Thomas v. Whatcom County, 82 Wash. 113, 143 Pac. 881 (1914).


                     THOMAS v. WHATCOM COUNTY.               113
 Oct. 1914               Statement of Case.

      [No. 11817. Department One. October 20, 1914.]
      L. A. THOMAS, Appellant, v. WHATCOM COUNTY et al.,
                     Respondents. 1

COUNTIES - COMMISSIONERS - DECISIONS - LACK OF RULINGS -
COURSE OF CONDUCT. It is a reasonable inference that the board of
county commissioners had determined that three deputy sheriffs and
one jailer were necessary to a proper conduct of the sheriff's
office, although no formal order was entered to that effect, where
it appears that the board had monthly for eight years audited and
allowed payrolls for their services.

SAME - COMMISSIONERS - CONTINUING EXISTENCE - CHANGE OF
PERSONNEL. The county board of commissioners has a continuous
existence so that a change in its personnel does not abrogate its
findings or resolutions.

SAME - FINDINGS BY COMMISSIONERS - ABROGATION - CONSTRUCTION.
A finding by the county commissioners that three deputy sheriffs
and one jailer were necessary to a proper conduct of the sheriff's
office is not abrogated by a resolution to the effect that the
appointment of three certain deputies and a jailer were inimical
to the best interests of the county, and that they would not be
allowed any pay, but that the board was willing to allow or pay
any other persons appointed by the sheriff.

SHERIFFS - DEPUTIES - POWER TO APPOINT - STATUTES -
CONSTRUCTION. Under Rem. & Bal. Code, SS 4032, providing when
county officers may employ necessary help, at just and reasonable
compensation, by and with the consent of the county commissioners,
and making the officer responsible upon his official bond for the
acts of his employees, and Id., SS 4065, providing that the county
commissioners may allow a county officer such deputies as may be
required to do the business of the office, at such salary as they
may designate, the officer has the absolute right to determine the
personnel of such deputies as may have been allowed.

Appeal from a judgment of the superior court for
Whatcom county, Hardin, J., entered September 18, 1913, upon
sustaining a demurrer to the complaint, dismissing an action
to recover salaries. Reversed.


1 Reported in 143 Pac. 881.

 114    THOMAS v. WHATCOM COUNTY.
                     Opinion Per MAIN, J.           82 Wash.

George Livesey, N. K. Staley, and H. C. Thompson, for
appellant.

Frank W. Bixby and W. A. Martin, for respondents.

MAIN

MAIN, J. - This action was instituted by L. A. Thomas,
as assignee, for the purpose of collecting salaries alleged
to have been earned by three deputy sheriffs. The second
amended complaint, aside from the formal parts, states in
substance the following facts: At the general election held
on November 5, 1912, the plaintiff was re-elected sheriff of
Whatcom county for a period of two years. On January
13, 1913, he qualified as sheriff for this, his second term,
and caused to be filed in the office of the auditor of Whatcom
county a certificate appointing L. J. Flanagan, Wilson
Stewart, and Emery Hess as deputy sheriffs for the term of two
years, commencing on that date. On this same date, the
members of the board of county commissioners, within three
hours after the time when they had assumed the duties of
the office of the board, and without any investigation as to
the necessity for the employment of deputies in the sheriff's
office, and without any notice to the sheriff, and without
giving the plaintiff an opportunity to be heard, and without
making any findings as to the necessity of deputies in the
office of the sheriff of Whatcom county, and without
exercising any discretion in the matter, adopted the following
resolution:

"Whereas, the supreme court in interpreting the statute
of the state of Washington has said that it is the duty of
the county commissioners to not only fix the salaries of all
deputy county officers, but also to exercise their discretion in
the need and necessity for the services of such deputies; and

"Whereas, it is of the utmost importance that there
should be perfect harmony between the office of the sheriff
and that of the county attorney, to the end that all law
violators may be effectually and economically prosecuted; and

"Whereas, L. J. Flanagan, the chief deputy of the sheriff's
office, has not been, and is not now, working in harmony with
the office of the prosecuting attorney, and is not trusted by

                    THOMAS v. WHATCOM COUNTY.               115
 Oct. 1914               Opinion Per MAIN, J.

the prosecuting attorney in developing evidence in criminal
cases, especially for violations of the liquor laws; and

