State ex rel. Carter v. Superior Court for King County, 29082.

• Decision Date: 08 June 1943
• Docket Number: 29082.
• Citation: 138 P.2d 843,18 Wn.2d 130
• Court: Washington Supreme Court
• Parties: STATE ex rel. CARTER v. SUPERIOR COURT FOR KING COUNTY.

138 P.2d 843

18 Wn.2d 130

STATE ex rel. CARTER v. SUPERIOR COURT FOR KING COUNTY.

No. 29082.

Supreme Court of Washington

June 8, 1943

Proceeding by the State of Washington on the relation of Carroll Carter against the Superior Court for King County, the Honorable J T. Ronald, Judge, for writ of prohibition, wherein the question for determination was whether the Superior Court acquired jurisdiction of relator in a certain quo warranto proceeding against him.

Writ granted.

Henry Clay Agnew, of Seattle, for relator.

Lloyd Shorett and John J. Kennett, both of Seattle, for respondent.

BLAKE Justice.

The relator, Carter, is the duly elected and qualified treasurer of King county. He was charged, tried, and convicted on eight counts for violations of§ 1 of chapter 72 of the Laws of 1941, p. 187 (Rem.Supp.1941, § 7612-21), entitled: 'An Act relating to labor; declaring the rebating of wages underpayment of agreed wages and certain deductions from wages to be unlawful; providing penalties; and amending section 1 of chapter 195 of the Laws of 1939.'

Judgment and sentence was imposed on April 20, 1943. Shortly thereafter, the prosecuting attorney of King county filed in the superior court an information, in the nature of quo warranto, setting up the facts relating to the conviction and judgment and sentence and praying for judgment against Carter ousting him from the office of county treasurer. Upon the filing of the information, the superior court, on April 23, 1943, entered an order requiring Carter to appear on April 30, 1943, and show cause why judgment of ouster should not be entered. On the return day, Carter appearing specially, interposed a motion to quash the show cause order. The court denied the motion, whereupon Carter maintaining his special appearance, demurred and filed an answer, and the cause proceeded to trial on the merits. After hearing the evidence, the court announced its intention of entering judgment of ouster. Before such judgment was entered, however, Carter filed his petition in this court for a writ of prohibition. An alternative writ was issued, and the matter is now Before us upon the petition and the superior court's return to the alternative writ.

The sole question for determination is whether the superior court acquired jurisdiction of Carter in the quo warranto proceedings. State ex rel. W. E. Dooley & Co. v. Superior Court, 128 Wash. 253, 222 P. 492, 35 A.L.R. 252; State ex rel. Northeast Transp. Co. v. Superior Court, 3 Wash.2d 367, 101 P.2d 303; State ex rel. Austin v. Superior Court, 6 Wash.2d 61, 106 P.2d 1077; State ex rel. O'Brien v. Police Court, 14 Wash.2d 340, 128 P.2d 332, 141 A.L.R. 1257.

It is conceded that, in the absence of any specific statutory practice, where the court has discretion to permit the issuance of a writ of quo warranto or the filing of an information in the nature of such writ, the usual practice is to make application, supported by affidavit, for such leave and for a rule nisi to the defendant to show cause why such rule should not be granted. State ex rel. v. McDiarmid, 26 Ark. 480; Harris v. Pounds, 66 Ga. 123; People ex rel. Lewis v. Waite, 70 Ill. 25; People ex rel. Brummet v. Moeckel, 256 Ill. 598, 100 N.E. 272; In re Bank of Mount Pleasant, 5 Ohio 249, 250; People ex rel. Barker v. Kip, 4 Cow., N.Y., 382, note; Commonwealth v. Jones, 12 Pa. 365; State ex rel. Page v. Smith, 48 Vt. 266; United States ex rel. Boyd v. Lockwood, 1 Pin., Wis., 359.

