Chehalis County v. Hutcheson

'The opinion of the court was delivered hy

Reavis, J.

Action by Chehalis. county to enjoin the payment of county warrants issued to appellant as county ¡superintendent in payment for visiting county schools. Appellant was superintendent of the county schools of the county from January, 1893, to January, 1897,. and during that time filed itemized claims for which the warrants in question were issued, claiming three dollars for each- school visited, and mileage at the rate of ten cents per mile for each mile necessarily traveled- in making, such visits. There is no controversy here with reference to-mileage. The claims were regularly allowed by the board of county commissioners and warrants issued thereon by thauditor. The complaint alleges that the -warrants, so far as based on the visits, were void, and prays to have-them .adjudged void and canceled. A demurrer to -the complaiwas overruled and the answer set up-that the-visits were añade and the distance traveled at great expense; as charged in the respective claims; set up that the county embraced a large area of. heavily timbered country, traversed by many rivers; that the roads were po,or, and that it was. very expensive traveling; and also that the board of county commissioners had represented to appellant that he would be paid the three dollars for each school visited; that it had been the custom of the commissioners to allow such payment to the county superintendent and allow such claims from time to time, and that appellant, relying on-the provisions of the law then in force and the representations of the board of commissioners and of like boards throughout the state, made the visits to the schools of his. county as often as necessary. The superior court adjudged the warrants which are unpaid, in so far as they are based on charges of three dollars for each school visited, to be-void and canceled.

In the case of Cox v. Holmes, 14 Wash. 255 (44 Pac. 262), decided in March, 1896, it was determined that,, under art. 11, § 8, of the constitution, providing that the-legislature shall fix the compensation by salaries of all county officers except certain enumerated ones, the provisions contained in Laws 1890, p. 361, § 17, providing-that the county superintendent shall receive compensation at the rate of three dollars for each school visited, are-invalid. . But the main contention of appellant here is. that, though the statute directing the allowance by the-county board of three dollars for each school visited was-invalid, because in conflict with the constitution, yet the county board having agreed before the services were performed to make such allowance, and having thereafter duly audited and allowed appellant’s claim, the subsequent decision that the statute was unconstitutional should not affect the validity of his warrants, and contends that the-county is estopped from questioning their validity. Authorities are cited approving the principle that, when. contracts are made by individuals under an invalid law, the subsequent declaration of its invalidity will not change the relation of the parties under the contract, and that an estoppel arises in favor of the one claiming rights under such contract, and that, where such contracts are performed, the subsequent declaration of the invalidity of the statute will not affect the parties to them; and this is undoubtedly the rule. But a different question is presented here. If there is an original lack of authority upon the part of the board of county commissioners to make an agreement to pay for visiting schools, then such contract is void ab initio; and likewise if there existed no power on the part of the board to allow appellant’s claim of three dollars for each school visited, it is void, and the county is not estopped. The ground of this rule is that the acts of its officers are unauthorized and void, and that one dealing with them is bound to take notice of the extent of their powers. In 2 Herman on Estoppel, p. 1365, it is observed :

“ The true principle in such cases is well settled that one cannot do indirectly, what cannot be done directly, and, where there is no power or authority vested by law in officers or agents, no void act of theirs can be cured by aid of the doctrine of estoppel. Where there is power, and it is irregularly exercised, or there are defects and omissions in exercising the authority conferred by law, the doctrine of equitable estoppel may well be applied by courts.”

In the case at bar the board of county commissioners, the agents of the county, were without authority, because restricted by the constitution, to make a contract with appellant to pay him three dollars for each school that he visited. The same want of authority existed to audit and allow a claim for such services under the invalid statute; and under well settled principles, from which the court cannot depart, the county is not estopped by the unauthorized acts of its agents.

The judgment of the superior court is therefore affirmed.

Dunbar, Fullerton and Anders, JJ., concur.