State ex rel. Malmo v. Case
| Decision Date | 29 May 1946 |
| Docket Number | 29906. |
| Citation | 25 Wn.2d 118,169 P.2d 623 |
| Court | Washington Supreme Court |
| Parties | STATE ex rel. MALMO et al. v. CASE, Com'r of Public Lands. |
Original application for mandamus by the State of Washington, on the relation of C. O. Malmo and Abe Sherman, copartners doing business as Olympic Logging Company, to compel Otto A. Case as Commissioner of Public Lands, to mark for cutting certain timber located on state property and meanwhile permit relators to log and remove such timber, wherein respondent filed a demurrer.
Writ of mandamus denied.
Smith Troy and Stanbery Foster, both of Olympia, for respondent.
This is an original application made in this court for the issuance of a writ of mandamus to compel the commissioner of public lands to mark for cutting certain timber located on state property and meanwhile permit relators to log and remove such timber.
In jury, 1942, Mr. F. H. Brundage, western log and lumber administrator of the war production board, sent a letter to Honorable Arthur B. Langlie, then Governor of the state of Washington, notifying the latter of the critical situation with respect to logs needed for the manufacture of aircraft material for use in World War II, and requesting that, in order to relieve thmergency, all necessary steps be taken at once to make immediately available for cutting the spruce timber on any or all state school lands in the Olympic peninsula or elsewhere.
Pursuant to, and in compliance with, that request, the state of Washington, through Mr. Jack Taylor, then commissioner of public lands, and Olympic Logging Company, a copartnership composed of C. O. Malmo and Abe Sherman, the relators herein entered into a series of contracts, four in number, wherein the state agreed to sell, and the relators agreed to buy, all of the merchantable content of all standing spruce and fir trees of specified sizes and grades, together with certain other described timber, located on lands owned by the state. The first of these contracts was entered into on July 13, 1943, and was to be completed within one hundred and eight days thereafter; the second contract was made August 24, 1943, and was to be completed within ninety-six days after that date; the third and fourth contracts were dated October 27, 1943, and were to be completed within the next ninety days. The latest date fixed in any of the contracts for completion of the work thereunder was January 27, 1944.
Each of the contracts contained a provision to the effect that all timber, whether standing or fallen, not removed from the lands by the relators prior to certain dates, the latest of which was January 27, 1944, should revert to and become the property of the state as fully and to all intents and purposes as if the respective agreements had not been made and in such event the rights of the purchasers and those claiming under them to cut or remove timber from the lands should utterly cease on the expiration dates named in the contracts, with the proviso that if the purchasers were acting in good faith the commissioner of public lands 'may extend the time of removal in accordance with all statutes governing,' in which latter event all timber, either standing or fallen, not removed at the expiration of such extension should likewise revert to and become the property of the state as fully and to all intents and purposes as if the extension had not been made. The contracts further provided that the commissioner of public lands should be the sole judge as to whether the timber covered by the respective agreements had been logged properly.
Relators entered upon the performance of the contracts but failed to complete them within the periods allowed therefor. In the meantime, however, relators had made a series of applications to the commissioner of public lands for extensions of time for removal of the timber and were granted such extensions to October 19, 1945, at which time Mr. Otto A. Case, respondent herein, had succeeded Mr. Jack Taylor as commissioner of public lands.
Sometime prior to the last mentioned date, relators, realizing that they would be unable to make complete removal of the timber by October 20, 1945, made request for a further extension of time, beyond that date, but the commissioner, respondent Case, refused to grant that request.
Relators thereupon sought a hearing upon their request for such extension, Before the board of state land commissioners, which, since March 24, 1941, has consisted of the commissioner of public lands, the secretary of state, the state treasurer, the attorney general, and the superintendent of public instruction. Chapter 217, Laws of 1941, p. 679, Rem.Supp.1941, § 7797-10. A hearing was accorded and held by the board on October 19, 1945. The board, by a vote of three to two, approved relators' application for extension of time to October 19, 1946, for the removal of the timber.
Despite that action by the board, respondent Case, being of the opinion that the board of state land commissioners had no jurisdiction or authority to hear or grant relators' application for extension and that the commissioner himself had sole authority in such matters, refused to grant the extension, on the ground, as stated in his letter to the relators under date of October 19, 1945, that their logging operations had been highly unsatisfactory and not in accordance with the spirit of the contracts. By a further letter, sent to the relators the next day, October 20th, the commissioner asserted his sole authority in the matter of granting extensions and notified relators that no further operatons of any kind would be permitted on the Olympic peninsula under any of the contracts, and that any such attempt on their part would be met by prosecution for trespass.
On February 28, 1946, which was one hundred thirty-one days after the commissioner's announcement of his decision relaters initiated the...
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...jurisdiction.' State ex rel. O'Connell v. Meyers, 51 Wash.2d 454, 459-60, 319 P.2d 828 (1957) (quoting State ex rel. Malmo v. Case, 25 Wash.2d 118, 123, 169 P.2d 623 (1946)). In our view, there is sufficient public interest in whether a referendum before the voters at the general election w......
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...1203 (2003) (quoting State ex rel. O'Connell v. Meyers, 51 Wash.2d 454, 459-60, 319 P.2d 828 (1957)) (quoting State ex rel. Malmo v. Case, 25 Wash.2d 118, 123, 169 P.2d 623 (1946)). In order to determine whether mandamus will lie, we must determine not only whether the duty is discretionary......
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Table of Cases
...22.2(2)(c) State ex rel. Lundberg v. Superior Court for King Cnty., 173 Wash. 657, 24 P.2d 76 (1933): 8.6 State ex rel. Malmo v. Case, 25 Wn.2d 118, 169 P.2d 623 (1946): 22.2(5) State ex rel. M.M.G. v. Graham, 159 Wn.2d 623, 152 P.3d 1005 (2007), as amended (May 10, 2007): 10.3(2), 12.9(5) ......
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§ 22.2 Original Actions Against State Officers
...in all cases unless jurisdiction has been vested exclusively in some other court. Wash. Const. art. IV, §6; State ex rel. Malmo v. Case, 25 Wn.2d 118, 122, 169 P.2d 623 (1946). Article IV, §6, also authorizes superior courts to issue writs, including writs of mandamus, quo warranto, and pro......