Mumma v. Brewster, 174 Wash. 112, 24 P.2d 438 (1933).

 112    MUMMA v. BREWSTER.
                    Opinion Per TOLMAN, J.           174 Wash.

      [No. 24372. Department Two. August 14, 1933.]
      ROY MUMMA et al., Appellants, v. TOWN OF BREWSTER
                et al., Respondents. «1»

[1] MUNICIPAL CORPORATIONS (97) - CONTRACTS - INDIVIDUAL INTEREST
OF OFFICER - EMPLOYMENT BY CORPORATION FURNISHING SERVICE. A
water power company supplying a town with electric energy is
"furnishing supplies" within the meaning of Rem. Rev. Stat.,
SS 9194, prohibiting any officer of the town from being
interested, directly or indirectly, in any contract with the
town for doing any work or furnishing any supplies for the
use of the town.

[2] SAME (97). The mayor of a town is not "interested," directly
or indirectly, in a contract for furnishing supplies to the
town, within the prohibition of Rem. Rev. Stat., SS 9194,
from the fact that he was an employee of the water power
company supplying electric energy to the town, where he
received no commission or compensation other than a regular
stated salary for services performed, without any financial
interest or profit from the relation between the town and
company, or any discretion or power in the matter.

Appeal from a judgment of the superior court for
Okanogan county, Nevins, J., entered July 27, 1932,
upon findings in favor of the defendants, in an action
for injunctive relief, tried to the court. Affirmed.

Peter McPherson, for appellants.

Chas. A. Johnson, for respondents.

                     MUMMA v. BREWSTER.                    113
 Aug. 1933               Opinion Per TOLMAN, J.

The trial court found:

"That plaintiffs are now and were at all times herein
mentioned residents and taxpayers of Brewster, Wash.
That the defendant town of Brewster is a regularly
organized and existing town of the fourth class of the
state of Washington; that the defendant R.A. Downing
is and was at all the times mentioned in the amended
complaint herein mayor of said town; that defendant
Ella Holden is and was at all the times mentioned in
said amended complaint the treasurer of said town;
that the Washington Water Power Company is and
was at all the times involved herein a public service
corporation organized and existing under and by virtue
of the laws of the state of Washington, and is now and
has been for some time last past engaged in the business
of generating, selling and distributing electric
power and energy for lighting, pumping and other
purposes, and during said times said public service
corporation has been and now is furnishing electric
power and energy for the purpose of supplying said
town with light and power for pumping for irrigation
and domestic uses of said town and its inhabitants;
that said defendant R.A. Downing is and was at all
the times herein mentioned district manager of said
public service corporation.

"That during all of said times said Washington
Water Power Company maintained and does now
maintain an office in said town with office employees
and assistants, all under the supervision and direction
of said Downing, and part of the duties of said
employees and assistants was and is to determine the
amount of electric power and energy used by said town
as aforesaid during each month and the amount to be
paid by said town for said energy, in accordance with
the schedule prepared by the board of public works of
the state of Washington, and not otherwise.

"That there is not now, nor has there been during
the times involved herein, any contract with said town
and said public service corporation for the furnishing
of such power and energy, but that the same has at all
times been furnished at the rates and in accordance
with schedules filed with and approved by the board

 114    MUMMA v. BREWSTER.
                    Opinion Per TOLMAN, J.           174 Wash.

of public works of the state of Washington and subject
to the regulation and supervision of said board, and
that the rates and charges for such power and energy
have been and are reasonable and just.

"That said Washington Water Power Company has
never been required to refund for overcharge for electric
power and energy furnished the town of Brewster
under the schedule of rates while said Downing has
been mayor of said town, as provided by law and rules
and regulations prescribed by the board of public
works; that it is necessary for said town to secure such
power and energy as aforesaid; that there is no other
public service person, firm or corporation of the same
nature as said Washington Water Power Company operating
in said town of Brewster.

"That the payment of said energy furnished by said
company to said town and its inhabitants has been and
is being paid for according to said schedules by warrants
of said town as provided by law, which said warrants
are approved by said Downing as mayor thereof
and payable to the order of said Washington Water
Power Company. That said Downing exercises no
judgment, discretion, power or option in furnishing
said electric power to said town, nor the rates charged
or paid therefor.

"That said defendant Downing is not now and has
not been at any of the times involved therein a
stockholder of said Washington Water Power Company and
is not now and has not been during any of said times
interested in or connected with said public service
corporation in any manner whatsoever, either personally,
financially or otherwise, in the furnishing of said power
and energy to said town by said public service corporation
and receiving payment therefor except as a paid
employee of said public service corporation, and drawing
a regularly stated salary from said Washington
Water Power Company; that said Downing receives
said regular salary only, but no commissions, payments
or other compensations in addition to said regular
stated salary at the present time or at any of the
times involved herein."

