State ex rel. New Washington Oyster Co., Inc. v. Meakim, 30910.

• Decision Date: 14 July 1949
• Docket Number: 30910.
• Citation: 208 P.2d 628,34 Wn.2d 131
• Court: Washington Supreme Court
• Parties: STATE ex rel. NEW WASHINGTON OYSTER CO., Inc. v. MEAKIM et al.

208 P.2d 628

34 Wn.2d 131

STATE ex rel. NEW WASHINGTON OYSTER CO., Inc. v. MEAKIM et al.

No. 30910.

Supreme Court of Washington

July 14, 1949

Department 1

Original proceeding in the Supreme Court by the State of Washington on the relation of the New Washington Oyster Company, Inc., a corporation, against Roger J. Meakim, president-judge Superior Court Judges' Association, and Clem Sargent and Jane Doe Sargent, his wife, for a writ of certiorari to review an order entered by the president-judge.

Order vacated and set aside.

Bell McNeil & Bowles, Seattle, for appellant.

Hull & Armstrong, Chehalis, for respondent.

BEALS Justice.

This proceeding was instituted Before this court under the title of 'The State of Washington, on the Relation of New Washington Oyster Co., Inc., a corporation, plaintiff, v. Roger J. Meakim, President-Judge, Superior Court Judges' Association, respondent, and Clem Sargent and Jane Doe Sargent, his wife, defendants.'

By an application for a writ of certiorari, relator seeks review of an order entered by Judge Roger J. Meakim, as the president-judge of the association of superior court judges of the state of Washington, praying that the writ issue, and that the order referred to be vacated and set aside. Upon the filing of the petition, an order to show cause why the writ should not issue was entered. In response to this order, a return was filed herein by respondent, and the cause submitted for decision upon respondent's demurrer to the application for the writ for want of sufficient facts.

The order which relator attacks reads as follows:

'Whereas the Honorable D. F. Wright, Judge of the Superior Court of the State of Washington, retired from office under the provisions of the retirement of Judges act (Chapter 229 of Laws of 1937, as amended),

'And Whereas said Judge at the time of his retirement had been elected for a term of office expiring in January, 1953,

'And Whereas prior to the retirement of said Judge the within cause had been tried on the merits Before him and upon conclusion of said trial the said Judge had rendered a memorandum decision in writing which has been filed in this cause but no formal judgment had been entered,

'And Whereas there is now pending a motion by the plaintiff for a new trial and for a rehearing,

'And Whereas the said D. F. Wright is physically able to hold court, and

'Whereas the undersigned is the President-Judge of the Association of Superior Court Judges of the State of Washington and it appears to him that it is necessary and proper that the said D. F. Wright should be required to hear the pending motion aforesaid in the above matter and to hear and consider such further matters during the term for which the said D. F. Wright has been elected as may arise in this cause,

'Now, Therefore, it is Ordered that the Honorable D. F. Wright, Judge of the Superior Court of the State of Washington, is directed and required to hold court at the Court House in Shelton, Mason County, Washington, in all matters in the above cause at such times as the matters shall be regularly noted to be heard Before him during the remainder of the term for which he was elected at the time of his retirement pursuant to the retirement of Judges act of the State of Washington aforesaid.'

This order bears the following stamp:

'Received and filed Jan. 25, 1949, Harry Deyette, Clerk of the Superior Court Mason County, Wash. By [signed] Harry Deyette.'

It is admitted that the Honorable D. F. Wright, after serving for many years as a judge of the superior court of the state of Washington for the district composed of Thurston and Mason counties, was again re-elected to that office November 2, 1948, and that, after qualifying pursuant to that election, Judge Wright retired from office, in accordance with the provisions of Laws of 1937, chapter 229, p. 1172, Rem.Rev.Stat. (Sup.) § 11054-1 et seq., as amended.