"Whereas, Emery Hess and Wilson Stewart, also deputies
in the office of the sheriff, are disposed to follow the
leadership of the said chief deputy in opposition to the efforts
of the prosecutor, and are not working in harmony with the
office of the prosecuting attorney; and

"Whereas, it is the belief of the board of county
commissioners that the services of said three present deputies, to
wit: L. J. Flanagan, Emery Hess, and Wilson Stewart, are
not conducive to the best interests of Whatcom county, and
their services are not needed or necessary, now,

"Therefore, be it resolved, by the board of county
commissioners of Whatcom county, Washington, in regular
session assembled, that we do not approve of said deputies and
that from and after this date their salaries as such deputies
shall cease, and that Whatcom county will not hereafter be
responsible for any salary for services performed by said
individuals as deputy sheriffs of Whatcom county, and

"Be it further resolved [hat the clerk of this board shall
forthwith serve a copy of this resolution upon L. A. Thomas,
sheriff of Whatcom county.

"Dated this 13th day of January, 1913.
                          "C. B. Legoe,
                     "Chairman of the Board.
                         "County Commissioner.
                     "Henry Shagren,
                          "County Commissioner."

No other action was taken by the board relative to the
number and salaries of the deputy sheriffs of the county. A
copy of this resolution was immediately served upon the
plaintiff as sheriff of Whatcom county. Thereupon he went
before the board on this 18th day of January, 1913, while
the board was in open session, and orally stated that he
desired to know whether the board intended to allow him any
deputies or assistants in the conducting of his office. In
response to this inquiry he was informed orally by C. B. Legoe
and Henry Shagren, two of the commissioners, that they
did not intend in any way to hamper him in the conduct of

 116    THOMAS v. WHATCOM COUNTY.
                     Opinion Per MAIN, J.                82 Wash

his office, and that the board was willing to allow and pay
salaries to three deputies and one jailer, and that the
plaintiff could appoint any one a deputy except the three
persons named. Notwithstanding the entry of the resolution
by the board, the plaintiff at all times permitted to be in
full force his commission appointing Flanagan, Stewart, and
Hess.

In order to conduct the business of the sheriff's office in
the county, it was necessary to have three competent
deputies. Pursuant to the appointment, the three persons named
continued to act as deputy sheriffs at all times during the
months of January, February, and March, 1913. On the
31st day of January, 1913, the plaintiff filed with the board
of county commissioners the payroll of his office for that
month. This payroll included the salaries of the deputies
mentioned, to wit, Flanagan, $100, Stewart, $75, and Hess,
$75. On February 3, 1913, the board refused to allow the
payroll for the salaries of these deputies from and after
January 13, 1913, but did allow the payroll up to that date.
On the same day, the plaintiff presented and filed with the
board a claim for expenses incurred by his office. This claim
showed the expenses incurred by the three deputies in the
performance of their duties, as follows: Flanagan, $16.80;
Stewart, $21.35; and Hess, $17.45. The board allowed
the claim for the expenses incurred by the deputy sheriffs.
On February 28, 1913, the plaintiff presented his payroll for
that month, which included the same salaries for the same
deputies. The board again refused to allow the payroll for
the salaries, but did allow the claim for the expenses incurred
by such deputies in the performance of their duties. On
March 31, 1913, the payroll was presented for that month,
and was likewise refused, but the expenses were allowed.

The above facts do not include those stated in paragraphs
three, four, and eleven of the second amended complaint. The
facts stated in these three paragraphs are that the plaintiff,
on November 8, 1910, was elected to the office of sheriff of

                     THOMAS v. WHATCOM COUNTY.               117
 Oct. 1914               Opinion Per MAIN, J.

