State ex rel. Hamilton v. Troy, 26662.

• Decision Date: 27 May 1937
• Docket Number: 26662.
• Citation: 190 Wash. 483,68 P.2d 413
• Parties: STATE ex rel. HAMILTON, Atty. Gen., v. TROY, Pros. Atty.
• Court: Washington Supreme Court

68 P.2d 413

190 Wash. 483

STATE ex rel. HAMILTON, Atty. Gen., v. TROY, Pros. Atty.

No. 26662.

Supreme Court of Washington, En Banc.

May 27, 1937

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

Proceeding by the State, on the relation of G. W. Hamilton, Attorney General, against Smith Troy, as prosecuting attorney of Thurston county. From an order of dismissal on demurrer, the State appeals.

Reversed with directions.

G. W Hamilton and R. G. Sharpe, both of Olympia, for appellant.

Smith Troy, John S. Lynch, Jr., and E. A. Philbrick, all of Olympia, for respondent.

ROBINSON Justice.

At its recent session, the Legislature passed an emergency act which became effective on March 13, 1937, as chapter 100, Laws 1937. The first three sections of the act are as follows:

'Section 1. The official title of the office of Prosecuting Attorney, and/or County Attorney, shall hereafter be known and designated as District Attorney, and the office of Prosecuting Attorney and/or County Attorney shall hereafter be known and designated as the office of District Attorney.

'Sec. 2. The District Attorneys of all counties shall have and exercise all such powers, duties and privileges within their respective counties as are by law now and hereafter conferred upon them as Prosecutting Attorneys and/or County Attorneys.

'Sec. 3. Wherever the words 'Prosecuting Attorney' and/or 'County Attorney' are or have been used in the laws of the State of Washington, the same shall be construed to mean District Attorney.'

On March 31, the State of Washington, on the relation of its Attorney General, began a special proceeding in the superior court of Thurston county against the prosecuting attorney of that county, as respondent, in which it applied for a peremptory writ of prohibition restraining and prohibiting the respondent from making, issuing, or serving informations in any criminal action wherein the title of his office, either in the body, signature, or verification, should be designated as 'district attorney' of Thurston county, Wash., or by any designation other than 'prosecuting attorney' of Thurston county.

The affidavit accompanying the application averred that respondent had, since March 13, 1937, designated his office as 'district attorney' of Thurston county in various criminal informations; that he had refused to discontinue the practice upon the relator's request; that, unless prohibited, he would continue it; that, by so doing, he would impede the enforcement of the criminal laws and render attempts to prosecute criminals for offenses committed in Thurston county abortive; and that the relator had no plain, speedy, and adequate remedy in the ordinary course of law. The respondent demurred, on the grounds that there was a defect of parties defendant, no jurisdiction of the subject-matter, and that the application and affidavit did not state facts sufficient to constitute a cause of action or entitle the relator to the relief prayed for. After hearing argument on the demurrer, the trial court entered an order sustaining it, and in the same order, reciting that the relator refused to plead further, dismissed the action. From that order, this appeal was taken.

Section 5 of article 11 of our State Constitution provides, in part, as follows:

'The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township, or precinct and district officers, as public convenience may require, and shall prescribe their duties and fix their term of office.'

This language is repeated in the Twelfth Amendment to the Constitution adopted by the vote of the people in November, 1924.

The relator brought this proceeding by virtue of Rem.Rev.Stat. § 116 (P. C.§ 1786), which gives the Attorney General supervisory control and direction over the prosecuting attorneys of the various counties. The relator, as appellant here, contends that the effect of the first three sections of chapter 100, Laws 1937, is to amend the Constitution, and that the Constitution cannot lawfully be amended by the Legislature acting alone, but only upon legislative proposal, confirmed by the vote of the people.

The respondent points out that the name 'prosecuting attorney' is misleading, in that a great and very important part of the duties of the office so designated are civil in their nature, such as representing the county and the school districts therein in civil suits and the giving of legal advice and counsel to county and school district officers.

It is further contended that the legislation complained of affects no vested right or interest, that it can harm no one, and it is argued, with much force and especial emphasis, that it in no way defeats the constitutional purpose and intent, in that it does not in any way alter or change the character or duties of the office, but merely changes its name. This argument, it will be observed, is based upon the plausible and appealing logic which has made the words 'What's in a name? That which we call a rose by any other name would smell as sweet' one of the most familiar quotations in our language.

It is further argued that there is no express or implied negation or prohibition in any section, article, or amendment of the State Constitution which would prevent the change, and we are reminded that the presumptions are all in favor of the constitutionality of the act, and it is said nothing less than a certain and unequivocal violation of some constitutional inhibition can warrant us in holding it inoperative.

The...