18 Wash. 220 | Wash. | 1897
The opinion of the court was delivered by
This is an application for a writ of mandate 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 upon the salary fund of said county for the sum of $1,932.95.
The petition states the facts. Its material part is as follows: After setting up the facts of election and qualification of the relator for the office of justice of the peace in the city of Everett, and that he served as justice during the years of 1895-6, it alleges that during said time, although the city of Everett had more than five thousand inhabitants, such fact was unknown to the relator, and continued to be so unknown during all the time that said relator held said, office until the 28th of December, 1896; that by reason of relator’s ignorance of the fact that the said city of Everett had, during said time, more than five thousand inhabitants, said relator was unaware that he was entitled to the salary of one hundred dollars per month, as such justice of the peace, or that he came within the provisions of the statute relating to salaried officers; that for such reasons he failed to make any claim for salary as such justice of the peace, or to pay into the county treasury any fees collected by
A demurrer was interposed to this petition, which demurrer was sustained by the court. Judgment was entered, dismissing the petition, and from such judgment appeal is taken to this court.
It has lately been decided by this, court in State, ex rel. Banks, v. Board of County Commissioners of Snohomish County, ante, p. 160, that the bills of justices of the peace of this character should be presented to the county commissioners for allowance. So that it is not necessary to enter into a discussion of that proposition, which is one of the main propositions discussed in this case.
The controlling question left in this ease, as we view it, is as to the force and effect of the judgment which is pleaded here. It is insisted by the appellant that it is conclusive, as no appeal has been taken therefrom. On the other hand, it is contended by the respondent that the judgment is void for the reason that the prosecuting attorney had no authority to bring an action for the benefit of the county. The petition, however, alleges that the prosecuting attorney was procured to bring this action by the commissioners for the purpose of deciding the question which is at issue here; and that, while the case was nominally in the name of the prosecuting attorney of Snohomish county, Snohomish county was the real party plaintiff.
Section 85, Oode Proc. (Baí. Code, § 4754), provides that
“ Prosecuting attorneys are attorneys authorized by law to appear for and represent the state and the counties there*225 of in actions and proceedings before the courts and judicial officers.”
It seems to us that this would give authority to the prosecuting attorney to bring this action, and there can be no question that he could bring the action by the authority of the board of county commissioners, and the mere fact that the action was in the name of the prosecuting attorney of the county, instead of the county, we do not think is of sufficient weight to render the judgment void, especially as it was not moved against in the trial .court. It does appear from the petition, in any event, that the county, through its commissioners, appeared, and was represented in that action. The fact that the respondent, who was the auditor, was not served or did not appear, it seems to us is not important. The real issue was one that was raised between the county represented by the county commissioners and the relator, who did appear and litigated the issues; and the county auditor, who is a mere ministerial officer to carry out the orders made by the board of county commissioners in relation to the issuance of warrants foy claims against the county, was in no way a necessary party to that suit. It is stoutly maintained, however, by the respondent that under the provisions of section 3039, 1 Hill’s Code (Bal, Code, §1646), the auditor is prohibited from issuing the warrant in a case of this kind. The section is as follows:
“ The salaries of the justices of the peace and constables, provided for in this chapter, shall be paid monthly out of the county treasury, and from the same funds out of which other salaried county officers are paid, and it shall be the duty of the county auditor, on the first Monday of each and every month, to draw his warrant upon the county treasurer in favor of each of said justices and constables for the amount of salary due him, under the provisions of this chapter, for the preceding month; provided, that the auditor shall not draw his warrant for the salary of any such of-*226 finer for any month until the latter first shall have filed his • duplicate receipt with the auditor, properly signed by the treasurer, showing that he has made the statement and settlement for that month as required by this chapter.”
In the ordinary case of a warrant drawn in favor of the justice of the peace there is no doubt that the position of the auditor would be justified by the law under the provisions of this section, but the facts set up in the petition in this case show that this method was simply impossible here. All questions of this hind, under the findings of the county commissioners when' this bill was presented to them, in the absence of proof to the contrary, we must conclude were investigated by that tribunal. And even if such presumption does not attach to the judgment of the board of cibunty commissioners, it must attach to the judgment of the superior court, and the law presumes that the court must have found that the auditor had complied with the provisions of the law as nearly as they could be complied with under the conditions set up in the petition, and all questions of estoppel which are discussed in the brief should have been raised in the superior court, and may have been raised there for aught this court can tell, and have been decided against the contention of the respondent in this case. And, even if we should hold that the order of the board of county commissioners in relation to the issuance of this warrant was not binding upon the auditor, it certainly must be held that the judgment of the superior court was binding and became the law directing him what to do in the premises as fully as though the matter had been adjudicated in this court, and the judgment of the lower court had been affirmed.
It is insisted by the appellant that, if the matter had been adjudicated, it was merged in a judgment and the effect of the judgment was the only thing to determine, and that if the judgment was rendered in a case in which the
There are some technical objections made by the respondent to the effect that the petition nowhere states that the defendant is county auditor or empowered by law to draw a warrant, but we think that such objections are not meritorious; thé auditor can have no personal interest in this case, and we think sufficient was set up in the petition to notify him of the real facts in controversy.
Of course, if there was any collusion or fraud in the obtaining of Ihe judgment, which is so severely criticized by the respondent, that is a matter which could be set up in an answer to the petition. We think, however, that so far as the demurrer is concerned it should have been overruled, and the cause will be reversed with instructions to the lower court to overrule the demurrer to the petition.
Scott, C. J., and Beavis, Anders and Gordon, JJ., concur.