ents. John H. Dunbar and M. H. Wight, both of, therefrom for that purpose, giving as his reaOlympia, for relator. son for such refusal that the 1923 biennial Thos L. O'Leary, of Olympia, for respond-appropriation of $4,000,000 had been exhausted. as Respondent Babcock, state treasurer, has given relator positive notice and warning that he will not pay any warrants drawn or issued by the state auditor which will cause the expenditure from the accident fund for the fiscal year of 1925 to exceed the $4,000,000 appropriation, without further appropriation by the Legislature. There is now in the state treasury belonging to the accident fund a sum largely in excess of sufficient to pay the voucher and claim here in question, such sum having been received in pursuance of law as contributions to that fund from employers of workmen in extrahazardous occupations. PARKER, J. The relator, Shuff, as director of the department of labor and industries of this state, having general supervision and control over the division of industrial insurance of that department, seeks in this court a writ of mandamus to compel respondent Clausen, as state auditor, to audit a duly authenticated voucher transmitted to him by the department of labor and industries evidencing due allowance of a claim of an injured workman, payable from the accident fund of that division, and also to compel respondent Babcock, as state treasurer, to pay such warrants from moneys collected from employers of labor in extrahazardous occupations and in the state treasury belonging to that fund. insists that it is the duty of respondents, respectively, to audit such claims, when filed and duly authenticated, to issue warrants to the claimants therefor and to pay such warrants from any moneys in that fund, regardless of any biennial legislative appropriation therefor from that fund; while respondents insist that there is no present authority for lawfully issuing any such warrants or paying the same, because the leg-able for the payment of such warrant. As to islative biennial appropriation of 1923 made for that purpose from the accident fund has become exhausted by the payment of warrants heretofore lawfully issued against and paid from that fund. Relator [1] We first inquire as to the duty of respondent auditor in the premises. Is it his duty to audit a voucher such as is here drawn in question, and, if found by him to be duly authenticated, to issue a warrant therefor against the accident fund in favor of the claimant, though there be no legislative appropriation from that fund for the payment of such warrant? In seeking an answer to this particular inquiry we shall assume that there is no legislative appropriation of any nature from the accident fund avail whether or not there is in legal effect any such appropriation, and as to whether or not any such appropriation is necessary, to authorize respondent treasurer to pay such a warrant from moneys in the accident fund The case is submitted to us for final de-. we shall presently inquire. While section 4 cision upon the admitted facts appearing in of article 8 of our state Constitution provides that "no moneys shall ever be paid out of the relator's petition for the writ, to which retreasury of this state, or any of its funds, or spondents have demurred. The Legislature of 1923 appropriated from the accident fund any of the funds under its management ex$4,000,000 to be expended under the direction cept in pursuance of an appropriation by of the director of labor and industries for law," we are not aware of any constitutional the fiscal term beginning April 1, 1923, and limitation upon the power of the Legislature ending March 31, 1925. Chapter 40, Laws to authorize the allowing and auditing of 1923. During the period of this fiscal term claims of this nature and the issuance of up to September 18th of the present year warrants for the amounts so allowed and there has been expended from the accident audited to the claimants, directing the treasurer to pay such warrants from funds which fund in pursuance of that appropriation approximately the whole amount thereof, the may become available for that purpose, very small balance of the appropriation being though at the time there be no funds lawtreated by all parties as negligible. On Sep-fully available for that purpose, because of tember 18, 1924, relator, as director of the department of labor and industries, caused to be transmitted to respondent Clausen, as auditor, a voucher evidencing the allowance of a just and legal claim payable out of the accident fund, and requested respondent, as auditor to audit the same and issue a warrant to the claimant therefor against the accident fund for the amount therein stated.uary 15th of each year, pay into the state treasRespondent refused to audit the voucher ury, in accordance with the following schedso transmitted to him, and advised the re"Sec. 7679. Each workman who shall be inlator that he would not issue any further jured whether upon the premises or at the warrants against that fund until the state plant, or he being in the course of his employLegislature made a further appropriation | ment, away from the plant of his employer, or