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lower than appellant's bid was submitted the issue raised by the request has already been by Flynn & Rockmark under the first call. determined.

3. When no statement of facts is brought It is alleged in the complaint that this firm

to the appellate court, it will be presumed that also failed to comply with the requirements the findings were warranted by the evidence. of the call by not tendering the bond there- 4. Where the issue is not complicated, and

the facts found lead to but one conclusion, the in required; and it is contended that, up

conclusions of law need not be separately stated, op the failure of Lillis & Tucker and Flynn

as provided by 2 Hill's Code, $ 379. & Rockmark to comply with the conditions 5. Plaintiff, in an action for unlawful deof the call, appellant was the lowest re

tainer, is not entitled to double damages, under

2 Hill's Code, $ 564, unless the same were spesponsible bidder, and that his bid should

cially claimed in the complaint. have been accepted; and it is further al- 6. Though a judgment for plaintiff is releged that he offered to execute the contract duced on appeal, he is entitled to costs if de

fendant, by application to the lower court, could and .bond required. It is not alleged that

have_secured a reduction of the judgment. Flynn & Rockmark's bid was accepted, or 7. The failure of a court trying a case withthat they were given any opportunity by the out a jury to make separate conclusions of law board to enter into the contract and bond

is not ground for reversal, but the supreme

court will direct the proper judgment upon the provided for. Nor is it alleged that the ap- facts found. pellant was found to be the lowest responsible bidder. It simply appears, in substance,

Appeal from superior court, King county;

T. J. Humes, Judge. that, upon the failure of Lillis & Tucker to

Action by Mary A. Gaffney against John comply with the conditions required, the

Megrath and others for unlawful detainer board rejected all bids, and made a new call, containing the additional provisions and

and recovery of rent. Judgment for plain

tiff. Defendants appeal. Affirmed. changes aforesaid. In our opinion, the appellant has utterly failed to state a case en- slaine & De Vries, for appellants. Richtitling him to any relief. A discretionary ard Saxe Jones, for respondent. power was conferred upon the board to reject all bids, and this was virtually what GORDON, J. This is an action of unlawwas done. Conceding that the discretion ful detainer, and for the recovery of rents, vested in the board is one that courts would etc. In the court below, a jury trial was exercise some control over, it does not ap- waived. Findings of fact and conclusions of pear that it was improperly exercised, or law were made and entered. From a judgthat there was any abuse thereof. The ment entered thereon in favor of the respondboard had a right to reject all the bids and ent, this appeal is taken. Much of the brief issue a new call prescribing different condi- of appellants is devoted to discussing the tions. There was no discrimination against regularity of the findings tested by the comthe appellant in this particular. The bids plaint; but it appears from an examination were all rejected. The fact that the appel- of the record that the learned counsel for aplant offered to perform the work under the pellants, in the preparation of his brief, overbid first submitted by him, and enter into looked the fact that respondent was permitthe contract and bond as subsequently chan- ted to amend her complaint, and to the comged, would not be sufficient to compel the plaint as amended his objections are inapboard to enter into a contract with him. plicable, and will not be considered. Nor would the fact that appellant offered to The objection made to the fourth finding do the work for the sum bid by Moffatt we do not consider is well taken. The comBros. under the second call, which

plaint alleges that the appellants “have at all something less than $200 below the bid the times mentioned in this complaint after submitted by appellant under the first call, the 1st day of January, 1893, and for a long entitle him to such relief.

time previous thereto, been entitled to and We are of the opinion that the judgment subject to all the right, interest, title, and of the court was clearly right, and it is af- conditions arising from the said lease and firmed.

contract as such party of the second part

thereto." It was only material to know that HOYT, C. J., and ANDERS, J., concur. the appellants became liable as lessees (or

parties of the second part) at some time prior

to the happening of the occurrences upon (11 Wash, 456)

which respondent predicates her right to re

cover. GAFFNEY V. MEGRATH et al.

