Reiter v. Wallgren

• Citation: 28 Wn.2d 872,184 P.2d 571
• Decision Date: 11 September 1947
• Docket Number: 30147.
• Parties: REITER v. WALLGREN, Governor, et al.
• Court: United States State Supreme Court of Washington

184 P.2d 571

28 Wn.2d 872

REITER v. WALLGREN, Governor, et al.

No. 30147.

Supreme Court of Washington

September 11, 1947

Department 2

Rehearing Denied Oct. 25, 1947.

Action by Bernard Reiter against Mon C. Wallgren, Governor of the State of Washington, and others, as members of the State Capitol Committee, and the Snoqualmie Falls Lumber Company, a corporation, to restrain the committee from selling state capitol timber to defendant corporation and to cancel all proceedings on such corporation's application to purchase the timber. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

McMicken Rupp & Schweppe, of Seattle, for appellant.

Smith Troy, Atty. Gen., Stanbery Foster, Asst. Atty. Gen., and Oliver Malm and W. E. Heidinger, both of Tacoma, for respondent.

HILL Justice.

This action bs brought by a citizen and taxpayer to restrain the state capitol committee, which includes the governor, the commissioner of public lands, and the state auditor, from consummating a sale of state capitol timber to the Snoqualmie Falls Lumber Company, a corporation, contrary to law, and to cancel and annul any and all proceedings had upon the application of the lumber company to purchase the timber involved in said sale.

The compliant alleges that the state capitol committee is about to sell the timber on a certain section of land to the lumber company for $367,778.59; that the sale is irregular and illegal for seven enumerated reasons; that the sale will irreparably damage the plaintiff and all other taxpayers of and within the state of Washington. There is no allegation or contention that the plaintiff has any direct, special, or pecuniary interest in the subject matter of the action, or that he sustains any damage by the acts complained of, except as a taxpayer.

A demurrer was sustained to the complaint on the sole ground that the plaintiff had no legal capacity to sue, and the action was dismissed.

This appeal does not bring Before us any question as to the sufficiency of the complaint, but only the issue as to whether the plaintiff had the capacity to sue. The question is: When, if ever, can a taxpayer who has no direct, special or pecuniary interest in a transaction complained of restrain or set aside the action of state officers or committees such as the state capitol committee if they are acting in excess of their authority or in violation of law, or if the acts complained of constitute malfeasance in office?

We should, in attempting to answer this question, endeavor to chart a course which will avoid the whirlpool of Charybdis involved in having the regularity and legality of every contract and every act of state officers and committees subject to challenge by any litigious spirit whose personal views are at variance with the action taken, and the rock of Scylla involved in the failure of public officers to protect the public interst.

These two dangers are well expressed by Judge Dunbar in writing the majority opinion, and Judge Hoyt in writing the dissent, in Jones v. Reed, 3 Wash. 57, 27 P. 1067, 1069. The former said:

'As the fallacy of a proposition can best be shown by distorting it, we may presume that if one of the departments of the state government can be suspended at the instance of a private citizen, who has nothing more than a community interest in a matter which concerns the general public, that every department of the state can be suspended at the same time, and the whole machinery of the government stopped, and the very existence of the state, so far as the exercise of its functions are concerned, destroyed. Surely such a theory of practice is not in harmony with the genius of our government, nor will authority sanction, or public policy permit, the adoption of a rule which will authorize any number of volunteers who may, rightfully or wrongfully, interpret the laws different from the interpretation put upon them by the officers of the state, to paralyze for a time every or any branch of the state government. * * *'

In the course of his vigorous dissent, Judge Hoyt expressed himself as follows:

'* * * If the contention of the majority is true, the tax-payers of the state are absolutely powerless, and must sit quietly by and see the officers of the state do things which are clearly illegal, and which may result in incalculable losses to the state. The attorney general may be incompetent or corrupt, and may therefore refuse to institute proceedings to prevent actions however illegal, and the funds and property of the state be placed at the mercy of state officers, who, by corruption or incompetency, may produce or allow such a disposition of the property or funds of the state, during their term of office, and Before they could be reached by the slow process of impeachment, as would practically ruin the state. To hold that such a thing is possible under our form of government, where the courts in all matters are made the final arbiters to decide as to the legality or illegality of almost every kind of action, simply because it is possible that such courts might improperly prevent certain proposed actions on the part of such officers, seems to me entirely untenable. * * *' We find ourselves unable to agree in toto with either the position of the respondents or that of the appellant.

