State ex rel. Fleming v. Cohn

• Decision Date: 10 February 1942
• Docket Number: 28486.,28485
• Citation: 12 Wn.2d 415,121 P.2d 954
• Parties: STATE ex rel. FLEMING v. COHN, State Director of Licenses, et al. STATE ex rel. ROMANO v. SAME.
• Court: Washington Supreme Court

121 P.2d 954

12 Wn.2d 415

STATE ex rel. FLEMING v. COHN, State Director of Licenses, et al.

STATE ex rel. ROMANO v. SAME.

Nos. 28485, 28486.

Supreme Court of Washington, En Banc.

February 10, 1942

Application for writ of mandate by the State of Washington, on relation of C. Gordon Fleming, and application for writ of mandate by the State of Washington, on relation of A. V. Romano, against Dave S. Cohn, as Director of Licenses of the State of Washington, and others, to require the issuance of certificates showing that relators had passed an examination. From judgments in favor of relators, the defendants in each case appeal.

Appeals dismissed.

BLAKE J., dissenting.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Smith Troy and John E. Belcher, both of Olympia for appellants.

Kennett & Benton, of Seattle, for respondent.

BEALS Justice.

Rem.Rev.Stat § 10185-1 et seq., provide, inter alia, that any person desiring to apply for a license to practice in this state any branch of therapeutics must first pass a preliminary basic science examination given semi-annually under the direction and control of a committee of five appointed by the governor. Section 10185-5 provides: 'If an applicant for examination shall pass with an average of not less than seventy-five per cent, and a grade in each of said subjects of not less than seventy per cent, the committee shall issue to the applicant a certificate signed by the members of the committee giving the grades in each subject * * *.'

Relators C. Gordon Fleming and A. V. Romano took this examination several times, without succeeding in obtaining a passing grade. Each relator again presented himself for examination in July, 1940, neither receiving a grade sufficient to entitle him to a certificate showing that he had successfully passed the examination. The examining committee accordingly refused to issue such certificates, whereupon relators, alleging that such refusal was capricious and arbitrary, appeared Before the superior court, each asking an alternative writ of mandate requiring that the members of the basic science examining board, who were named as respondents, issue to each relator a certificate showing that he had passed the examination, or show cause why such certificate should not be issued. Dave S. Cohn, as director of licenses of the state of Washington, was also named as a respondent.

In his application for the writ, each relator alleged that he had properly qualified to take the examination, and that he had in fact '* * * passed with a grade of more than 70 in each subject on which he was examined and his average of all the subjects on which he was examined was more than 75% in the examination as given,' but that the examining board, in marking the examination papers, had not assigned to each relator true or proper grades based upon the answers written by relators, respectively, to questions propounded in the examination, but that, on the contrary, the members of the examining board had, in grading relators' examination papers, adopted a standard of grading different than that applied to the papers of other applicants who took the examination, in that certain answers given by relators on their papers were graded wrong, whereas the same identical answers were graded as correct on the papers of other examinees. Relators also alleged that in other particulars the examining board had discriminated unfairly, unjustly and illegally as against them.

The two proceedings were consolidated for trial, and were heard by the court sitting without a jury. Findings of fact and judgment were entered in each proceeding in favor of the relator. The actions were dismissed as to respondent Cohn, and in each proceeding a judgment was signed, reciting that the relator therein was entitled to the issuance of a peremptory writ of mandate requiring the respondents to forthwith issue to the relator the certificate provided for by § 5, chapter 183, Laws of 1927, showing that relator had satisfactorily passed the basic science examination, etc.

Writs of mandate were issued in accordance with the judgments, and from the judgments respondents, as members of the basic science examining board of the state of Washington, have appealed to this court. The attorney general represented appellants Before the trial court, and represents them on this appeal. No appeal bond was filed on behalf of appellants in either case, and for this reason each relator respondent has moved to dismiss the appeal in the action which he instituted.

