State ex rel. Lemon v. Langlie, 32910

Decision Date03 August 1954
Docket NumberNo. 32910,32910
Citation45 Wn.2d 82,273 P.2d 464
CourtWashington Supreme Court
PartiesSTATE ex rel. LEMON et al. v. LANGLIE, as Governor, et al.

Don Eastvold,

Ralph M. Davis, Olympia, for appellants.

John Spiller, Seattle, Smith Troy, Philip W. Richardson, Olympia, for respondents.

DONWORTH, Justice.

Relators in this action are four private citizens and taxpayers of this state and one domestic corporation doing business and paying taxes in this state.

Relators commenced this action by filing a petition in mandamus in the superior court for Thurston county seeking a writ of mandate to compel the governor of the state and the individual heads of thirteen state agencies (each agency being a part of the executive department of the state) to move the offices of those agencies from Seattle, where they now are located, to Olympia, the state capital.

The petition alleged that respondent Arthur B. Langlie was and is the Governor of the state of Washington and as such charged with the duty of seeing to it that his appointees (the other named respondents) observe the letter and spirit of the organic law of the state respecting the seat of government and that they maintain their principal offices at the seat of government.

Relators further alleged that the other respondents were and are, respectively, the heads of thirteen state agencies, each of which is a legislatively created agency exercising a portion of the sovereign executive and legislative power of the state, and that they are maintaining their respective principal offices away from the seat of government and in Seattle, Washington, 'contrary to the letter and spirit of the organic law of this state.'

These thirteen state agencies are: the state aeronautics commission, the state athletic commission, the state board of accountancy, the state board against discrimination in employment, the state board of pharmacy, the state board of prison terms and paroles, the director of the state department of fisheries, the state game commission and the director of game, the director of the state department of health, the state horse racing commission, the state personnel board, the state parks commission and the state power commission. It was alleged that the individual respondents who comprise the various boards, commissions and departments, respectively (other than the state power commission) were responsible, individually and jointly, for maintaining the offices of their respective state agencies away from the seat of government and at Seattle, contrary to the letter and spirit of the organic law of the state.

With respect to the thirteenth state agency involved, to wit, the state power commission, it was alleged that, while the members thereof had not yet located the principal office of the agency, it had been publicly announced that they intended to and would establish the principal office of this agency away from the seat of government and at Seattle, contrary to the letter and spirit of the organic law of the state.

Paragraph 15 of the petition alleged:

'That none of the agencies of the state government aforesaid is a charitable, eleemosynary, penal, reformatory or educational institution which by the intendment of the organic law may be established elsewhere than at the seat of the government; and that the acts of the several agencies aforesaid, and of the respective board members, commission members and directors constituting such agencies, in maintaining their principal offices elsewhere than at the seat of the government are violative of the provisions, among others, of Article XIV of the state Constitution, section 13 of the Organic Act, and sections 12, 17, 21 and 24 of the Enabling Act.'

The petition further alleged that a written communication on behalf of the relators had been mailed to respondent Governor, postage prepaid, demanding that he, in his capacity as chief executive of the state, 'forthwith order all state officers, agencies, boards, commissions and departments not complying with the organic law in this connection, excepting those administering educational, penal, charitable and eleemosynary institutions legally established elsewhere, to return to the capitol at Olympia all such of their offices, together with books and records, as are not necessary local or branch offices,' or in the alternative that he 'direct and require the attorney general to institute immediate legal proceedings looking toward such return;' that the Governor had not acknowledged receipt of the demand or indicated to relators what his position with respect to the demand was, but that he had been quoted in the public press as saying he was not inclined to consider the demand, and that from his failure to act and from the newspaper comment the relators believed, and alleged it to be a fact, that respondent governor had declined to act on the demand of relators.

It was also alleged that relators had addressed a written demand to the Attorney General of the state requiring him to act in the premises and that on January 11, 1954, the Attorney General in writing had declined to initiate legal action looking to the return to the seat of government of the state agencies named in the petition which are maintaining their principal places of business away therefrom.

Prior to the hearing on respondents' motion to quash the alternative writ the parties stipulated that:

'* * * the petition of relators herein be deemed amended to show that none of the respondent agencies, boards, commissions or departments, at the time of or since the filing of the petition herein, maintained an office at the capital; that the annual rentals, provided in the main by the general fund of the State of Washington, paid or to be paid by the several respondents herein for office space in the City of Seattle, total $120,878.56; and that the said general fund of the State of Washington as of March 18, 1954, shows an average deficit of approximately $45,000,000.00.'

The prayer of the petition was as follows:

'Wherefore the relators pray for the issuance out of this honorable court of a writ of mandate commanding the several respondents herein forthwith to return to and thereafter maintain at the capital city at Olympia the principal offices, together with books and records, of the respective state agencies which they constitute, or in the alternative commanding them to appear at a day certain and show cause why they have not done so.'

The trial court, after considering the verified petition in mandamus and on motion by relators' counsel, entered an order directing the issuance of an alternative writ of mandate, which was issued.

In response thereto respondents appeared and filed a motion to quash and dismiss the alternative writ of mandate and dismiss the petition in mandamus on these grounds:

'(1) The court has no jurisdiction over the person of the respondents, or of the subject matter of the action;

'(2) That the relators have no legal capacity to sue;

'(3) That there is a defect of parties, relators and respondents;

'(4) That the petition does not state facts sufficient to constitute a cause of action; and

'(5) That the petition reveals a lack of sufficient legal grounds to entitle relators to the relief sought.'

Before the hearing on the motion to quash and dismiss was held the parties stipulated that:

'* * * the purpose of this action is to obtain a judicial interpretation of the seat of government provision (Article XIV) of the Washington State Constitution, and certain related provisions of the Organic Act and Enabling Act; and no issue is raised involving the effect or application of any statute of the State of Washington. * * *'

At the hearing on the motion to quash and dismiss, all parties and the trial court treated the motion as equivalent to a demurrer to the petition. After hearing arguments, the trial court entered an 'Order overruling Demurrer' which recited:

'It Is Ordered, Adjudged and Decreed that the demurrer of the respondents, as respects each and every ground set forth in the demurrer, and more particularly the following grounds:

'(1) That the relators have no capacity to sue;

'(2) That the court has no jurisdiction over the subject matter of the action;

'(3) that the court has no jurisdiction of the person of the respondent governor; and,

'(4) that the petition does not state facts sufficient to constitute a cause of action,

'be and the same is hereby overruled.'

After the entry of the above order, respondents refused to plead further, having announced in open court their election to stand upon the demurrer and to take an appeal to this court. The trial court then entered an order for the issuance of a peremptory writ of mandate to the Governor and to the individual persons constituting the heads of the thirteen state agencies named in the petition.

The peremptory writ of mandate issued in accordance with the order contained this directive:

'Now, Therefore, you, and each of you, are hereby commanded forthwith to return to and thereafter maintain at the capital city at Olympia the offices, together with the books and records, of the respective state agencies, boards, commissions and departments which you severally constitute; * * *.' (Italics ours.)

This appeal was then taken. In order to avoid confusion we will continue to refer to the parties as relators and respondents.

The two assignments of error made in this court are:

'(1) The court erred in overruling the demurrer.

'(2) The court erred in entering judgment for the respondents issuing the writ of mandate.'

If the demurrer was properly overruled, there was no error in entering the order for the issuance of the peremptory writ of mandate after appellants refused to plead further. Consequently, we will limit our consideration to the question of whether or not the demurrer should have been sustained.

In support of their contention that relators had no capacity to sue, the...

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