The court so found. (Supreme Court of Washington. March 22,

Appellants, in their answer, claim that ap

pellant Megrath parted with his interest in 1895.)

the premises on May 1, 1893, and they reSuit by LANDLORD--UNLAWFUL DETAINER SUFFICIENCY OF COMPLAINT-DOUBLE DAMAGES

quested a distinct finding to that effect, TRIAL BY COURT-Costs ON APPEAL.

which the court declined to make, and this is 1. In action for unlawful detainer assigned as error. But this issue was deagainst assignees of a lease, it is only neces- termined against the appellants by the court's sary to allege and prove that the assignment

finding (No. 8) that appellants “are now in was prior to the alleged detainer, without showing the character of the assignment.

possession of the said premises,” etc.

Upon 2. A distinct finding will not be made when the facts as found by the court, the appel

was

an

lants became liable for the performance of 2. A deputy county clerk is not an "officer," all of the conditions and were bound by all

within the meaning of Const. art. 11, $ 5. re of the stipulations contained in the lease de

quiring the legislature to provide for the elec

tion of county officers, to prescribe their duties, volving upon the parties of the second part.

and to regulate their compensation. We think the complaint is sufficient to up- 3. Act March 26, 1890, § 2, providing that hold the findings, and it is to be presumed

the board of commissioners may employ depu

ties for county officers at the expense of the (no statement of facts having been brought

respective counties, is not a delegation of leg. to this court) that the findings were war- islative power. ranted by the evidence produced on trial.

4. An order of the county commissioners, Appellants contend that the court failed

subsequent to the election of the county clerk, al

lowing him a deputy, at a stated sum per annum, to make conclusions of law agreeably to sec- does not violate Const. art. 11, § 8, forbidding tion 379 of the Code, and cite the case of the salary of any county or municipal officer to Bard v. Kleeb, 1 Wash. St. 370, 25 Pac. 467,

be increased during his term of office. and 27 Pac. 273, in support of their conten- Appeal from superior court, Clallam countion. We do not think that case applicable ty; James G. McClinton, Judge. to the point here sought to be made. The Action by Henry Nelson, a resident and issues in this case were not complicated, and taxpayer of Clallam county, to restrain John the facts found by the court lead to but one W. Troy, auditor of said county, from issuconclusion,-they entitle respondent to judg- ing a warrant upon the county treasurer for ment as prayed in the complaint. But, were payment of services of the deputy county we to concede the correctness of appellants' clerk. A. A. Richardson, county clerk, was contention in this regard, it could not work permitted to intervene; and from a judgment a reversal of the judgment. It would be the sustaining defendant's demurrer to the comduty of this court, upon the facts found and plaint, and dismissing the cause, plaintiff certified here, to direct the proper judgment. appeals. Affirmed.

The remaining question is this: In her Benton Embree, for appellant. John W. complaint respondent asks judgment for the

Troy and A. A. Richardson, pro se. sum of $861.29. Judgment was actually en. tered for $1,161.29, the court following the

GORDON, J. This proceeding was instistatute (section 564, 2 Hill's Code). This

tuted by the appellant in the superior court court has held in Furniture Co. v. Wilbur, 4

of Clallam county, for the purpose of reWash. 644, 30 Pac. 665, that a plaintiff was

straining the county auditor from issuing a not entitled to the double damages afforded

warrant upon the county treasurer for the by that section, unless he specially claimed

payment of services of the deputy county the same in his complaint, and that the pray

clerk of said county. The respondent Rich. er of the complaint should govern the recov

ardson, the clerk of said county, was perery in such cases. We are satisfied with the

mitted by the court to intervene in the acconclusion reached in that case, and think it

tion. The lower court sustained the audit. announces the correct rule of practice. We

or's demurrer to the complaint, and, the apthink, further, that the court's conclusion of

pellant having elected to stand on his comlaw did not authorize the entry of judgment