It is not disputed that, during his active service as a judge of the superior court for Mason county, Judge Wright presided at the trial of the action entitled 'New Washington Oyster Co., Inc., a corporation, plaintiff, v. Clem Sargent and Jane Doe Sargent, his wife, defendants,' being cause No. 5018 of the records of the court referred to; that proceedings were had in the course of that trial as stated in respondent's order above set forth; that no final judgment was entered in the action prior to Judge Wright's retirement, and that relator's motion for a rehearing and for a new trial are still pending Before the superior court for Mason county.

Relator contends that the order of respondent, above referred to, was made without constitutional or statutory authority, and that the same is void and should be vacated and set aside by this court.

Respondent argues that relator has mistaken its remedy and should have brought the matter Before this court by way of an application for a writ of quo warranto.

The writ of certiorari (the statutory writ of review) may be invoked for the purpose of reviewing judicial acts, and does not lie to review or annul judgments or orders which are legislative, executive, or ministerial acts rather than judicial.

In 10 Am.Jur. 533, § 10, appears the following text: 'At common law and under the practice in most jurisdictions, the writ of certiorari will lie to review only those acts which are judicial or quasi judicial in their nature. It does not lie to review or annul any judgment or proceeding which is legislative, executive, or ministerial rather than judicial.' Rem.Rev.Stat. § 1002, reads as follows: 'A writ of review shall be granted by any court, except a police or justice court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.'

Respondent's order, of which relator complains, is entitled 'In the Superior Court of the State of Washington for Mason County,' in the case referred to, was regularly filed in the office of the clerk of that court, and is, in form and substance, a judicial order, subject to review Before this court by way of an application for a writ of certiorari. State ex rel. Antonsen v. Superior Court for Grays Harbor County, 29 Wash.2d 725, 189 P.2d 219.

The order was evidently based upon that portion of Laws of 1943, chapter 37, § 1, p. 75, Rem.Supp.1943, § 11054-4, amending Laws of 1937, chapter 229, § 4, p. 1174, Rem.Rev.Stat. (Sup.) § 11054-4, which reads as follows: 'That every judge of the superior court of the State of Washington who shall have retired from office under the provisions of this act, during the balance of the term for which he shall [have] been elected, shall, if physically able, hold court when and where required to do so by the president-judge of The Association of the Superior Court Judges of the State of Washington, without compensation, but he shall be paid his necessary expenses by the county where so engaged; and every judge of the Supreme or Superior Court of the State of Washington who shall have retired from office under the provisions of this act, may be required to act as judge pro tem, if physically able, when so appointed by the presiding judge of the superior court of any judicial district in this state, without compensation, but he shall be paid his necessary expenses by the county where so engaged. * * *'

By Laws of 1933, Ex.Sess., chapter 58, p. 160, Rem.Rev.Stat. (Sup.) § 11051-1 et seq., the legislature established 'the association of the superior court judge of the State of Washington,' and defined the duties and powers of the association and of its president.

Article IV of the constitution of this state established the basic law of our judicial system, § 1 thereof reading as follows: 'The judicial power of the state shall be vested in the supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide.'

Article IV, § 5, reads in part as follows: 'There shall be in each of the organized counties of this state a superior court, for which at least one judge shall be elected by the qualified electors of the county at the general state election: Provided, that until otherwise directed by the legislature one judge only shall be elected for the counties of Spokane and Stevens; * * * one judge for the counties of Thurston, Chehalis, Mason, and Lewis; * * *.'

Pursuant to this section, the legislature has, from time to time, changed the judicial districts of the state and increased the number of judges of the superior court.

Article IV, § 7, includes, inter alia, the the following provision: '* * * A case in the superior court may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant or their attorneys of record, approved by the court, and sworn to try the case.'

By art. IV of the constitution of this state, the superior court was established and it is, therefore, a constitutional and not a statutory court. By §§ 5 and 7, it is provided that a judge of the superior court may, under circumstances set forth in these sections, preside over courts in counties other than the county or counties constituting the judicial district in which he was elected.

By Laws of 1927, chapter 135, § 1, p. 116, Rem.Rev.Stat. § 11045-1, it was provided that there should be two judges of the superior court 'in the counties of Mason and Thurston jointly.'

We take judicial notice of the fact that, upon the voluntary retirement of Judge Wright,...