want of legislative appropriation therefor. What, then, has the Legislature authorized in this behalf? In our Workmen's Compensation Act referring to sections of Remington's Compiled Statutes, we read: "Sec. 7676. Insomuch as industry should bear the greater portion of the burden of the cost of its accidents each employer shall, prior to Jan ule. ** (229 P.) his family or dependents in case of death of, moneys available for its payment because of the workman, shall receive out of the accident want of a legislative appropriation. fund compensation in accordance with the following schedule. * * * "Sec. 7703. The director of labor and industries shall, in accordance with the provisions of this act: * "(2) Ascertain and establish the amounts to be paid into and out of the accident fund. * "(5) Issue proper receipts for moneys received, and certificates for benefits accrued and accruing." "Sec. 7705. Disbursement out of the funds shall be made only upon warrants drawn by the state auditor upon vouchers therefor transmitted to him by the department and audited by him. [2] We next inquire as to the duties of rebe his duty, as his counsel contends, to respondent treasurer in the premises. Will it fuse to pay from moneys in his custody in the state treasury belonging to the accident fund, the warrant to be duly issued by respondent auditor against that fund in compliance with our above holding? It is contended in behalf of relator in substance that there has, in legal effect, been made by the Legislature an appropriation of moneys in the state treasury belonging to the accident fund, such as to authorize the payment of warrants of this nature from any moneys in that fund. One argument, as we understand Some of these sections have been amended since the original enactment of our Work-counsel for relator, advanced in that behalf, men's Compensation Act in which they are found, but such amendments do not change any of the language above quoted, in so far as such language is of any controlling effect upon our present inquiry. In section 11015, Rem. Comp. Stat., relating to the duties of the state auditor touching the issuance of warrants for claims allowable and payable out of funds in the state treasury, we read: "In all cases of grants, salaries, pay, and expenses ascertained and allowed by law, found due to individuals from the state when audited, the auditor shall draw a warrant upon the treasury for the amount, but in cases of unliquidated accounts and claims the adjustment and payment of which are not provided by law, no warrant shall be drawn by the auditor or paid by the treasurer, unless the previous appropriation shall have been made by law for that purpose. is that the provisions of our Workmen's Com- words: "There is hereby appropriated out of the accident fund for the purpose to which said fund is applicable the sum of one million five hundred thousand dollars, or so much thereof as shall be necessary for the purposes of this act." Sec. 7708, Rem. Comp. Stat. See chapter 74 of the Laws of 1911, in sections 4, 5, 24, 26, and 29. These statutory provisions, we think, fully authorize the allowing and auditing of claims of the nature here drawn in question and the further evidencing of the right of claim[3] Plainly, we think the specific approants in that behalf to the amounts so al- priation made by the above-quoted language lowed and audited by the issuance of war- of section 7708 of the original act, which rants therefor against the accident fund, re- manifestly was intended merely as a biengardless of whether or not there be any ap-nial appropriation, negatives any possible inpropriation from the accident fund available ference of intent on the part of the Legislafor the payment of such warrants. We think ture, deducible from the general language that such a claim, when allowed by the de- of the act, to make or attempt to make a partment of labor and industries in pur- continuing appropriation or any appropriasuance of our Workmen's Compensation Act tion in excess of the $1,500,000 so specifical against the accident fund, becomes a claim ly appropriated. That specific appropriation, which is a "grant" or "pay as of course, has long since lapsed as a biencertained and allowed by law" within the nial appropriation, and in any event must, meaning of the language of section 11015 in the light of this record, be considered as above quoted. Our decision in State ex rel. no longer available. It is worthy of some Helander v. Clausen, 98 Wash. 253, 167 Pac. note in this particular that at each session 947, it seems to us, is decisive in favor of of the Legislature since the passage of the relator upon this question. Our prior de- original act in 1911 a specific biennial apcisions having some bearing upon the ques-propriation has been made from the accident tion are cited and reviewed in that decision. fund for the payment of claims of the naWe conclude that it is the duty of respond-ture here involved. This also evidences a ent auditor to audit the claim in question, legislative construction of the original act and, if found duly authenticated, to issue a warrant against the accident fund therefor in favor of the claimant, though