Whatcom county, and qualified as such officer and entered
upon his duties on the 9th day of January, 1911, and
continuously thereafter during the years 1911 and 1912 acted
in such official capacity. During all of this time the
plaintiff employed three deputies and one jailer, this being the
amount of help necessary to conduct the business of his
office. The deputy sheriffs which he had in his employ during
this time were L. J. Flanagan, Wilson Stewart, and Emery
Hess. The salaries fixed by the board of county
commissioners of Whatcom county and paid to. these deputies
during the year 1912 were, per month, Flanagan, $100,
Stewart, $75, and Hess, $75. No formal order was ever made
and entered of record by the board of county commissioners
finding the necessity for three deputies in the sheriff's office
and fixing the salaries during the years 1911 and 1912. The
board, however, during this period, audited and allowed
payrolls of the office of the sheriff each month, in which the
salaries of the three deputies named were for the amounts
specified above. The board, for a period of more than eight years,
has allowed and paid salaries for assistants in the conduct of
the sheriff's office to three deputies and one jailer. The
amount allowed during this time was practically the same
as the salaries allowed the deputies during the years 1911
and 1912. During this time, however, no formal order was
made or entered by the board finding the necessity for the
employment of three deputy sheriffs and one jailer, and
fixing their compensation, except that the sheriff during this
time filed with the county auditor a certificate showing the
appointment of the deputies employed in his office, and the
board of county commissioners ordered and allowed the
payrolls upon such certificate of appointment. During all the
time mentioned, assistants and deputies have been employed
in each and all of the other county offices of Whatcom county,
and the board of county commissioners has never made or
entered any formal order finding the necessity for such
deputies or assistants or fixing their compensation. The

 118    THOMAS v. WHATCOM COUNTY.
                     Opinion Per MAIN, J.           82 Wash.

deputies in all the county offices have been paid salaries in
accordance with the payrolls presented for the various county
offices, and audited and allowed by the board of county
commissioners. The salaries claimed for the deputy sheriffs
mentioned for the months of January, February, and March,
1913, are the same as had previously been allowed to these
deputies continuously for a period of two years prior to
January 13, 1913, by the board of county commissioners.

A motion was interposed to strike from the second amended
complaint paragraphs three, four, and eleven. This motion
was granted. A demurrer was then filed and sustained. The
plaintiff refused to plead further, and elected to stand upon
his second amended complaint. Judgment was entered
dismissing the action. The plaintiff appeals.

There are three questions in this case: First, Had the
board of county commissioners, by its conduct prior to
January 13, 1913, found that three deputies were necessary to
the proper conduct of the sheriff's office, and fixed their
salaries? Second, If the board, by a course of conduct, had
determined that three deputy sheriffs were necessary, and
had fixed the salary of the chief deputy at $100 per month,
and each of the others at $75 per month, was this finding of
the board abrogated by the resolution passed on January 13,
193? And third, What are the respective functions of the
board of county commissioners and the duly elected and
qualified sheriff as to the number, the salaries of, and the
persons to be named deputy sheriffs?

I. The first question is whether the board of county
commissioners, prior to January 13, 1913, had, by a course of
conduct, found that three deputy sheriffs and one jailer
were necessary to the proper conduct of the sheriff's office.
No resolution to this effect had been passed by the board
and entered in the minutes. If the fact be that there was
such a finding, it must be by reason of the acts of the board
from which it may reasonably be inferred that such was the
finding. There being no record in the minutes upon the

                    THOMAS v. WHATCOM COUNTY.                119
 Oct. 1914               Opinion Per MAIN, J.

subject, it became a fact to be proved by evidence, such as any
other fact may be proved. In Robertson v. King County,
20 Wash. 259, 55 Pac. 52, the board of county commissioners
had informally authorized certain road work. After
the work had been done, an action was brought to recover
for the same. The trial court instructed the jury that if
the work had been authorized in an irregular manner, that
a recovery might be had, and that, in the absence of a record
upon the subject of what the board had done, it could be
proved by testimony, as any fact is proved that anybody
knows. This court, in passing upon the instruction, said:

"We cannot see, as asserted by the appellant, that this
instruction assumes any fact which was to be proven in the
case, and we think that it states the law. It is not the fault
of those who perform services for the county that the county
keeps no record of the authorization, and it would be
unjust to hold such persons responsible for the negligence of
the commissioners or their failure for any reason to keep
such record, and what was in fact done may be shown by
evidence aliunde the record, to have been done under all
authority."