                     MUMMA v. BREWSTER.                115
 Aug. 1933               Opinion Per TOLMAN, J.

These findings are seemingly questioned by some of
the errors assigned, but no statement of facts is
brought to this court, and the only contention we can
now consider is that the facts found do not warrant
the judgment and that the relief which appellant sought
should have been granted.

[1] Reliance is placed upon the statute, Rem. Rev.
Stat., SS 9194, and upon our previous decisions
thereunder. The statute reads:

"No officer of such town shall be interested, directly
or indirectly, in any contract with such town, or with
any of the officers thereof, in their official capacity,
nor in doing any work nor furnishing any supplies for
the use of such town, or its officers in their official
capacity; and any claim for compensation for work done
or supplies or materials furnished in which any such
officer is interested shall be void, and if audited and
allowed, shall not be paid by the treasurer. Any willful
violation of the provisions of this section shall be
a ground for removal from office, and shall be deemed
a misdemeanor, and punished as such."

Our earlier cases construing this statute or thought
to have some bearing here, cited by one or the other
of the parties, are: Northport v. Northport Townsite
Co., 27 Wash. 543, 68 Pac. 204; Miller v. Sullivan,
32 Wash. 115, 72 Pac. 1022; Shaw & Hodgins v. Waldron,
55 Wash. 271, 104 Pac. 272, 28 L.R.A. (N.S.) 735;
Green v. Okanogan County, 60 Wash. 309, 111 Pac.
226, 114 Pac. 457; State ex rel. Gladwin v. Cheney,
67 Wash. 151, 121 Pac. 48; O'Neill v. Auburn,
76 Wash. 207,
135 Pac. 1000, 50 L.R.A. (N.S.) 1140; Besoloff
v. Whatcom County, 133 Wash. 109, 233 Pac. 284;
Directors of School District No. 302 v. Libby,
135 Wash. 233, 237 Pac. 505; O'Connor v. Murray,
152 Wash. 519, 278 Pac. 176.

In order to fall under the ban of the statute, there
must be (1) a contract for or the furnishing of supplies

 116    MUMMA v. BREWSTER.
                    Opinion Per TOLMAN, J.           174 Wash.

for the use of the town in which (2) an officer of
the town is directly or indirectly interested.

Passing without comment that portion of the findings
indicating that the trial court held there was here
no contract and also the findings as to the necessity of
the town to obtain these supplies from the Washington
Water Power Company, it would seem evident that
still there was a furnishing of supplies within the
meaning of the statute, even though the rates and
charges therefor were fixed by the board of public
works.

[2] As we now see it, the decision in this case must
turn upon the question of whether or no Downing, the
mayor, was directly or indirectly interested as an
individual or as an employee of the Washington Water
Power Company in such furnishing of supplies.

The findings seem to completely negative the possibility
of any such interest. The interest intended by
the statute is, of course, a financial interest, and not
an interest based on sentiment alone. That which
touches one's pocket is apt to warp the judgment.
Mere sentiment or good will may, and perhaps in rare
cases does, so warp the judgment of some, but the
danger is far more remote. Good will so commonly
enters into business transactions of every day nature
and is so universally accepted as being proper that the
statute as worded cannot be held to be applicable
thereto.

Downing as an employee to the public service
corporation is paid a stated salary and no commissions
based on receipts or earnings. His position and his
salary, no doubt, depend upon the prosperity of his
employer, and perhaps, in a remote degree, that
prosperity in some small part depends upon the profitable
furnishing of supplies to the town, but to hold that
this constitutes an indirect interest in Downing would

                     MUMMA v. BREWSTER.                117
 Aug. 1933               Opinion Per TOLMAN, J.

be to base a presumption upon a presumption, which
may not legally be done.

To come within the statutory prohibition, it must
appear that Downing directly or indirectly profited
from the relation between his employer and the town
of which he is an officer. The facts found utterly fail
to show any such situation. It cannot be presumed,
without any proof on the subject, that Downing owes
his employment to the fact that he is the mayor, or
that, if the town should cease to deal with his employer,
he would lose his position or receive less compensation
for his services. This situation, coupled with the finding,

"That said Downing exercises no judgment, discretion,
power or option in furnishing said electric power
to said town, nor the rates charged or paid therefor,"
makes very plain the fact that the evils which the
statute is desired to prevent are not here shown to be
present.

With the facts as here established, it seems
unnecessary to review and discuss in detail our previous
holdings in the cases already cited. In no case where the
statute has been held to apply were the facts at all
similar, and we find nothing in what was said in any
of these decisions which in any respect is contrary to
our present views.

The judgment of the trial court is affirmed.

BEALS, C.J., MAIN, STEINERT, and BLAKE, JJ., concur.