19 Wash. 477 | Wash. | 1898
The opinion of the court was delivered by
This is an application for a writ of mandamus, brought by the relator in the name of the state against the defendant as county auditor of Snohomish county, to compel the defendant as such county auditor to draw and deliver to relator a warrant issued upon the salary fund of such county in the sum of $1,932.95. A demurrer was interposed to this petition, which was sustained by the court and judgment of dismissal was entered. From this judgment an appeal was taken to this court, and the case was decided and reported in 18 Wash. 220 (51 Pac. 369). The judgment of the lower court was reversed in that case, and the petition was held good on its face. The court in concluding its opinion in that case said:
“ Of course, if there was any collusion or fraud in the obtaining of the judgment, which is so severely criticised by the respondent, that is a matter that could be set up in an answer to the petition.”
Upon the return of the case to the lower court, an answer was filed by the auditor, the case was tried and the judgment was against the relator and ordered a dismissal of the action.
It seems to us that, under the answer in this case, the former decision was almost, if not entirely, conclusive of this appeal. It was decided in the case when it was here before, following the decision in State ex rel. Banks v. Board of County Com’rs of Snohomish County, 18 Wash. 160 (51 Pac. 368), that bills of justices of the peace of this
There are two propositions, either of which, it seems to us, is conclusive of this case in favor of the appellant. It appears from the petition and from the testimony in the case — in fact is not controverted anywhere — that the bill which is the subject of the controversy here was presented to the board of county commissioners and allowed by them. Some objection is made by the respondent to the effect that it does not appear by the records kept by the auditor that this bill was presented to the auditor, but the testimony in this case shows (and we think it was properly allowed) that the bill duly itemized and verified was presented to the board during a regular session, and that the auditor was present at the time acting as clerk of the board. The presentation of the bill to the board must necessarily be the important and essential proceeding which gives jurisdiction, and not the filing of the same with the auditor. When it was presented to the board it was the duty of the auditor to preserve and file it and he, and not the person who presented it, is responsible for its preservation. The answer, however, shows that the allowance of this bill was after-wards reconsidered by the board of county commissioners. The history of the case is as follows:
The bill was allowed on January 8, 1897, just prior to the retirement of the old board of county commissioners.
Again, it appears that during the pendency of an application for a writ of mandamus upon the 19th of January, a formal demand was made upon the auditor for the issuance of his warrant and also for the issuance of a warrant for relator’s December salary, an order for which had been made and entered by the old board on January 8th. Upon the refusal of the auditor to issue either of said warrants, relator sued out an alternative writ of mandamus against the auditor to compel the issuance of the December warrant. After the action of the board in February, the auditor answered, setting up two' affirmative defenses. The first was that he had made a careful examination of all the evidence presented to the board in support of the claim, and that from such examination he, the auditor, did not think the relator entitled to such warrant. The second was that, since the allowance of the claim, the commissioners had made an order revoking the same. A demurrer was interposed to this answer by the relator. While the cause was thus pending, the prosecuting attorney, J. H. Uaylor, entex’ed into a stipulation with the relator and Ms attorney to the effect that, if the dexxxurrer in the xnandamus proceeding should be sustained, the prosecuting attorney would bring an injunction
“ It is the opinion of the court that the auditor has no authority under the law to question or resist orders made by the commissioners court in matters within their jurisdiction, except where fraud, accident or mistake can be clearly proven. There being no allegation in defendant’s answer setting up any of these things he has no right to resist the order made by the commissioners court on January 8, 1897,, referred to and admitted in his answer. And it appearing by said answer that the order of said commissioners court made and entered on the . . . day of February, 1897, purporting to rescind and vacate the former order allowing plaintiff’s claim for salary, was made at a subsequent and different term of said court, can furnish him no defense to the former order or writ of mandate sought herein, the attempted revocation being without jurisdiction and void.”
Thereupon, under the stipulation, this case was allowed to lie dormant awaiting the action of the prosecuting attorney relative to the bringing of the injunctional suit. Such suit was immediately commenced by the prosecuting attorney in his own name, as such officer, and the board of county commissioners and Headlee as county auditor, York as county treasurer, and this relator, together with three other claimants were named as defendants. The prosecuting attorney, however, did not cause the complaint to be served on any of the defendants except the claimants. Trial was thereupon had and the court decided the issues in favor of the relator, one of the findings of fact being that the city of Everett in said county and state did, upon the 3d day of November, 1894, and up to and including the 11th day
It must be conceded that, if the county was a party to the injunctional proceeding, it is bound by the judgment in that action, but it is the contention of the respondent that this was an action brought by Naylor as an individual, and that the county was not a party to the same and cannot therefore be bound by the decree; and such was the view taken by the lower court. It was held in the former trial of this case that, so far as the petition showed, while the suit was in the name of Naylor as prosecuting attorney, the county was the real party plaintiff. This of course was denied by the answer, but we do not think the denial was sustained by the testimony. Circumstances sometimes speak more convincingly than direct allegations or denials by
“ I first went to the auditor and asked for the warrants^ not expecting any difficulty, but my answer was that it was in the hands of the prosecuting attorney. I then went to-the board of county commisisoners. I asked what was the trouble about these warrants not being issued and they answered that it was in the hands- of the prosecuting attorney. So then I went to the prosecuting attorney.
Q. Were all the members of the board present at that time?
A. I think so. I know Mr. Joergensen and Whiting-were sitting behind the table.
Q. Was there any dissent by any member of the board to that statement?
A. No.
Q. Now, Mr. Clohecy, you heard the testimony of the' auditor with reference to the later order made by the board’, relative to these claims?
A. I did.
Q. Were you present before the board on any occasion-prior to the ¿ate upon which the record shows this order to-have been made relative to this order?
A. Yes, sir.
Q. Who appeared there and advocated the adoption of that order?
A. Mr. Naylor, the prosecuting attorney.
Q. This is the resolution rescinding or attempting to-rescind the former action?
A. The rescinding resolution, yes.
Q. On how many different occasions did yourself and.*485 Mr. Naylor appear before the board of county commissioners on that matter?
A. Two afternoons of two or three hours long.”
The relator also offered to prove (and we think under the circumstances the testimony should have been admitted as having some weight on the question of whether or not the prosecuting attorney was authorized to act in this matter for the county), that at the time when the argument was finally completed upon the matter of revoking the order allowing the claims, Mr. Whiting, a member of the board, during the session said to Mr. Naylor that the matter of these claims was entirely in his hands and he, •as a member of the board, felt that he would do as Mr. Naylor told him to do in the matter, and that this statement was tacitly assented to by the other members of the board. They also offered to prove, which proof was competent, that the deputy county attorney appeared in the ease on behalf of the plaintiffs, and that during the entire trial of said cause two of the members of the board of ■county commissioners were present, and that on several •occasions during the progress of the trial the prosecuting attorney conferred with them; and it also appears from the record in this case that the costs of that suit were presented to the board of county commisisoners and that they allowed the same without any dissent and ordered them paid by the issuance of a warrant on the general fund. And it is impossible, in view of the whole record, to escape the conclusion that the action was brought not ■only in the interest of the county but at the instance and request of the county commissioners; that they ratified the bringing of the action without protest, paid the costs of •such action, and that they were the real parties in interest. That being true, the judgment of the court was a complete bar to the defense in this action, no fraud having been alleged in the answer.
Scott, C. J., and Gordon, Anders and Reavis, JJ.,. concur.