State ex rel. Bremerton Bridge Co. v. Superior Court for Kitsap County

• Decision Date: 01 March 1938
• Docket Number: 27010.
• Citation: 194 Wash. 7,76 P.2d 990
• Parties: STATE ex rel. BREMERTON BRIDGE CO. et al. v. SUPERIOR COURT FOR KITSAP COUNTY et al.
• Court: Washington Supreme Court

76 P.2d 990

194 Wash. 7

STATE ex rel. BREMERTON BRIDGE CO. et al. v. SUPERIOR COURT FOR KITSAP COUNTY et al.

No. 27010.

Supreme Court of Washington

March 1, 1938

Department 1.

Certiorari by the State, on the relation of the Bremerton Bridge Company and another, against the Superior Court for Kitsap County and the Honorable E. D. Hodge, Judge thereof, to review a judgment of the Superior Court in a condemnation action by the State.

Reversed.

Hartman Hartman, Simon & Coles, of Seattle, for relators.

G. W Hamilton, Atty. Gen., L. C. Brodbeck, of Olympia, and John E. Belcher, of Tacoma, for respondent.

SIMPSON Justice.

This proceeding is by way of a peremptory writ of certiorari to review the actions of the superior court of Kitsap county in eminent domain proceedings.

January 12, 1938, the Attorney General of the state of Washington, acting pursuant to chapter 148, p. 473, Laws 1935, chapter 135, p. 502, Laws 1937, and under the provisions of Rem.Rev.Stat. § 891, filed a petition on behalf of the State of Washington to appropriate for public use the Bremerton toll bridge across Sinclair's Inlet between Bremerton and East Bremerton in Kitsap county, alleging that the director of highways of the State of Washington, in the exercise of the sovereign right of eminent domain and pursuant to the chapters first mentioned, was authorized and empowered to acquire for the state the Bremerton toll bridge and that he had attempted to purchase the bridge and its approaches, but had been unable to agree with the owners thereof, relators here, for its acquisition. Notice of condemnation, as required by Rem.Rev.Stat. § 892, was filed containing the information that the petition would be presented to the court for hearing on January 28, 1938. The Bremerton Bridge Company and the Pacific National Bank of Seattle appeared in the action and filed a petition with the court asking that the cause be removed to the United States District Court for the Western District of Washington on the ground that the action arose under the laws of the United States and was one of a civil nature of which the District Courts of the United States have original jurisdiction. This petition for removal was denied by the court January 28, 1938. On the same day the court proceeded to hear the petition of the State to condemn the bridge. At this hearing an oral demurrer was presented by the bank and the bridge company upon the ground that the petition did not state facts sufficient to constitute a cause of action. This was overruled.

Testimony was then taken, after which the court signed an order to the effect that the contemplated use for which the bridge was sought to be appropriated was really a necessary public use of the State of Washington. Thereafter the bridge company and the bank applied to this court for a writ of review which was issued January 31, 1938.

This writ, besides directing the superior court to return a full and complete transcript of the records and proceedings in the cause, required the court in the meantime to desist from further proceedings in the matter to be reviewed.

The facts necessary to a determination of this case are summarized as follows: Some time in July, 1937, a petition was filed in the superior court of Kitsap county for the condemnation of the Bremerton bridge. Respondents in that case, being the same as relators in this, filed a petition for the removal of the cause to the District Court of the United States. That motion was granted and the case removed to the District Court. A petition was made in that court to remand the case to the state court. This last petition was granted, after which proceedings were had in the state court resulting in a petition for a writ of certiorari being presented in this court, which was denied. Thereafter the case was, upon the motion of the state, dismissed without prejudice.

The only difference in the petition presented in the case filed in July and the one at bar is that the additional allegation is made in this petition to the effect that the director of highways had attempted to purchase the property of the owners Before starting proceedings to condemn.

The only other evidence introduced at the trial bearing upon the question Before us was the certificate of the director of highways to the effect that he had authorized and directed condemnation proceedings to secure the bridge and its necessary rights of way, to which certificate was attached a map showing the location of the bridge and its approaches.

