Northwestern & Pacific Hypotheek Bank v. State

• Decision Date: 28 October 1897
• Citation: 50 P. 586,18 Wash. 73
• Court: Washington Supreme Court
• Parties: NORTHWESTERN & PACIFIC HYPOTHEEK BANK v. STATE.

50 P. 586

18 Wash. 73

NORTHWESTERN & PACIFIC HYPOTHEEK BANK v. STATE.

Supreme Court of Washington

October 28, 1897

Appeal from superior court, Thurston county; Charles H. Ayer, Judge.

Action by the Northwestern & Pacific Hypotheek Bank (Northwestern &amp Pacific Mortgage Company) against the state. From a judgment for defendant, plaintiff appeals. Reversed.

O. G. Ellis and A. H. Denman, for appellant.

P. H Winston and Thos. M. Vance, for the State.

GORDON J.

This action was instituted by the appellant in the superior court of Thurston county for the purpose of having a judgment awarding a lien in respondent's favor against certain lands in King county decreed to be subject to a prior mortgage held by plaintiff upon said lands. A demurrer upon the ground that the superior court had no jurisdiction was sustained, and the plaintiff electing to stand on its pleading, judgment of dismissal was rendered, and the cause appealed.

The question to be determined is, does the act approved March 20 1895 (Sess. Laws, p. 188), confer jurisdiction upon the superior court of Thurston county to hear and determine controversies of the character herein involved? The act is entitled "An act authorizing actions against the state." Section 1 provides that "any person or corporation having any claim against the state of Washington shall have the right to begin an action against the state in the superior court of Thurston county." The section further provides for like pleadings as in other actions. Section 2 of the act provides that the complaint shall be served upon the attorney general, and also upon the secretary of state. Section 3 provides that the attorney general shall appear and act as counsel for the state, and that appeals "may be taken to the supreme court of the state as in other actions." Section 4 provides that no execution shall issue against the state on any judgment, but when final judgment is given against the state the auditor shall audit and pay the amount of damages and costs therein awarded, upon a certified transcript of such judgment being furnished. The last section of the act (section 5) makes the statute of limitations applicable to actions against the state. It is the contention of the attorney general that the word "claim," used in section 1 of this statute, means a claim for money; that the statute is one in derogation of common law, and should be strictly construed. On the other hand, appellant's contention is that the statute is a remedial one, passed in furtherance of a constitutional provision, and that it should receive a liberal construction. And much authority has been cited in support of the respective views of counsel. But we think the statute must be construed as having been passed for the purpose of giving effect to section 26, art. 2, of the state constitution, requiring that "the legislature shall direct by law in what manner and in what courts suits may be brought against the state." By this provision we think it was intended that the state might be permitted to be sued in like manner as an individual, and it was left to the legislature to determine in what court such suits should be brought, and to prescribe the method of procedure. In the light of this constitutional provision, we think that the word "claim," used in the statute, was intended to mean, and should be given the same meaning as the term or phrase "cause of action." We think the question is in no wise affected by the provision of section 4 of the act, requiring the auditor to pay damages and costs awarded against the state by any judgment. That section ought not to be construed as a limitation. The word "suits," as used in the constitution (section 26, supra), is not used in a restricted sense,...