65 Wash. 416 | Wash. | 1911
Lead Opinion
— This action was commenced by A. Faucher against A. F. Rosenoff, auditor of Adams county, to obtain a writ of mandamus compelling the issuance of a salary warrant to plaintiff as county treasurer, on the basis of a salary of $1,800 per annum. The writ was issued, and defendant has appealed.
On October 3, 1906, the board of commissioners made an order placing Adams county in the thirteenth class, which means that the population was then ascertained to be 14,000 and under 16,000. Rem. & Bal. Code, § 4031. Thereafter, from January, 1907, until January, 1911, salaries of officers of counties of the thirteenth class were paid in Adams county, the treasurer being allowed $1,800 per annum. According
“A. F. Rosenoff, Olympia, January 11, 1911.
“Auditor Adams County,
“Ritzville, Wash.
“Dear Sir: Under chapter 76, Laws of 1909, you are made ex-officio member of this bureau, and as such we would request that you submit the following resolutions at the next meeting of your present board of county commissioners:
“ ‘Resolved, That on or before the 8th day of November, 1910, the population of Adams county was found by the Federal census taken April 1st, 1910, to be 10,920, and that by reason of said finding Adams county is a county of the fifteenth class, therefore all officers are ordered to so govern themselves.’ You are hereby notified that in drawing warrants for salaries hereafter they should be as set forth for a county of the fifteenth class. Of course the passage of this resolution is not absolutely necessary, but it would relieve any doubt and all question over this matter. The law has been held by the attorney general as follows, that the taking of the census automatically operates to regulate the classification of the county as of the date on which the census was taken until such time thereafter as another census shall be taken.”
Appellant immediately referred this letter and resolution to the county commissioners, who took no action. In pursuance of its instructions, appellant proceeded to draw all warrants for salaries pertaining to counties of the fifteenth class, and tendered respondent a warrant for $89.70, due him on February 1, 1911, for twenty-three days’ services at $1,450 per annum. The warrant was refused by respondent, who thereupon commenced this action. He insists the controlling question on this appeal is whether the county commissioners,
“For the purpose of regulating the compensation of county officers and for all other purposes herein provided for, the several counties of this state are hereby classified according to their population: . . .
“Counties containing a population of fourteen thousand and under sixteen thousand shall belong to and be known as counties of the thirteenth class; . . .
“Counties.containing a population of ten thousand and under twelve thousand shall belong to and be known as counties of the fifteenth class; . . .”
The words “shall belong to and be known as” are mandatory. When it was definitely ascertained by a legal and proper enumeration that Adams county had a population of 10,000 and under 12,000,' the law at once assigned it to the fifteenth class. At the trial the parties stipulated:
“That the population of Adams county, Washington,, as determined by the Federal census taken on or .about April 1, 1910, then was 10,920 persons, and said fact shall be accepted and taken as evidence, and it shall be unnecessary to introduce any other evidence or proof as to the population of said county on said first day of April, 1910, or at any time thereafter.”
No additional evidence was offered, and we must accept as an established fact that, on November 8, 1910, Adams county had a population of 10,000 and under 12,000. It was, there
“The salary to be paid has been clearly and definitely fixed according to population. There is nothing in the provisions of § 5, art. 11, of the constitution, from which it can be inferred that the means of ascertaining the population for the classification was also referred to the legislature. It is just as manifest in this case as in Anderson v. Whatcom County, supra, that the population of a county can be determined by the courts by competent testimony outside of any legislative enactment as that the population of a city could be so determined. The board of county commissioners is charged by law with the financial management of the county affairs. The county officers must be paid in proportion to their duties as based on population. In the absence of any law pointing out how that population should be ascertained, the board of county commissioners can determine the fact by proof, just as it can determine any other fact nécessary for the discharge of its duties. By the act of March 18, 1901, § 1 of the act*420 of March 20, 1890, was amended in several particulars, and all reference as to how and by what means the population should be ascertained was omitted. This omission leaves this last act without force, unless the boards of county commissioners or the courts are authorized to ascertain the population. The enactment of the law of March 18, 1901, without reference to the mode of ascertaining the population of classified counties, strengthens the view we have adopted in this case that it was the intention of the legislature to leave that matter, as incident to its duties, with the board of county commissioners, and the courts in case the action of the board of county commissioners was questioned. We think that the court below was justified in receiving proof of the population of Skagit county in November, 1900, when the county clerk was elected, and that he was entitled to be paid by the board of county commissioners according to the population of Skagit county, and that the Federal census for 1900 is competent evidence to prove this population; that, according to the evidence in this case, the population of Skagit county when the claim was presented, was above fourteen thousand and less than sixteen thousand; that under the act of March 26, 1890, Skagit county was at the time the claim was presented for allowance, in the thirteenth class, and the respondent is entitled to the salary for county clerk within that class.”
By this announcement it was not intended to hold that exclusive jurisdiction had been conferred upon county commissioners to fix the classification of a county so that it could not be thereafter raised or lowered until they see fit to take further action. In 1906 the commissioners determined Adams county had a population of 14,000 and under 16,000. Their finding does not seem to have been questioned at that time. The Federal census shows that nearly four years later Adams county had a population of only 10,920. There is no suggestion that the determination made by the commissioners, whether by enumeration or otherwise, was more accurate than the later enumeration of the Federal census in 1910, or that the Federal census was deficient in any respect. It is evident that Adams county has lost a large percentage of its popula
The cases of State ex rel. Smith v. Neal, supra, and State ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479, 104 Pac. 797, necessarily recognize the doctrine that, when by competent evidence, the fact is established that the population of a county has so increased as to assign it into a higher class, the county officers elected after such increase will be entitled to the advanced salaries pertaining to counties of the higher class, and may compel payment by writ of mandamus. The theory of those cases is that the actual population determines the classification. While we have held an increase in population may be ascertained by county commissioners, we have not held they may arbitrarily fix a certain classification or, when a later census shows too high a grade has been fixed, or shows that the county has decreased in population, the courts will be without jurisdiction to act because the commissioners remain inactive. If by mandamus the courts are entitled to direct the payment of higher salaries when the population of a county warrants such an order, and may do so irrespective of action by the county commissioners, they certainly have jurisdiction to make such orders as may be necessary to enforce the payment of decreased salaries should a loss of population reduce the rank of the county. The principle is the same in each case. If Adams county had a population of 14,000 and under 16,000 on November 8, 1910,
The judgment is reversed, and the cause remanded with instructions to deny the writ.
Dunbar, C. J., Ellis, and Morris, JJ., concur.
Dissenting Opinion
(dissenting in part) — The present population of Adams county being stipulated by the parties, I concur in the result, but not in the reasoning of the majority. The opinion goes further than is necessary to decide the case before us, and in so doing, although it may seem paradoxical, the court has not gone far enough. The law has been settled in this state that, inasmuch as the constitution failed to provide any method for the classification of counties, the power lies in the county commissioners and also in the courts. The suggestions in the opinion to the effect that the Federal census would automatically work a change in such classifications and, when it is definitely ascertained, etc., the law at once assigns the county to its proper class, are wrong when considered in the light of our own decisions and the fundamental principles of the law. In this state, where the population is rapidly growing and where it has in fact increased three-fold within ten years, we may well take judicial notice of the fact that counties should be re-classified between the census periods. Now, the commissioners of Adams county fixed the population and classification of the county in 1906, and their act having passed unchallenged, we are bound to presume that they acted upon sufficient evidence, and their order is binding