plaint, judgment was 'rendered dismissing for any sum in excess of the $861.29 claimed

the cause, from which judgment this appeal by respondent in her complaint. It is to be

is taken. presumed, however, that in this particular

It appears from the complaint (1) that the the court, upon application of the appellants,

appellant is a resident and taxpayer of Clalwould have modified and corrected the judg

lam county; (2) that said county is, by legisment to conform to the prayer of the com

lative classification, a county of the twentyplaint. It does not appear that any such

third class, and the salary fixed and allowed application was made to the lower court;

by law to be paid to the county clerk of said hence we think that respondent is entitled to

county is $1,000 per annum; (3) that on Febcosts upon this appeal. The money judgment

ruary 6, 1893, and subsequent to the election will be reduced to $861.29, and, as reduced,

and qualification of the county clerk, the the judgment is affirmed.

county commissioners, by an order therefor HOYT, C. J., and ANDERS and SCOTT,

duly made, allowed said clerk a deputy for JJ., concur.

an indefinite period, and fixed the salary of such deputy at $1,000 per annum, and also

by appropriate resolution empowered and di(11 Wash. 435)

rected the respondent auditor to draw his NELSON v. TROY, County Auditor (RICH- warrant upon the treasurer of said county

ARDSON, County Clerk, Intervener). on the first Monday of each month thereafter (Supreme Court of Washington. March 20, for the salary due said deputy for the pre1893.)

ceding month; and that from the date of CONSTITUTIONAL LAW-ACT AUTHORIZING EMPLOY. such appointment until the beginning of this MENT OF DEPUTY DELEGATION OF LEGIS- action such course had been followed, etc. LATIVE POWERS-INCREASE OF SALARY.

Other matters set out in the complaint are 1. An act of the legislature is presumed constitutional, and its conflict with the consti

unnecessary to a proper understanding of the tution must be clearly and unquestionably questions here presented. shown before it will be declared invalid.

For a reversal of the judgment, appellant

relies upon the following points: (1) That hence we will not construe section 32 of the the provisions of the act of March 26, 1890, act. authorizing county commissioners to allow It is a general rule that before the judicounty officers deputies, and to fix their com- ciary will declare an act of the legislature pensation, are invalid, as an attempt upon invalid, on the ground that it is in conflict the part of the legislature to delegate the with the constitution, such conflict must be exercise of powers exclusively legislative; (2) shown to be clear and unquestionable, and that the effect of the order is to increase the every intendment must be given force in fasalary of the county clerk during his term vor of the constitutionality of the law. But of office; (3) that the effect of the provision appellant contends that section 5, art. 11, of of the act authorizing the commissioners to the constitution, above quoted, is a restricfix the salaries of deputies is to destroy the tion and limitation upon the power of the uniformity of the operation of the law; and legislature to intrust the employment of (4) that the court erred in permitting the clerks, deputies, or assistants to the county county clerk to intervene in the suit.

officers to the board of coniwissioners; and Section 5, art. 11, of the constitution pro- that, by the provisions of said section 5, it vides: “The legislature, by general and uni. was the duty of the legislature in fixing the form laws, shall provide for the election in compensation allowed county officers for their the several counties of boards of county com- services to so regulate the same that the missioners, sheriffs, county clerks, treasurers, sum so fixed by the legislature should be inprosecuting attorneys, and other county, clusive of all services performed by such offitownship or precinct and district officers, as cers, their deputies, clerks, or assistants. public convenience may require, and shall And he further contends that by section 2, prescribe their duties and fix their terms of above set out, an attempt is made to delegate office. It shall regulate the compensation of to the board of commissioners the authority all such officers, in proportion to their duties, to change the law fixing the salaries of counand for that purpose may classify the coun- ty officers whenever it shall appear to said ties by population." Section 8 of the same board that the salaries fixed are inadequate article further provides:

* The sal. for the services required of such officers. ary of any county

or municipal offi- Hence it becomes necessary to construe seccer shall not be increased or diminished after tion 5 of the constitution, in order to deterhis election, or during his term of office.” mine its effect upon the legislation in quesSection 29, art. 1, is as follows: "The provi- tion. sions of this constitution are mandatory, un- Section 5, art. 11, of the constitution of Caliless by express words they are declared to be fornia provides: “The legislature, by general otherwise.” At the first legislative session and uniform laws, shall provide for the elecsubsequent to the adoption of the constitu- tion or appointment in the several counties, tion of this state, an act was passed for the of boards of supervisors, sheriffs, county evident purpose of carrying into effect the clerks.

It shall regulate the compenmandatory provisions of section 5, art. 11, sation of all such oflicers in proportion to the of the constitution, above quoted. The act duties, and for this purpose may classify the begins with the statement (section 1, Act counties by population." An act of the legis. March 26, 1890) that, "for the purpose of reg- lature of that state provided for the classifica ulating the compensation of county officers tion of counties, and fixed the compensation herein provided for, the several counties of of a given officer in a lump sum, out of which this state are hereby classified according to it expressly required him to pay for the servtheir population," etc. The act then pro- ices of all deputies and assistants; his own ceeds to classify counties accordingly, to pro- compensation virtually consisting of the resivide for the election of officers, and to fix due remaining after such deputies and assisttheir term of office and compensation. The ants were paid. At a subsequent session an provisions of that act which are directly as- amendment

passed, providing that, sailed by the appellant herein as being in “whenever in the opinion of the board of suconflict with section 5, supra, and an unwar- pervisors the salary of any county officers (in ranted delegation of exclusive legislative certain classes of counties] as fixed and propower, are found in sections 2 and 32. Sec- vided in this act is insufficient to pay a reation 2 is as follows:

And in all sonable compensation for the services required cases where the duties of any office are to be performed, then said board shall allow greater than can be performed by the person such officer a deputy, or such number of depuelected to fill the same, said officer may em- ties, as in their judgment may be required to ploy, with the consent of the county commis- do the business of said office in connection sioners, the necessary help, who shall re- with the principal, at a salary not to exceed ceive a just and reasonable pay for services. one hundred dollars per month." And this The officer appointing such deputies or clerks amendment was by a divided court, in the shall be responsible for the acts of such ap- case of Dougherty v. Austin, 94 Cal. 601, 28 pointees upon his official bond.” The au- Pac. 834, and 29 Pac. 1092, declared to be thority conferred by this section is sufficient unconstitutional and void as an attempt by to entitle the respondents to prevail herein the legislature to delegate to the board of if the legislation itself is not unconstitutional; | supervisors the duty imposed on it, by the

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section of their constitution already quoted, which the learned majority of the California of regulating the compensation of all county court has taken of the subject in the case of officers in proportion to their duties. The act Dougherty v. Austin seems to deny the exwas also held to be void as being in contliet istence of any distinction between the "offiwith section 9, art. 11, of the constitution of cer" and the deputy, and the term "officer" that state, wherein it is provided that "the seems to have been rendered so as to include compensation of any county

deputies and all needful assistants. Doubinicipal officer, shall not be increased after his less, many instances might arise requiring election or during his term of office." It was such construction; but as we can only adopt further held to be obnoxious to the provisions it at the expense of declaring a solemn act of of their constitution requiring all laws of a the legislature void, thereby causing confusion general nature to be uniform in their opera- and great public inconvenience throughout tion, for the reason that the authority at- the state, we are constrained to reject it. A tempted to be conferred upon the boards of deputy county clerk is not a county officer. supervisors by said act was limited to certain Jeffries v. Harrington, 17 Pac. (Colo.) 503; classes of counties. As regards this latter Warwick v. State, 23 Ohio St. 24. The 'offipoint, the case cannot be considered as au- cer' is distinguished from the employé in the thority upon the question which we are now greater importance, dignity, and independence considering. This case of Dougherty v. Aus- of his position; in being required to take an tin, supra, is the only case to which we have official oath, and perhaps to give an official been referred by counsel, or which we have bond; in the liability to be called to account been able to discover, which seems to have a as a public offender for misfeasance or nondirect bearing upon the present controversy; feasance in office; and usually, though not and after giving it a very careful considera- necessarily, in the tenure of his position." tion, although entertaining for the ability and Throop v. Langdon, 40 Mich. 673 (per Cooley, learning of that court the highest regard, we J.). This view of the subject appears to have are, nevertheless, unable to adopt either the been overlooked by the learned court in the reasoning of the majority or the conclusion California case, or else to have been regarded reached by them in the settlement of this as unworthy of consideration, but to our question.