If the facts stated in those paragraphs of the complaint
which were stricken are true, the board of county
commissioners, for a period of two years prior to January 3, 1913,
had monthly audited and allowed the sheriff's payroll for
three deputies and one jailer. The salaries allowed the
deputies during this time were the same as those involved in this
action. It is also alleged that, for a period of about eight
years, the board of county commissioners had audited and
allowed payrolls of the sheriff which included three deputies
and one jailer, and that the board of county commissioners
had not formally by resolution entered in its minutes
determined the number of deputies in any of the county offices nor
fixed their salaries, for a number of years prior to January
13, 1913, but had continuously audited and allowed payrolls
for the deputies in such offices. If these facts be true, it must
necessarily follow as a reasonable inference that the board

 120    THOMAS v. WHATCOM COUNTY.
                     Opinion Per MAIN, J.               82 Wash.

of county commissioners had determined that three deputies
and one jailer were necessary to a proper conduct of the
sheriff's office; otherwise the board would not have
continuously, month after month for a series of years, audited
and allowed payrolls for their services. Indeed, this is
recognized by the respondents in their brief, where it is
said, "It is fair to presume that while no formal order fixing
salaries for former sheriffs appears in the minutes of the
boards for the same periods, previous understandings
whereby the number of deputies were agreed upon had
been reached."

II. Since the acts of the board prior to January 13, 1913,
show that three deputy sheriffs and one jailer were necessary
to the proper conduct of the sheriff's office, the next question
is whether that finding had been abrogated or set aside by
the resolution, a copy of which appears in the facts stated.
The board of county commissioners act in an administrative
or executive capacity in the management of the affairs of the
county. This board has a continuous existence. While the
membership of the board may change from time to time, the
board continues notwithstanding the change in the
individuals who compose it. If there were a finding by the board
that three deputy sheriffs and one jailer were necessary to
the proper conduct of the sheriff's office, this finding would
not be abrogated by a change in the personnel of the board.
It was the act of the board, and would continue to be such
until it had been changed, altered, or abrogated by the
board. 11 Cyc. 380; Board of Com'rs of Pulaski County v.
Shields, 130 Ind. 6, 29 N. E. 385.

In the resolution referred to, after reciting that Flanagan,
as chief deputy, had not been and was not then working in
harmony with the office of the prosecuting attorney; that
Hess and Stewart, assistant deputies, were disposed to follow
the leadership of the chief deputy and were not working in
harmony with the office of the prosecuting attorney; and that
the services of the three deputies named were not conducive

                     THOMAS v. WHATCOM COUNTY.           121
 Oct. 1914                   Opinion Per MAIN, J.

to the best interests of Whatcom county and are not needed
or necessary, it was resolved "that we do not approve of said
deputies and that from and after this date their salaries as
such deputies shall cease, and that Whatcom county will not
hereafter be responsible for any salary for services performed
by said individuals as deputy sheriffs of Whatcom county."
This resolution, enlightened by the recitals in the preamble
thereto, makes it as plain as language well can, that the
object of the resolution was not to determine that three
deputies were not necessary, or that the salaries of such deputies
as previously fixed had been changed or altered. Its primary
purpose was to prevent the sheriff from appointing the three
deputies named. This is further made manifest by the
statements of the two members of the board to the sheriff, that
the board was willing to allow and pay salaries to three
deputy sheriffs and one jailer, and that he could appoint any
one as deputy, except the three persons named. That the
board did not intend to determine that three deputies were
not necessary is further evidenced by the fact that it
subsequently allowed the claims for expenses which these
deputies had incurred in the performance of their respective
duties. The resolution did not change the previous finding, as
established by the acts of the board, that three deputy
sheriffs were necessary; neither did it change the salaries
as previously determined.

III. Did, then, the board of county commissioners have a
right to determine that the sheriff could not appoint the
three persons named? In Rem. & Bal. Code, SS 4032 (P. C.
115 SS 7), which enumerates the county officers, and covers
the subject of salaries of deputies, it is provided:

"And in all cases where the duties of any office are greater
than can be performed by the person elected to fill the same,
said officer may employ, with the consent of the county
commissioners, the necessary help, who shall receive a just and
reasonable pay for services. The officer appointing such
deputies or clerks shall be responsible for the acts of such
appointees upon his official bond."