there be no as not being an attempt to make a continuing appropriation. This, while not of itself controlling upon the courts, is entitled to some persuasive weight in support of our present construction of the original act touching the question of continuing appropriation. [4] It is further argued in behalf of relator that by reason of the trust nature of the accident fund and the particular purpose for which it is collected from employers of labor in extrahazardous occupations, no express biennial legislative appropriation is necessary to authorize the paying from the fund of warrants of this nature, since it would be but paying such warrants from the very funds collected for that sole purpose. Viewed superficially, this might seem somewhat persuasive in relator's favor; but it seems to us that an insurmountable obstacle to the paying of such warrants, in the absence of a biennial appropriation rendering the funds available for such purposes, is found in section 4 of article 8 of our state Constitution, reading as follows: "No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years from the first day of May next after the passage of such appropriation act. * * Now, by the plain language of section 7676 above quoted, the funds in question and here sought to be reached are funds payable into the state treasury, and therefore these funds are in the state treasury by authority of express legislative enactment. How, then, is it possible to pay such funds out of the state treasury, except in pursuance of a biennial appropriation as prescribed by the constitutional provision above quoted? Counsel for relator cite and rely upon our decisions in State ex rel. Johnson v. Clausen, 51 Wash. 548, 99 Pac. 743; State ex rel. Sherman v. Pape, 103 Wash. 319, 174 Pac. 468; State ex rel. Thompson v. Powell, 108 Wash. 561, 185 Pac. 573; State ex rel. Sherman v. Benson, hands of and management of the members of the veterans' welfare commission. The fourth of these decisions related to funds lawfully in the hands of and authorized by law to be expended by the state fair commissioners. In other words, in none of these cases was it a question of an appropriation or the necessity of an appropriation of moneys which went into the state treasury in pursuance of legislative enactment. This, we think, distinguishes all these cases from the one now before us. We conclude that there rests upon the respondent treasurer the legal duty of refusing to pay from the accident fund any warrant of the nature here in question, in the absence of an express legislative appropriation from that fund rendering it, or some portion of it, available for the payment of such warrants. It is not suggested that there has been made any appropriation for the present biennium other than the $4,000,000 appropriation of the Legislature of 1923 above noticed, which appropriation has been exhausted. It is therefore apparent that at the present time there is no appropriation from which the payment of such warrants can lawfully be made. Of course, this does not mean that the claimants in whose favor such a warrant may be issued will not ul timately receive payment thereof. It only means that the claimant or the holder of the warrant will have to await such payment until the Legislature makes the necessary apwhether or not the Legislature has the powpropriation therefor from the accident fund. er to provide for the collection, custody and distribution of the accident fund in such manner that payments therefrom will not be dependent upon express legislative appropriations, and whether or not such funds being in the state treasury as these funds are, calls for biennial appropriations in specified sums rather than biennial appropriations appropriating all such moneys to the thority and are not appropriated, from which 111 Wash. 124, 189 Pac. 1000. The first of these decisions had to do with the withdraw-payment of such claims and warrants, we are ing of funds from the state treasury' which were not there in pursuance of law, but which should have been in the possession of the treasurer of the board of regents of the state college, which funds had been paid into the state treasury by mistake. So it was not a question of payment from the state treasury of funds which the state treasurer was entitled to hold as against the treasurer of the board of regents. It was merely held that the state auditor was required to is- trol over the payment of warrants of the na not at this time called upon to decide. It is enough for present purposes for us to know that the funds sought to be reached are in the state treasury by express legislative auit follows that they cannot be paid out, except in pursuance of an appropriation as specified in the constitutional limitation above quoted; all of which means simply that the Legislature has to this extent retained con ture here in question. It is ordered that a writ of mandate issue sue his warrant upon the state treasurer to the end that those funds be restored to their lawful custodian, the treasurer of the board as prayed for against respondent state auof regents of the state college. The second ditor, and that the prayer for a writ of of these