minds it is of controlling importance. The It seems to us that the determination of this whole scope of the constitutional provision requestion lies within a very narrow compass. lates to the officer, and not necessarily to mere The question is, what is meant by the term clerks and deputies. True, the constitution "officer," as used in the section of the con- provides that the legislature shall regulate stitution under consideration? And it seems the compensation of such officers in proporto us that the answer is suggested by a con- tion to their duties, etc.; but we cannot see sideration of the section, and what it calls up- that this required the legislature to fix a lump on the legislature to do. It requires the leg. sum from which he would be required to pay islature to provide-First, by general and uni- all deputies and needful assistants, which was form laws, for the election of county officers the course of legislation first pursued in Cali(not deputies or assistants); second, to pre- fornia. "In proportion to their duties” might scribe their duties; third, to fix their terms of well mean that, in regulating the compensaoffice; and, lastly, to regulate the compensa- tion as between the different officers of the tion of "such officers." The whole scope of county, regard should be had to the difference the provision relates to the “officer," and to in the character of services required of thein. him alone. It is for his election that provi- For instance, the duties devolving upon a sion is to be made by the legislature; it is his prosecuting attorney of a county are very term of office that is to be fixed; and it is dissimilar to those of the county coroner or equally true that it is only his compensation assessor; hence, in a relative sense, the legisthat the legislature is required to regulate; lature are by this provision required to reguand, if we are right in this construction, then late the compensation of the officers “in proit necessarily follows that, as to needful depu- | portion to their duties," and this, we think, ties and assistants, the section imposes no is all that is meant by that portion of the seelegislative restrictions or limitations, and the tion under consideration. At least, it ought legislature is left in precisely the same condi- not to receive a narrow construction when a tion, and with the same power and authority legislative enactment is imperiled thereby. as concerns the subject of this litigation, viz. To give to these words the restricted mean. the deputy county clerk of Clallam county, ing, and to render them in a narrow sense, is that it would have been in had section 5 of not required by any rule of construction with article 11 never been incorporated in the con- which we are familiar. Hence it follows stitution. By thus construing it, we give to that the limitations imposed upon the legislathe term "officer” its common, ordinary, and tive authority by the provisions of section o. accepted meaning,-a meaning which permits art. 11, relate only to the officers of the counthis legislative enactment to stand; and we ty,-i. e. to the persons elected to fill the of. do not consider that there is either reason or fices, as distinguished from mere clerks or necessity for straining it from its usual to a deputies; and that, as to clerks or others restricted sense, when the “result of such con- whose services may be requisite or necessary struction is to upset a statute." The view to the discharge of the business of a particular office, the subject is left, so far as the con- greatly exceeds the amount fixed by the leg. stitution is concerned, to the wisdom of the islature as salary of the officer. Our whole legislature, untrammeled and unfettered by legislative policy, since the adoption of the any restrictions or limitations. Such being constitution in regard to this subject, has the case, had the legislature the power to con- been to allow the commissioners of the seyfer upon the county boards the authority to eral counties to make provision for this asemploy assistants of the county officers at the sistance at the charge of the respective coun. expense of their respective counties?