Respondent open their argument by stating:

'The judgment of dismissal of which appellant complains is based upon the proposition that a volunteer taxpayer has no capacity to maintain a suit to restrain state officials unless he can show a direct, substantial and pecuniary injury to himself separate and distinct from that suffered by the general public. This court, in an unbroken line of decisions from 1891 to 1938, or for a period of forty-seven years, has consistently enunciated and followed the rule above stated. * * *';

and then cite ten cases, beginning with Jones v. Reed, supra, in support thereof. In other words, it is contended that we have charted a course which will avoid the whirlpool without regard to the danger from the rock. A careful reading of our cases will disclose that, while some language is broad enough to indicate that only the attorney general can maintain an action such as this, there is, with the exception of State ex rel. Hartley v. Clausen, 146 Wash. 588, 264 P. 403, hereafter discussed, no reported case in which it appears that there was danger form the rock because the attorney general had refused to perform his duty.

Respondents' statement is much too broad. We never had held that, in a proper case where the attorney general refused to act to protect the public interest, a taxpayer could not do so. We have not had occasion to pass upon such a question, and we trust we never shall.

Appellant, however, says that we have that identical question now Before us. At the top of p. 56 of his brief, he says:

'Where the Attorney General fails to act, and the governor is a party defendant, the right of action can only devolve upon the members of the body politic in their capacities as taxpayers.'

And again, on p. 63, he concludes:

'The Governor of the State is a party defendant and the Attorney General is conducting the defense of the action. If the judgment of the lower court is affirmed the timber lands held in trust for the people will be disposed of illegally without redress.'

The situation Before the court is not as stated in these quotations from appellant's brief. We must find the appellant's capacity to maintain this action from the allegations of his complaint, not from the allegations or conclusions of the brief.

Appellant does not allege or contend that the irregularities and illegalities of which he complains ever were pointed out to the attorney general with a demand that he take action to prevent the consummation of the transaction complained of or to set it aside. There is no allegation in the complaint of a refusal to act by the attorney general. There are no facts alleged in the complaint from which it would appear that such a demand would have been useless.

In the absence of a statute governing suits by taxpayers, a demand upon the proper public officer to take appropriate action is a condition precedent to the maintenance of a taxpayer's action challenging the validity and legality of what public officers are intending to do or have done, unless facts are alleged which sufficiently show that the demand to bring suit would have been useless.

In Reed v. Cunningham, 126 Iowa 302, 101 N.W. 1055, 1056, it is said:

'* * * Public officers are always presumed, in the absence of any showing to the contrary, to be ready and willing to perform their duty; and until it is made to appear that they have refused to do so, or have neglected to act under circumstances rendering this equivalent to a refusal, there is no occasion for the intervention of the citizen for the protection of himself and others similarly situated. Indeed, such refusal or neglect is the very basis on which equity will take jurisdiction; for otherwise the taxpayer whose interest is indirect would be utterly without remedy. But for the right to invoke the aid of a court of equity officers might plunder the public treasury with entire immunity so long as they, or others for them, continue in control of the governing body. * * ' (Italics ours.)

Any other rule would open the door of the courts to any over-officious citizen who might, inspired by motives good or bad, institute actions challenging the validity of contracts or the acts of public officers without first presenting the question of the propriety of such procedure to the public officials who are charged with responsibility. Or, as was said in Williams v....