decisions related to funds authoriz- mandate as against respondent state treasurer be denied. ed by law to be paid by county officials direct to the state forester as the custodian thereof. The third of these decisions related to funds authorized by law to remain in the MAIN, C. J., and BRIDGES, TOLMAN, and PEMBERTON, JJ., concur. (229 P.) does not show that they did so. But the court CHAMBERS et al. v. KENT LUMBER & TIM- gave the contract that interpretation put upBER CO. (No. 18462.) Master and servant 80(10)—Evidence held to sustain judgment for commission for selling lumber. on it by the appellant's officer who executed the agreement on its behalf. Speaking of the Imanner in which the business was conducted, in his direct testimony he used this language: "Well, the way the lumber business is usually Evidence held to sustain judgment for plain-carried on, at any rate to a great extent, is tiff in action for commissions earned in selling lumber for defendant pursuant to contract. Curtis R. Hay was such a commission man. through the employment of commission men. Prices are sent out by either the wholesalers or the mills each week, or sometimes oftener, and the commission salesmen send out their list, representing to the general retail trade that Business is ob they represent a certain concern on the Coast, and the wholesaler or mill here pays those com- In his cross-examination he further stated: "You take such a concern, we will say, as Curtis R. Hay; previous to the signing of this contract, that concern was soliciting business for probably one or two wholesale concerns, or maybe they had a good mill connection or someCompany, out here, a good big mill. The price thing, like Bloedel-Donovan, or the Carlyle lists are submitted to them once each week, and they travel over the country and get an order, and they may have two or three connections, and suppose some wholesaler on this particular order has a little better price; that wholesaler is going to get that order, the chances are. If one mill is holding up prices pretty well, they will send it to the cheapest man they have on their list. Pretty near every one of those commission concerns work with one or more concerns at all times. That is the reason we wanted this contract with Hay; we wanted personal representation; we wanted a man to work for us exclusively." PER CURIAM. The appellant, Kent Lumber & Timber Company, having its principal place of business at Seattle, Wash., entered into a contract with Curtis R. Hay, of Cedar Rapids, Iowa, wherein Hay agreed "to give the services of two men, one being Curtis R. Hay, in the representation" of the appellant "for the sale of their Pacific Coast lumber in Iowa," and wherein the appellant agreed to pay him for the services rendered the sum of $400 per month. The contract contained an exception to the effect that Hay could sell yellow pine lumber, Inland Empire lumber, and cedar shingles for other shippers. Hay entered upon the performance of the contract, and continued therein until the contract was mutually terminated. He claimed that he earned under the contract the sum of $1,070, of which the appellant paid $135. He assigned his claim for the balance due thereon, $935, to the respondent C. C. Chambers, who brought the present action to recover in The evidence clearly shows that Hay per that amount. The cause was tried by the formed the contract in the manner the witcourt below sitting without a jury. The ness pointed out. He not only sent the price court found that the contract was terminated lists furnished him by the appellant to the on April 25, 1921, that Hay had fully per-retail dealers generally, but visited numbers formed the contract, and had earned there- of them in person, and employed another, under $603.33, and, after crediting thereon the amount of the payment, allowed a recovery of $468.33. The appellant takes the view that the trial court misconstrued the contract, and that its finding to the effect that the contract was fully performed by Hay is based on this misconstruction. Its counsel contend that the agreement was that Hay and one other would devote their entire time in an endeavor to sell the appellant's products, while the evidence who engaged in a like service. It is true that they were not very successful in making sales, but the failure does not appear to have been from lack of endeavor. Aside from the general business depression then prevailing, the prices at which he was permitted to sell the appellant's products did not enable him to compete with other dealers. We find no reason for overturning the judgment of the trial court, and it will stand affirmed. For other cases see same toplo and KEY-NUMBER in all Key-Numbered Digests and Indexes 10 cove or bay at the southerly end of Lake Washington. Such proceedings and trial, as prescribed by the statute relating to such controversies, were had, resulting in a decree SEATTLE FACTORY SITES CO. et al. v. (Supreme Court of Washington. Oct. 6, 1924.) of the superior court establishing the bound I. Boundaries 30-All owners of shore land in cove with irregular curvature proper parties to action to establish boundaries. Where separate conveyances from the state to the numerous owners of upland on a cove of a navigable lake of the shore lands in the cove in front of the grantees' respective uplands fails to give the side lines, and their location is further uncertain because of irregularly curved shore, a determination of the location of one such line is dependent on, and calls for, a determination of the location of all, so that to an action, under Rem. Comp. Stat. § 947, for establishment of any such uncertain boundary the owners of all the tracts are proper parties. 