ties. To avoid any possible doubt as to the It is very generally laid down by law writ. legislative meaning, section 2 of the act of ers that the power to make laws cannot be March 26, 1890, above quoted, was adopted. delegated by the body in which that power A directly opposite course of legislation was is reposed. “Where the sovereign power of pursued in California. Instead of fixing the the state has located the authority, there it compensation of the officer, and making sepmust remain; and, by the constitutional arate provision for the payment of necessary agency alone, the laws must be made until assistants to him, the legislature of that the constitution itself is changed.” Cooley, state, as already noticed, provided for a lump Const. Lim. (5th Ed.) p. 139. "But," says

sum out of which he was required to pay that eminent jurist, “this maxim that legis- needful assistants. It follows that, inasmuch lative power must not be delegated

as section 2 of the act of 1890 was in force is to be understood in the light of the imme- and effect at the time the intervener was morial practice of this country and of Eng- elected and inducted into office, the constituland, which has always recognized the pro- tional provision prohibiting the increasing of priety and policy of vesting in municipal or- salary during the term of office was in no ganizations certain powers of local regula- wise violated by the order of the commistion in respect to which the parties immedi- sioners allowing the intervener a deputy, at ately interested may fairly be supposed to be the charge of Clallam county. more competent to judge of their needs than The third proposition contended for-viz. any central authority." And courts do not that the effect of the act is to destroy the regard this practice as obnoxious to the con- uniformity of the operation of the law-does stitutional principle that the power conferred not impress us with any force. The case of upon the legislature to inake laws cannot Dougherty v. Austin, for the reasons already be delegated to any other body or authority; pointed out, is not in point upon this propo and we think the subject-matter of the pro

sition. Ours is a general provision of law, viso contained in section 2 of the act of 1890, applicable to all classes of counties, the exerabove set out, falls within the exception in cise of the power or duty imposed upon the favor of local regulation, and, as such, is not commissioners depending upon the condition a delegation of legislative power. The au

of the public business in a given county; thority conferred and the duty imposed by like conditions insuring like results. this section are not legislative, but adminis

As to the final contention of counsel,—that trative; and we think it a very general and the court erred in permitting the county clerk proper legislative practice to delegate to com- to intervene in the action,-without stopping missioners and other municipal officers the to consider the question of the regularity of power to do many administrative acts which the proceeding, it is sufficient to say that the legislature might undoubtedly do itself. permitting him to do so in this case did not It rests upon the convenience of such ar- operate to the prejudice of the appellant in rangement, and obviates the difficulties in any way. the way of making direct, suitable, legisla- The judgment appealed from will be aftive provision. Indeed, appellant concedes

firmed. the legislative authority to pass the act, unless it is cut off by said section 5 of the con- HOYT, C. J., and ANDERS, J., concur. stitution.

The second proposition does not require such extended consideration. We do not

(11 Wash, 492) think that the effect of the order of the

TACOMA MILL CO. V. SHERWOOD et al board of commissioners in question was to increase the salary of the county clerk of

(Supreme Court of Washington. March 25, Clallam county. It is clear that the legis

1895.) lature of this state, in fixing the compensa

NOTICE OF APPEAL - NEGOTIABLE INSTRUMENTS

PAROL EVIDENCE. tion of the several county officers, intended the sum so fixed as compensation to the offi

1. Where the notice of appeal is served on

one appearing of record as attorney, and it does cers only; and this, as we have seen, is all not appear that any substitution of attorneys that the constitutional provision, mandatory was made, the appeal will not be dismissed on though it be, required the legislature to do.

the ground of improper service.

2. Parol evidence is not admissible to prove This court will take notice of the fact that in

that one whose name appears on a note as a many counties of the state the volume of joint maker signed it with the understanding public business pertaining to certain officers that he was not to be held liable thereon. is so great as to necessitate the employment

3. Where notes sent to a person by mail,

for his signature, were signed by him immediof assistants, the cost of which necessarily ately below the maker's name, a letter writ

v.39p.no.9–62

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