Exactly the same questions are presented in each appeal, and the actions having been consolidated for trial Before the superior court, and by stipulation consolidated for hearing Before this court, the two appeals will be considered together.

The state was not named as a party to either action. We shall hereinafter refer to relators as respondents, and to the members of the basic science examining board as appellants.

Rem.Rev.Stat. §§ 888 and 1721, provide, respectively, as follows:

'§ 888. The attorney general or his his assistant shall appear and act as counsel for the state. The action shall proceed in all respects as other actions. Appeals may be taken to the supreme court of the state as in other actions or proceedings, but in case an appeal shall be taken on behalf of the state, no bond shall be required of the appellant.'

'§ 1721. An appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or Before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond to the adverse party conditioned for the payment of costs and damages as prescribed in section 1722, be filed with the clerk of the superior court, or money in the sum of two hundred dollars be deposited with the clerk in lieu thereof. But no bond or deposit shall be required when the appeal is taken by the state, or by a county, city, town or school district thereof, or by a defendant in a criminal action.'

Appellants vigorously contend that the actions are against the state, and that under the sections of the statute above referred to, appeal bonds on behalf of appellants are not required.

The general rule is that Before a state or any municipal corporation or unit may be considered a party to an action or proceeding brought only against its officers as such, the political unit must in fact be the real party in interest. 59 C.J. 307, §§ 463, 464. Certain decisions of this court, in which this question was considered, will be discussed hereafter. In this connection, the phrase 'real party in interest' is here used in its ordinary legal connotation.

In the early case of Townsend Gas & Electric Light Co. v. Hill, 24 Wash. 469, 64 P. 778, 779, a writ of mandate was sought against the defendants as mayor and clerk, respectively, of the city of Port Townsend, requiring them to issue to the relator warrants drawn upon the current expense fund of the city, in payment of a balance due from the city on a judgment, and also a claim which had been allowed by the city council. From a judgment granting a writ of mandate, the defendants appealed. A motion to dismiss the appeal for want of an appeal bond was denied, this court being of the opinion that the action was brought against the appellants as officers of the city, and not in their individual capacity. In this connection the court said:

'We think it is clear that the city is the real party in interest, and therefore the same exemption applies here that would have applied had the city itself been the appellant.'

The writ of mandate which the court granted directed the disbursement from the city's expense fund. Because there was a controverted question concerning from what fund the obligation was payable, the city was manifestly the real party in interest.

In the case of State ex rel. Smith v. Blumberg, 34 Wash. 640, 76 P. 272, an appeal from a judgment granting a writ of mandate requiring the defendant as auditor of Skagit county to issue a warrant in satisfaction of a judgment which had been rendered against the county was dismissed because the appellant auditor had filed no appeal bond. It appeared that the judgment referred to had been regularly entered, that the holder thereof had satisfied the same and presented to the county auditor a certified transcript of the docket showing the judgment and its satisfaction, and that the auditor had, upon the record as presented to him, refused to issue the warrant demanded. In the course of the opinion this court said:

'In the case at bar, however, the county is not litigating any question. The debt was established by the judgment. The latter was uncontested by appeal, and the obligation is ascertained and fixed. The judgment shows upon its face that it was based upon a simple contract for physician's services rendered to indigent persons as county charges. There can be no question as to the fund from which the debt should be paid, and no such question is raised in appellant's pleadings. As an excuse for refusing to discharge his duty and issue the warrant, appellant merely in a collateral manner attempts to attack the judgment which is regular upon its face, and in the validity of which the county itself has acquiesced by not contesting in a direct manner. The obligation, being judicially and finally established, must, at least eventually, be met by the county regardless of this litigation in which appellant, by his own course, has become involved. Appellant's duty to issue the warrant was therefore plain, and one which the county, by its course in the premises, must, from a legal standpoint, at least, have expected him to discharge. The county has therefore no interest in appellant's attempted...