The Attorney General has presented a motion to quash the writ of certiorari, or in the alternative to strike the stay order contained therein, upon the ground that the order for a writ of review was improvidently issued.

It is the settled law of this State that adjudication of public use in condemnation proceedings may not be reviewed by appeal, but only by certiorari.

The statute, Rem.Rev.Stat. § 894, provides that an order declaring a public use becomes final unless review thereof be taken to this court within five days after the entry of such order. State ex rel. Pagett v. Superior Court, 46 Wash. 35, 89 P. 178; Chicago, Milwaukee & Puget Sound Ry. Co. v. Slosser, 82 Wash. 467, 144 P. 706; Spokane Valley Power Co. v. Northern Pacific Ry. Co., 99 Wash. 557, 169 P. 991; State ex rel. Abbott v. Superior Court, 119 Wash. 26, 204 P. 815; State ex rel. Whitman County v. Superior Court, 123 Wash. 182, 212 P. 268.

Actions of this nature require much effort and expense to both relators and respondent. A continuation of the trial pending the decision of this case would result in useless expense without profit to either relators or respondent.

For the reasons just given, the motions to quash and to strike will be denied.

The first contention urged by relators is that the court erred in refusing to grant the petition of removal to the federal court.

In their petition for removal, they asserted that the bridge in question was constructed and is maintained, owned, and operated pursuant to certain acts of Congress, namely, Act Cong. March 23, 1906, 34 Stat. 84, 33 U.S.C.A. § 491 et seq., and Act Cong. June 14, 1926, 44 Stat. 744.

The state has contended that it is the duty of courts to determine from the face of the petition for condemnation alone whether the case is removable. In determining that question, however, we deem it proper to consider not only the original condemnation petition, but also the petition for removal and the entire record Before this court, and to accept the facts appearing therein as true. We have not adopted this course because of any belief that the State was attempting to conceal the true issues, but simply because we feel that the whole record should be considered. State ex rel. Department of Public Works v. Northern Pacific Ry. Co., 172 Wash. 37, 19 P.2d 128.

If from this entire record, including the original condemnation petition and that for removal, this cause does not seem to be a removable one, then the state court is not bound to surrender its jurisdiction and may proceed as if no application for removal had been made. The burden is upon the relators to show affirmatively by the record that they are entitled to the requested transfer.

'It being only upon the filing, in a state court in which is pending a suit of one of the classes removable upon application to such state court, of a petition for removal which properly shows that the cause is removable, accompanied, where required, by a sufficient bond, that the removal of such cause to a federal court is effectuated, the state court has the right and is under a duty to decide for itself, purely as a question of law, whether or not upon its face the petition, considered in connection with the rest of the record, presents a removable case and thereby has terminated the jurisdiction of such court.' 54 C.J. 331, § 253.

'A pure question of law presented by a petition for removal as to whether, admitting the facts stated to be true, it appears on the face of the record that the petitioner is entitled to removal, is one which both the state court and the federal court have the right to decide. The theory on which this rule rests is that the record closes, so far as the question of removal is concerned, when the petition for removal is filed, and the necessary security furnished. It presents then to the state court a pure question of law, and that is, whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit. That question the state court is at liberty to determine for itself, and to refuse to surrender jurisdiction where the case as thus disclosed on the record is not a removable one. * * *' 2 Cyclopedia of Federal Procedure (1928) pp. 176, 177, § 315. See, also, Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799, 29 L.Ed. 962; Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462; Gulf Refining Co. v. Morgan, 4 Cir., 61 F.2d 80.

It is conceded that a toll bridge may be changed to a free one upon the payment of due compensation by the public to its owners. 9 C.J. 451, § 41.

This assignment of error does not present any question relating to the construction or operation of the bridge, but the sole question presented is whether the state court or the federal District Court is the appropriate forum for the exercise of the power of eminent domain where the State seeks to condemn a bridge that is built over navigable waters.

No case has been cited in which a petition for...