North Bend Stage Line, Inc. v. Department of Public Works

• Decision Date: 23 November 1932
• Docket Number: 23647.
• Citation: 16 P.2d 206,170 Wash. 217
• Parties: NORTH BEND STAGE LINE, Inc., v. DEPARTMENT OF PUBLIC WORKS et al.
• Court: Washington Supreme Court

16 P.2d 206

170 Wash. 217

NORTH BEND STAGE LINE, Inc., v. DEPARTMENT OF PUBLIC WORKS et al.

No. 23647.

Supreme Court of Washington, En Banc.

November 23, 1932

Appeal from Department of Public Works.

Proceeding by writ of review by the North Bend Stage Line, Inc., against the Department of Public Works and Washington Motor Coach Company, Inc., to review an order of the Department of Public Works canceling a temporary certificate and right to furnish passenger and express service between Cle Elum and Easton.

Proceeding dismissed.

Poe Falknor, Falknor & Emory, of Seattle, for petitioner.

John H Dunbar and John C. Hurspool, and Cleland & Clifford, all of Olympia, for respondents.

E. W Anderson, of Olympia, amicus curiae.

PARKER J.

This proceeding was commenced as a statutory review proceeding in this court by the petitioner, North Bend Stage Line, Inc., against our State Department of Public Works and the Washington Motor Coach Company, seeking review and reversal of an order of that department rendered against the stage line. Review of the order is sought directly in this court under the provisions of chapter 119, p. 363, Laws of 1931, amending sections 10428, 10429, Rem. Comp. Stat., which has the effect, if constitutional, of divesting the superior court of its reviewing jurisdiction over the department and vesting jurisdiction in that behalf directly and exclusively in this court.

It is contended and ably argued by counsel for the coach company, and other counsel appearing amicus curiae, that chapter 119, p. 363, Laws of 1931, is unconstitutional, in that it makes this court the court of original review of the orders of the department and divests the superior court of jurisdiction in that behalf, and that therefore this court is without jurisdiction as therein prescribed. It is contended and ably argued to the contrary by counsel for the stage line and other counsel in another proceeding of the same nature pending in this court. That chapter reads, in so far as need be here quoted, as follows:

'Section 1. That section 10428 of Remington's Compiled Statutes be amended to read as follows:

'Section 10428. Any complainant or any public service company affected by any order of the department of public works (save and except orders determining the amount of reparation and/or overcharge), and deeming said order to be contrary to law, may, within thirty days after the service of the order upon him, or it, apply to the chief justice of the supreme court of the State of Washington for a writ of review, for the purpose of having the reasonableness and lawfulness of said order inquired into and determined. Such writ shall be made returnable not later than thirty days from and after the date of the issuance thereof, unless upon notice to all parties affected a further time be fixed by the chief justice, and shall direct the department to certify its record in the case to the supreme court. The cause shall be heard by the court at such time subsequent to the return day as the court shall direct. Said cause shall be heard by the court upon the record made Before the department and certified to by said department and shall consist of a transcript of the testimony, together with all exhibits introduced or offered and rejected, and a transcript of the proceedings Before the department. Briefs and abstract (where the statement of facts contains over 100 pages) shall be prepared, served and filed in conformity with the rules of the supreme court governing appeals, except that the time for the service and filing of the abstract and opening brief as provided in said rules shall run from the day of the issuance of the writ by the chief justice as hereinBefore provided. The general laws relating to appeals to the supreme court shall, so far as applicable and not in conflict with the provisions of this act, apply to writs of review taken under the provisions of this act. Upon such hearing the supreme court shall enter such judgment as it deems proper, and the court may, in its discretion, remand any cause which is reviewed by it to the department for further action.

'No court of this state (except the supreme court to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order or decision of the department or to suspend or delay the execution or operation thereof, or to enjoin, restrain or interfere with the department in the performance of its official duties. * * *'

Section 2 amends section 10429, Rem. Comp. Stat., and provides for suspending orders of the department pending review thereof. These sections, as unamended, provide for review of orders of the department in the superior court substantially as by these amendments they provide for such review in this court. Section 3 repeals section 10430, Rem. Comp. Stat., relating to appeal from the superior court to this court.

The jurisdiction of this court, so far as need be here noticed, is by section 4, article 4, of our State Constitution, prescribed as follows: '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, excepting that [here follow certain exceptions not necessary to notice]. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. * * *'

The jurisdiction of the superior court, so far as need be here noticed, is by section 6, article 4, of our State Constitution, prescribed as follows: 'The superior court shall have original jurisdiction in all cases in equity and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to one hundred dollars. * * * Said courts and their judges shall have power to issue writs of mandamus, quo warranto, review, certiorari, prohibition, and writs of habeas corpus. * * *'

These constitutional provisions render plain the constitutional intent to make the Supreme Court the court of general appellate jurisdiction, giving to it certain limited original jurisdiction; and to make the superior court the court of general original jurisdiction.

Now what is the real nature of the review provided for by chapter 119, p. 363, Laws of 1931? Its real nature seems to us to be that of appeal or writ of error rather than that of review or certiorari, though in that chapter it is called 'review,' this because the statute makes the issuance of the writ and the review thereunder a matter of right in the applicant conceiving himself to be injured by an order of the department which he seeks to have reviewed. Such was the right of an applicant for writ of error at common law, and such is the right of an appellant under appeal statutes which have largely taken the place of writ of error, 3 C.J. 299-303; while certiorari, in the absence of statute broadening its purpose, is a matter of discretion in the court to which application therefor is made. 11 C.J. 128; 5 R. C. L. 254. So it seems plain to us that by chapter 119, p. 363, Laws of 1931, the Legislature has assumed to give the right of appeal directly from an order of the department to this court.

Now, recurring to the constitutional appeal jurisdiction of this court, we have seen that such jurisdiction is prescribed to be 'in all actions and proceedings,' with certain limited exceptions. This, we are of the opinion, means appellate jurisdiction in 'actions and proceedings' of a purely judicial nature, which have been determined in some judicial court established by the constitution or in pursuance thereof. Whether such appellate jurisdiction is exclusively from the superior court or may be from some inferior judicial court established by the Constitution or in pursuance thereof, we need not now inquire. Reading the whole of the above-quoted provisions of article 4 of the Constitution, we are led to the conclusion that this is at all events the constitutional limit of the appellate jurisdiction of this court, which the Legislature does not have the power either to expand or limit. Authorities presently to be noticed, we think, support this conclusion.

Let us for a moment treat chapter 119, p. 363, Laws of 1931, as assuming to confer original review jurisdiction upon this court directly by review or certiorari. When the judiciary article 4 was, in 1889, adopted as part of our Constitution upon admission of our state into the Union, there was no statutory review or certiorari proceeding then in existence in the territory of Washington, other than the statutory certiorari for the review of proceedings determined by justices of the peace, which statutory provision was, in substance, a writ of error, since the right to remove the proceedings to the district court by such writ was one of right in the applicant; the writ being issued by the clerk of the district court 'as of course,' upon proper application therefor. See sections 1849-1857, Territorial Code of 1881, and sections 1621-1629, p. 610, vol. 2 Hill's Statutes and Codes of 1891. In 1895, the Legislature passed an act entitled 'An Act regulating special proceedings of a civil nature,' being chapter 65, p. 114, Laws of 1895. That act relates to 'certiorari,' therein called 'review,' and also to 'mandamus' and 'prohibition.' That act has remained in force up to the present time. See sections 999-1033, Rem. Comp. Stat. of 1922, and same sections in Rem. Rev. Stat. of 1932. That act broadened the relief obtainable by...