredths of one mill (.16) for the Ellensburg Normal School fund, upon one billion, one hundred fifty-eight million, twenty-six thousand, six hundred seventy-six dollars ($1,158,026,676.00).
'Sec. 2. That chapter 142 of the Laws of 7921, page 528, be and the same is hereby repealed.'

Thereafter, and in September, 1926, the state board of equalization, disregarding the act of 1925, proceeded to make a levy upon the property subject to taxation in this state according to the provisions of the law of 1921. Thereupon this action was begun by the state, on the relation of the Attorney General, against the board of equalization, to compel it to make a levy in accordance with the mandate of the 1925 statute. The objection of the respondents to the issuance of the writ of mandate divides itself into three major classifications: First, that the action is improperly brought in this court; second, that chapter 82 of the Laws of Extraordinary Session of 1925 is invalid because not properly authenticated; and, third, that that chapter is invalid because of ambiguity.

I. The first objection to the proceeding may be divided under several heads:

(A) It is urged that generally mandamus is not a proper remedy. The answer to this was adequately given in the decision in State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L. R. A. (N. S.) 466, where there was thoroughly reviewed the power of the court to issue mandamus against officials to compel the performance of a duty imposed upon them by statute, and where it was held that the validity of such a statute can be considered in the mandamus action.

(B) It is urged that the respondents are not state officers and therefore not subject to the writ sought. Section 4, art. 4, State Constitution. This court several times, in considering whether persons occupying different positions in connection with the state and municipal governments were public officers, has held that persons exercising functions analogous to those exercised by the respondents here were public officers. In State v. Womack, 4 Wash. 19, 29 P. 939, it was held that a member of the board of education was a public officer and that that term was not confined to such officers of the state as are mentioned in the Constitution. It was said that the members of the board of education 'are certainly public officers under any definition that can be found of the term public officer.' In Olympia Water Works v. Thurston County, 14 Wash. 268, 44 P. 267, it was held that members of county boards of equalization were public officers. In Lewis v. Bishop, 19 Wash. 312, 53 P. 165, the same decision was arrived at. In State ex rel. Cowles v. Schively, 63 Wash. 103, 114 P. 901, the state insurance commissioner, a person whose office was created by the state Legislature, was held to be a state officer. In State ex rel. North Coast Fire Insurance Co. v. Schively, 68 Wash. 148, 122 P. 1020, this same office was again held to be a state office and its occupant a state officer, and the early case of State ex rel. Stearns v. Smith, 6 Wash. 496, 33 P. 974, which held that a member of the board of regents of the Agricultural College was not a state officer, was criticized and in effect overruled. In State ex rel. Davis v. Johns (Wash.) 248 P. 423, the office of regent of the State University was held to be a state office. It was said in Blue v. Tetrick, 69 W.Va. 742, 72 S.E. 1033:

'* * * It is clear that a tax commissioner holds an office, and the Constitution authorizes the Legislature to create an office. The Constitution goes further than merely to authorize the Legislature to create an employment; it authorizes it to create an office. The tax commissioner is an officer, paid out of the public treasury, and exercises some great powers pertaining to sovereignty, and is therefore an officer, not an employé.'

A state office exists where there is reposed some part of the state's sovereign power and the levying of taxes is a sovereign power. The examination of a many page note to the case of Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169, leaves no question as to the respondents' status. It would therefore appear that this court has original jurisdiction in mandamus over the respondents.

(C) The next objection presented to the action is that the Attorney General is not a proper party to institute and maintain it. In Jones v. Reed, 3 Wash. 57, 27 P. 1067, it was held that the Attorney General was the proper party to enjoin the misapplication of funds appropriated by the Legislature for the purpose of establishing an agricultural school, and that that officer was the only one who could maintain such action. In State ex rel. Attorney General v. Seattle Gas & Electric Co., 28 Wash. 488, 68 P. 946, 70 P. 114, it was held that the Attorney General was not a proper party to maintain a quo warranto proceeding to inquire into the wrongful exercise of a franchise granted by a municipality. It was there held that the Attorney General did not have common-law powers and had no authority to institute an action concerning merely a local question which did not affect generally the citizens of the state, and it was also pointed out that the prosecuting attorneys of the several counties were given the power expressly to institute such proceedings. In Jones v. Reed, supra, and State ex rel. Pierce County v. Superior Court for Thurston County, 86 Wash. 685, 151 P. 108, this court held that the Attorney General is the only party who under the law can maintain an action to prevent public funds being improperly used. It would seem that if the Attorney General is the only proper party to prevent the misappropriation of public funds he should be a proper party to compel their proper use. If this is not so, there would be no one empowered to institute an action to compel state officials to use appropriated funds in the manner directed by the state Legislature. Under section 112 of Rem. Comp. Stat., it is made the duty of the Attorney General to institute and prosecute actions which may be necessary in the execution of the duties of any state officer, and, it having been made the duty of the respondents by chapter 82 of the Laws of Extraordinary Session of 1925 to levy certain taxes, it would seem to follow that it was the duty of the Attorney General to institute and prosecute such action as may be necessary to see that those duties were properly performed. Furthermore, section 11032 of Rem. Comp. Stat. makes it the duty of the Attorney General to enforce the proper application of funds appropriated to the public institutions of the state. The educational institutions are public institutions of the state, and, although the funds here may not strictly be said to have been appropriated, yet that word as used in this section should not be given that narrow and restricted meaning, but the intent of the act should be observed, which is that the Attorney General should see to the enforcement of an act which was intended to provide funds for the carrying on of state institutions.

(D) The further argument is made that mandamus will not be granted in this court unless the matter under examination is one of state concern. This court has held, in State ex rel Ottesen v. Clausen, 124 Wash. 389, 214 P. 635, State ex rel....

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