2. Appeal and error 544(1)-Certificate of all evidence necessary for review of question of fact. Whether evidence was uncertain as to boundaries presents a question of fact, which the appellate court cannot consider, in the absence of a statement of facts certified as containing all the evidence. Department 1. aries between each of the tracts of shore land of the several parties to the action, from which the defendants Saulsberry and Mattson have appealed to this court. The facts as alleged in the complaint, so far as we need here notice them, may be summarized as follows: The lands in question are a large number of tracts of shore lands of Lake Washington lying in a cove or bay with irregularly curved shores between two projecting headlands at the southerly end of the lake. Each of the numerous parties to the action separately owns one or more of the several tracts of shore land under separate conveyances from the state of Washington. None of the shore lands so owned by appellants directly joins any of the shore lands owned by the plaintiffs. It is alleged in the complaint: "XV. That as shown by the state deeds conveying said second class shore lands to plaintiffs and defendants respectively, or their predecessors in interest, the same did not define, or Appeal from Superior Court, King County; undertake to define by course or distance, the Smith, Judge. Action by the Seattle Factory Sites Company and others against George W. SaulsFrom the decree the berry and others. named defendant and another appeal. Af firmed. H. E. Foster, of Seattle, for appellants. Battle, Hulbert, Gates & Helsell, Stratton & Kane, and Paul W. Houser, all of Seattle, for respondents. side lines, or even the outer lines, of the shore lands so conveyed, but that the said different grants only described the property as shore lands of the second class owned by the state of Washington, situate in front of, adjacent to or abutting upon the upland in said respective deeds mentioned, and that under the law and the decisions of the courts of this state the outer or exterior boundaries of said shore lands are coterminous with said inner harbor lines. "XVI. That it has been found impossible for two or more of said shore land owners to agree, and they cannot agree, upon the division or PARKER, J. The plaintiffs, Seattle Fac-boundary side lines or the establishment thereof tory Sites Company and others, commenced this action in the superior court for King county against the defendants George W. Saulsberry, C. V. A. Mattson, and others, under the provisions of section 947, Rem. Comp. Stat., reading as follows: "Whenever the boundaries of lands between two or more adjoining proprietors shall have been lost, or by time, accident, or any other cause shall have become obscure or uncertain, and the adjoining proprietors cannot agree to establish the same, one or more of said adjoining proprietors may bring his civil action in equity, in the superior court for the county in which such lands, or part of them, are situated, and such superior court, as a court of equity, may, upon such complaint, order such lost or uncertain boundaries to be erected and established and properly marked." between their respective tracts of said shore lands, because of the complexity involved in the practical application of the rules of law applicable thereto, and also because to so agree would leave undetermined and in dispute the boundary line between such parties and the next adjoining owner of such shore land, and that the determination of one side of the boundary line necessarily involves the determination of the opposite or other boundary line. "XVII. That the above-stated condition has resulted in disputes between some of the owners of said shore lands as to the true location of the boundary lines as to the several and numerous tracts of said shore lands, and that the entire matter of the boundary lines of said several and numerous tracts of said shore lands, and as to what rule or principle of law is properly applicable thereto, is uncertain, resulting in claims and contentions by the parties in interest, which constitutes clouds upon the title of A decree is sought establishing the boun- these plaintiffs, and likewise upon the titles of daries between each and all of the tracts of shore lands owned severally by each of the numerous plaintiffs and defendants abutting on their respective uplands on and around a defendants. "XVIII. That said disputes and uncertainties not only cast clouds upon said titles but will result in frequent and numerous suits to settle said boundary lines, unless said boundary lines For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |