Jones v. Reed

• Decision Date: 07 November 1891
• Citation: 3 Wash. 57,27 P. 1067
• Parties: JONES v. REED, STATE AUDITOR, ET AL.
• Court: Washington Supreme Court

27 P. 1067

3 Wash. 57

JONES v. REED, STATE AUDITOR, ET AL.

Supreme Court of Washington

November 7, 1891

Appeal from superior court, Pierce county; F. CAMPBELL, Judge.

Suit by W L. Jones to restrain T. M. Reed, state auditor, A. A Lindsley, state treasurer, and others from an alleged misappropriation of the public funds. The injunction was granted, and defendants appeal. Reversed.

HOYT J., dissenting.

Page Turner & Graves and W. C. Jones, for appellants.

Crowley & Sullivan and Snively, Reavis & Whitson, for respondent.

DUNBAR, J.

The first proposition urged by appellants is that, under the provisions of the constitution of this state, the superior court has no jurisdiction to entertain proceedings by mandamus against state officers to compel their performance of any official act; and, as the writ of injunction is in every respect the correlative of the writ of mandamus, it follows that it has no jurisdiction to enjoin state officers in cases of this kind. We do not think this contention can be maintained. All that is decided in Board of Liquidation v. McComb, 92 U.S. 531, cited by appellants on the point, is that in certain cases probably analogous to this, writs of mandamus and injunction are somewhat correlative to each other. But the truth of this proposition may be granted without affecting the question of jurisdiction under our constitution. Section 4 of article 4 of the constitution provides that the supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings, (with a $200 limitation in civil actions for the recovery of money.) We know of no cases where a constitutional provision of this kind has been construed to confer exclusive jurisdiction. It is a grant of original jurisdiction, but there is nothing in the language of the grant to convey the idea of exclusiveness, or to exclude the idea of concurrent jurisdiction. In Delafield v. State, 2 Hill, 159, and a well-considered case, the court says: "There is nothing in the nature of jurisdiction, as applied to courts, which renders it exclusive. It is not like a grant of property, which cannot have several owners at the same time. It is matter of common experience that two or more courts may have concurrent powers over the same parties and the same subject-matter. Jurisdiction is not a right or a privilege belonging to the judge, but an authority or power to do justice in a given case when it is brought before him. There is, I think, no instance in the whole history of the law where the mere grant of jurisdiction to a particular court, without any words of exclusion, has been held to oust any other court of the powers which it before possessed." In Courtwright v Mining Co., 30 Cal. 573, it is held that the grant of original jurisdiction to a particular court of a class of cases, without any words excluding other courts from exercising jurisdiction in the same cases, does not necessarily deprive other courts of concurrent jurisdiction in such cases. To the same effect is Ames v. State, 111 U.S. 449, 4 S.Ct. 437; U.S. v. State, 123 U.S. 32, 8 S.Ct. 17; Bors v. Preston, 111 U.S. 252, 4 S.Ct. 407. In fact, we think the universal current of decisions is that way, and that no cases can be found holding otherwise, excepting in a few instances where, under constitutional provisions giving original jurisdiction, congress has by law made the jurisdiction of the federal courts exclusive; but they were cases which were peculiar to and sprung out of the very existence of the federal government, and the doctrine of exclusiveness in those cases is discussed from altogether a different stand-point, and involves altogether a different principle. But we do not base our judgment in this case entirely on authority, so far as the construction of section 4 is concerned; for the same fundamental law that grants the original jurisdiction to the supreme court is not silent as to the original jurisdiction of the superior court; and section 4 must not be construed as an independent section, but must be construed in connection with section 6, which, among other things, provides that the superior court shall also have original jurisdiction in all cases and all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court. Had the language of the constitution been that the superior court shall have "exclusive" original jurisdiction, etc., employing a word not uncommon in conferring jurisdiction on courts, there would not be much room for construction; but as the framers of the constitution did not see fit to use such a word, or any other word tending to confer exclusive jurisdiction, there is still, it seems to us, about as little room for construction. The language employed is in perfect harmony with the idea of concurrent jurisdiction, and the idea of concurrent jurisdiction is not an uncommon one in the history of our courts. It therefore seems reasonable that the framers of the constitution did not intend to vest exclusive jurisdiction in the supreme court, and it follows that, under the provisions of section 6, the superior court has original jurisdiction.

The second contention of the appellants is that the respondent has no interest in the controversy to enable him to prosecute this suit. The allegation is that he is a citizen and tax-payer of the state of Washington. On this proposition there is a perplexing conflict of authority, both as regards the cases reported and the opinions of eminent authors. Some authors assert, and some courts hold, that in no case can a private individual, in the absence of statutory authority, maintain a bill to enjoin a breach of public trust, without showing that he will be specially injured thereby; and that it must appear that his injury will be separate and distinct from the injury that he may suffer in common with the community at large, otherwise the remedy must be sought through those representing the public; while other authors and courts hold that municipal corporations, and their officers, may be restrained from transcending their lawful powers, or violating their lawful duties, in any manner which will injuriously affect the tax-payer, on the complaint of an inhabitant who shows no other interest than that he is a tax-payer. The cases holding against the intervention of the tax-payer found their judgment on the theory that the misappropriation of public funds by the officers of a corporation is in the nature of a public nuisance, which cannot be abated at the suit of a private citizen, and that, unless some special private injury is shown, the relief must be obtained through the intervention of officers appointed to protect public interests. We will not attempt to collate the authorities pro and con on this proposition, but are inclined to the opinion that the right of a resident tax-payer to invoke the interposition of a court of equity to compel the officers of a municipal corporation to do their duty, or to restrain them from illegally increasing the burden of taxation by squandering the public funds of the corporation, has received the great weight of, at least, modern authority. The supreme court of the United States has spoken on this subject in Crampton v. Zabriskie, 101 U.S. 601. The doctrine was thus laid down by Justice FIELD: "Of the right of resident tax-payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question." It will be observed, however, that this case falls short of asserting the doctrine claimed here by the respondent, that courts of equity will restrain the action of state officers in matters of public concern on the petition of a tax-payer who shows no special interest; nor will the language or argument of the court bear any such construction. On the other hand, it is based on the relationship of the tax-payer to the municipal, or quasi municipal, corporation. Indeed, of all the cases cited by the respondent, not one case goes beyond the doctrine laid down in Crampton v. Zabriskie, so that it will not be necessary to review them here. Nor have we been able to find a case which extends the doctrine beyond that case. In all the cases reported, the restraining order has been asked against county, town, city, or district officers. It is argued by respondent that, notwithstanding the absence of authority, there is no difference in principle between restraining county officers and state officers, in matters of public concern, on the prayer of a tax-payer. The principle upon which the doctrine in regard to municipal, or quasi municipal, corporations is based, flows from its analogy to a well-settled doctrine in equity governing private corporations, where each stockholder has an interest in the property of the corporation, and may interfere to protect the corporate funds from the illegal or fraudulent acts of its officers. Dill. Mun. Corp. (4th Ed.) § 915.

But this reasoning cannot apply to a state government. The county is a quasi corporation; the state is a sovereignty. The county only possesses such powers as the legislature of the state confers upon it. Its revenues, its property, its very existence, depend upon statutory enactment. It can be enlarged, dismembered, or annihilated, at the...