 122    THOMAS v. WHATCOM COUNTY.
                     Opinion Per MAIN, J.           82 Wash.

In Rem. & Bal. Code, SS 4065 (P. C. 115 SS 71), it is
provided that the salary allowed a county officer shall be full
compensation for all services rendered by such officer, with
the proviso:

"That in case the salaries herein provided for are, in the
judgment of the board of county commissioners, inadequate
for the services required of the officers named herein, then
the said board of county commissioners may allow such
officer a deputy, or such number of deputies as, in their
judgment, may be required to do the business of such office in
connection with the principal, for such time as may be
necessary, and at such salary as they may designate; . . ."

In Dillon v. Whatcom County, 12 Wash. 391, 41 Pac. 174,
this court had occasion to consider these statutory
provisions, the question being what were the respective functions
of the county officer who needed deputies, and the board of
county commissioners, with respect to the number of deputies, the
salaries to be paid, and the persons to be appointed.
In that case, three things were determined: First, that the
number of deputies was to be determined by the board; second, that
the salaries were to be fixed by the board; and third,
that the officer had the right to determine who the deputy,
assistant, or clerk should be. It was there said:

"It is contended by the respondent that these two
sections [General Statutes, SS SS 2973, 3003] should be construed
in pari materia; but even construing them thus, it would
seem that the statute went no further than to allow the
officer to name the employee, when it had been determined by
the board of commissioners that such employment was
necessary. Inasmuch as the officer is responsible on his bond for
the delinquencies of the appointee, this is no more than a
fair provision of the law. But we think that it cannot go
beyond this. The whole question of employment outside of
the person of the employee seems to be submitted to the
judgment of the board of county commissioners by language
which is inconsistent with any other thought than that of
direction by the commissioners. In the first place, it
provides that if the salary, 'in the judgment of the board,' is
inadequate; and as indicating the vesting of discretion no

                     THOMAS v. WHATCOM COUNTY.               123
 Oct. 1914                   Opinion Per MAIN, J.

stronger words could be used. Again, 'the said board of
county commissioners may allow such officer a deputy.' The
word 'allow' naturally conveys the idea of permission upon
the part of the county commissioners; not of consultation or
agreement or a division of responsibility, but purely a
permission. Again, the law provides further that as to the
number of these deputies the judgment of the board of county
commissioners is to be exercised, and it specially provides
that the salary of such help shall be such a salary as the
board may designate."

It is true the county in that case was held not liable. But
the facts there are very different from those in the present
ease. There the board of county commissioners had, by
formal resolution entered in its journal, determined that no
clerks should be employed in certain of the county offices, and
had fixed the salary of the deputy in each at the sum of $5
per month. Notwithstanding this resolution, and in
violation thereof, the county auditor employed certain clerks and
a deputy at a salary greater than $5 per month. The
commissioners refused to audit and allow his payroll. Action
was brought against the county, claiming that the services
of the clerks and the deputy hired were necessary to the
proper conduct of his office. There was there no attempt
on the part of the board of commissioners to determine who
should or should not be appointed a deputy in the clerk's
office. If a deputy were appointed by the auditor, his salary
was fixed at the sum of $5 per month. In the present ease,
the board attempted to determine that certain persons should
not be appointed deputies in the sheriff's office. In the Dillon
case, the board in finding that no clerks were necessary and
fixing the salary of the deputy, was exercising powers
conferred upon it by statute. In the present ease, the board,
in attempting to determine that certain persons should not
be appointed deputy sheriffs, was invading the power
conferred by statute upon the sheriff.

Our conclusion is, first, that the facts stated in the three
paragraphs of the second amended complaint stricken show

 124    STATE EX REL. FISHBACK v. GLOBE CASKET ETC. CO.
                          Syllabus.                     82 Wash.

a course of conduct which fixed the number of deputies and
determined their respective salaries; second, that the
resolution of January 13, 1913, did not abrogate or change the
previous finding of the board; third, that the board has the
right to determine the number of deputies in county offices
and fix their salaries; fourth, that the officer in whose office
the deputies are to serve, being responsible on his bond for
their conduct, has the absolute right to determine the personnel
of such deputies; fifth, that the court erred in striking
the three paragraphs mentioned from the complaint; and
sixth, that the second amended complaint, with the
paragraphs stricken included therein, stated a cause of action.

The judgment will be reversed, and the cause remanded
for further proceedings.

CROW, C.J., ELLIS, GOSE, and CHADWICK, JJ., concur.