Where, however, the legislature has, by statute, defined a substantive right and procedure corresponding to quo warranto at common law, the statutory provisions must be followed. State ex rel. Grisell v. Marlow, 15 Ohio St. 144; Commonwealth ex rel. Needles v. Henszey, s1 Pa. 101; People ex rel. Lord v. Every, 38 Mich. 405; State ex rel. Fitts v. Elliott, 117 Ala. 172, 23 So. 43; State ex rel. Diepenbrock v. Gates, 35 Minn. 385, 28 N.W. 927; Mills v. State ex rel. Smith, 2 Wash. 566, 27 P. 560. In the case last cited, this court said, 2 Wash. at page 569, 27 P. at page 561:

'* * * the cases cited by appellee, all being cases either under the commonlaw rule or in compliance with the requirements of the statute of Anne, are not in point. * * * The common law on that subject has been supplanted by the statute--the state has legislated on the subject--and it is to the statute we must look, not only for the practice of the court, but for the qualifications of the relator.' (Italics ours.)

Looking to the statute, then, the question is: Did the court, by the issuance and service of the show cause order upon Carter, acquire jurisdiction over him in the quo warranto proceedings?

To answer this question it is necessary to construe Rem.Rev.Stat. § 1038, which provides: 'Whenever an information is filed, a notice signed by the relator shall be served and returned, as in other actions. * * *' (Italics ours.)

In order to construe the section, it is necessary to consider its origin and history. In substance, it first appears as § 472 of subd. (chapter) LII of the Civil Practice Act of 1854, p. 217. Subdivision LII is entitled 'Information.' It comprises §§ 468 to 483, inclusive, of the Civil Practice Act. These sections, in substance, are the same as what are now known as Rem.Rev.Stat. §§ 1034 to 1048, inclusive. Section 472 (the counterpart of Rem.Rev.Stat. § 1038), however, read as follows:

'Whenever an information is filed, a summons shall issue thereon, which shall be served and returned as in other actions. * * *' (Italics ours.)

Now, under subd. (chapter) IV of the Civil Practice Act of 1854, p. 135, summons in civil (other) actions was issued by the clerk of the court upon the filing of a complaint. The summons required the defendant, 'if served within the county,' to appear and answer within fifteen days. If he was 'served in any other county,' he was required to appear in twenty days. Under any reasonable construction of these provisions, it is clear that, as long as the Civil Practice Act of 1854 remained in effect, jurisdiction in quo warranto proceedings could not be obtained by the issuance of a show cause order.

In 1860, the legislature enacted a new Civil Practice Act. Chapter 111, p. 8, § 18, of that act provided:

'Writs of summons are abolished, and civil actions in the several district courts of this territory shall be commenced by the service upon the defendant of a copy of a complaint, and a notice; which notice shall be signed by the plaintiff, or his attorney, * * *. The notice shall be substantially as follows: * * *

'To _____: You are hereby notified that unless you appear in the district court of the _____ judicial district, on the first day of the next term thereof, which shall commence twenty days or more after the service of this complaint, the same will be taken as confessed, and the prayer thereof granted.' (Italics ours.)

Chapter XLVIII (§§ 460 to 475, inclusive) of that act, p. 96, relates to the information in the nature of quo warranto. Section 464 is identical with Rem.Rev.Stat. § 1038, providing: 'Whenever an information is filed, a notice signed by the relator shall be served and returned as in other actions.' (Italics ours.)

Again, we think it is clear that, under any reasonable construction of the Civil Practice Act of 1860, there is no room for obtaining jurisdiction in quo warranto proceedings by the issuance and service of a show cause order. For, if the notice is to be served and returned 'as in other actions,' it must notify the defendant that, unless he appears 'on the first day of the next term * * *, which shall commence twenty days or more after the service of this complaint [information], the same will be taken as confessed, * * *.'

In other words, the statute fixes the return day of process. It is not left to the discretion of the court as at common law.

At this point it may be noted that, in re-enactments of the Civil Practice Act subsequent to 1860, no change was made in what is now Rem.Rev.Stat. § 1038. However, in the re-enactment of 1873, chapter IV, p. 16, the legislature reverted to the summons as the process for obtaining jurisdiction...