Daniel v. Daniel

• Decision Date: 10 June 1921
• Docket Number: 16166.
• Citation: 198 P. 728,116 Wash. 82
• Parties: DANIEL v. DANIEL.
• Court: Washington Supreme Court

198 P. 728

116 Wash. 82

DANIEL v. DANIEL.

No. 16166.

Supreme Court of Washington

June 10, 1921

Department 1.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Action by Hazel Daniel against J. I. Daniel. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 194 P. 376.

Cyrus Happy and O. C. Moore, both of Spokane, for appellant.

Geo. W Belt and Fred M. Williams, both of Spokane, for respondent.

FULLERTON J.

This is an appeal from a judgment entered upon an accounting. The case prior hereto was before us on another aspect, and will be found reported in Daniel v. Daniel, 106 Wash 659, 181 P. 215. In the cited case we affirmed the trial court, which adjudged that the respondent was the owner of an undivided one-twelfth interest in certain real property situated in the city of Spokane, and was entitled to an accounting for a one-twelfth interest in the rents, issues, and profits thereof during the time her interests were withheld from her by the appellant. The amount found to be due was the sum of $24,530, and for this sum the judgment appealed from was entered.

After the cause had been remanded on the first appeal, the trial court appointed a referee to take the accounting. It is contended that this was beyond the power of the trial court, and that, in consequence, all proceedings had thereunder are null and void. In the language of the appellant's learned counsel:

'Our Constitution does not provide for the appointment of a referee, but clearly contemplates that all judicial proceedings shall be either in one of the courts provided by the Constitution or before a court commissioner, for the appointment of which provision is made by the Constitution. We therefore contend that the order of reference, made without consent of appellant, and all proceedings thereunder are illegal and without judicial force or effect.'

The provisions of the Constitution cited as the foundation for the contention are sections 1, 6, and 23, of article 4 of that instrument. The first of these sections vests the judicial power of the state in a Supreme Court, superior courts, justices of the peace, and such inferior courts as the Legislature may provide. The second of the sections defines the jurisdiction of the superior courts, and the third empowers the superior court to appoint court commissioners, and defines their powers and duties when so appointed. We cannot think these sections have a bearing upon the question suggested. They but create the courts and define their jurisdiction; in no way do they purport to regulate or control the manner in which the courts shall exercise jurisdiction. The latter is left an a prerogative of the courts themselves, and of the lawmaking power, and can be lawfully exercised in any manner which the Constitution does not directly prohibit. The Legislature has acted on the matter.

By the Code (Rem. § 369 et seq.) it is expressly provided that a compulsory reference may be had where the issues involve a long account on either side. It is true the statute was actually enacted prior to the formation and adoption of the Constitution, but that instrument itself provided (section 2, art. 27) that----

'All laws now in force in the territory of Washington which are not repugnant to this Constitution shall remain in force until they expire by their own limitation, or are altered or repealed by the Legislature.'

The law has not expired by any limitation, nor has it been altered or repealed by the state Legislature. We are clear also that the statute is not repugnant to the Constitution. To refer a cause involving the taking of an account to a master has from the earliest times been the recognized practice of the courts of chancery, and in all of the American states to which our attention has been directed, where the legal and chancery powers are exercised by the same tribunal, statutes have been enacted authorizing such a reference. These statutes, with substantial uniformity, have been upheld by the courts. In this state the practice has been repeatedly exercised since the adoption of the Constitution, and in at least two instances we have held a compulsory exercise of the power within the province of the court. Lindley v. McGlauflin, 57 Wash. 581, 107 P. 355; Poultry Producers' Union v. Williams, 58 Wash. 64, 107 P. 1040,

137 Am. St. Rep. 1041. In neither of these cases, it may be conceded, was the precise question suggested, but we cannot think that this fact destroys the cases as authority. We cannot conclude, therefore, that the court acted without its powers in directing a compulsory reference.

In the early part of the period over which the appellant was compelled to account for the profits of the premises, and the period during which the greater gains therefrom were derived, the premises were leased to women engaged in the practice of prostitution, to be used for such practices. It is urged that this use of the premises was contrary to public morals, and in consequence the court should not compel an accounting for profits so derived, as to do so would be in effect to recognize and enforce an illegal transaction. There are courts which maintain the principle that a division of profits arising from an illegal or immoral transaction will not be enforced between participants therein, even though the transaction has been completed and closed, and nothing is asserted but the title to money which has arisen from the transaction. But this conclusion is opposed by some courts, if not a majority, and we have heretofore aligned ourselves with the opposing courts. McDonald v. Lund, 13 Wash. 412, 43 P. 348; Standard Furniture Co. v. Van Alstine, 31 Wash. 499, 72 P. 119; Stirtan v. Blethen, 79 Wash. 10, 139 P. 618, 51 L. R. A. (N. S.) 623.

We cannot, however, concede that the present case falls within the rule sought to be invoked. The respondent was in this instance in no sense a party or privy to the illegal transaction through which the profits she seeks to recover were gained. At the time they were gained the appellant was holding and managing the property as his own, without recognition of any right therein in the respondent, and it was wholly because of his individual act that the property was put to an immoral use. To require him to account for the profits gained is not, therefore, to enforce an illegal transaction to which the respondent was at one time a party it is but to require him to account for money acquired by the wrongful use of her property. To refuse to require the accounting would be to punish the innocent, rather than the guilty party, and this is not the purpose of the rule relied...