State ex rel. Northwestern Elec. Co. v. Superior Court for Clark County

• Decision Date: 18 April 1947
• Docket Number: 30122.
• Citation: 27 Wn.2d 694,179 P.2d 510
• Parties: STATE ex rel. NORTHWESTERN ELECTRIC CO. et al. v. SUPERIOR COURT FOR CLARK COUNTY.
• Court: Washington Supreme Court

179 P.2d 510

27 Wn.2d 694

STATE ex rel. NORTHWESTERN ELECTRIC CO. et al. v. SUPERIOR COURT FOR CLARK COUNTY.

No. 30122.

Supreme Court of Washington, En Banc.

April 18, 1947

Original certiorari proceeding by the State of Washington, on the relation of Northwestern Electric Company and others, against the Superior Court for Clark county, H. G. Sutton, Judge thereof, to review a decree of public use and necessity entered by respondent in an eminent domain proceeding conducted by Public Utility District No. 1 for acquisition of certain electrical properties of relators. On respondent's motion to quash the writ of certiorari.

Motion denied.

SCHWELLENBACH J., MALLERY, C.J., and ABEL and JEFFERS, JJ., dissenting.

D Elwood Caples, of Vancouver, and Houghton, Cluck & Coughlin of Seattle, for respondent.

MILLARD Justice.

November 2, 1946, on application of relators, who gave no notice to respondent or to the public utility district of presentation of their application for the writ, the chief justice of this court entered an order directing issuance of writ of certiorari to review a decree of public use and necessity entered October 5, 1946 by the superior court for Clark county in eminent domain proceedings conducted by Public Utility District No. 1 for the acquisition of certain electrical properties of relators.

Respondent appeared and moved that the writ of certiorari be quashed for the reason that the writ issued is peremptory rather than alternative in form, hence may not be issued without notice to the adverse parties under Rule XXX, Rules of the Supreme Court, which provides that,

'* * * When made without notice, except as to writs which issue as a matter of right, only an order to show cause or an alternative writ will be issued. * * *'

A second ground urged by respondent for quashing the writ is that Rule V, Rules of the Supreme Court, requires that an appeal from any order other than a final order from which an appeal is allowed must be taken within fifteen days after the entry of such order; therefore, as the order or decree of public use and necessity is not a final judgment and as the rule governing appeals is applicable in review by certiorari, the writ should be quashed because not perfected within fifteen days.

Respondent also argues that certiorari will not lie to review the decree of public use and necessity because relators have an adequate remedy by appeal.

A department of this court entered an order--no opinion was filed--granting under Rule XXX, Rules of the Supreme Court, the motion to quash the writ. The matter is now Before us for rehearing en banc on petition of relators therefor.

Three questions are posed by respondent's motion to dismiss:

1. Was the writ of certiorari in the case at bar issuable as a matter of right and without notice?

2. Is the order or decree of public use and necessity in the case at bar a final judgment, appeal from which, or review of by certiorari, required to be perfected within thirty days?

3. Have relators an adequate remedy by appeal?

The first and second questions are answered in the affirmative and the third question in the negative for the following reasons:

Rule XXX, Rules of the Supreme Court, so far as pertinent, reads as follows:

Applications for original writs, other than writs of habeas corpus, shall be made to the chief justice, and may be made either with or without notice to the adverse party. When made without notice, except as to writs which issue as a matter of right, only an order to show cause or an alternative writ will be issued. * * *'

If we have a statute which provides that alleged error inhering in a decree of public use and necessity may be reviewed on appeal, ordinarily the decree may not be reviewed by writ of certiorari; that is, the condemnee has a right to a review of such errors by certiorari if no provision is made for appeal for that purpose. If an appeal is available at any stage of the eminent domain proceedings to review such questions, an adequate remedy is provided. If an appeal is not available the decree of public use and necessity is a final judgment reviewable by writ of certiorari as a matter of right in aid of the appellate jurisdiction of this court. The statute, Rem.Rev.Stat. § 1002, reading as follows, grants this right:

'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.'

It is clear from a reading of the foregoing statute that where there is no right of appeal by which review may be had of alleged errors in a decree of public use and necessity such decree is a final judgment which may be reviewed only by writ of certiorari, which, of course, issues as a matter of right. If there is a right of appeal and the question presented is whether the appeal provides a plain, speedy and adequate remedy, the writ of certiorari may issue only in the discretion of the court.

In State ex rel. Abbott et al. v. Superior Court for Skagit County et al., 119 Wash. 26, 204 P. 815, 816, the relators applied for a writ of certiorari to review a decree of public use and necessity in a condemnation case. The condemnors in that case were commissioners of a drainage district who sought to acquire lands necessary for a system of drainage. In granting the writ we said:

'* * * The sole question is whether the relators have made a sufficient showing to justify the issuance of the writ of review. The adjudication of an order of use and necessity in a condemnation proceeding cannot be reviewed by appeal, but only in a proceeding like this. Calispel Diking Dist. [No. 1, of Stevens County] v. McLeish, 63 Wash. 331, 115 P. 508; Chicago, M. & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 P. 706. The statute, section 1002 of Remington's 1915 Code (P. C. § 7418), provides that a writ of review shall be granted to correct any erroneous or void proceeding, or 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.' Section 1003 (P. C. § 7419) provides, among other things, that the writ may be granted without notice. It will be observed that section 1002 would seem to require the writ to be issued where there is no appeal, but that if the question were whether the appeal was an adequate remedy the court would be required to exercise discretion Before the issuance of the writ. The statute says that the writ shall be granted to correct an erroneous proceeding or proceeding not according to the course of the common law when there is no appeal. In State ex rel. McCormick v. Superior Court, 43 Wash. 91, 86 P. 205, it was held that the application for the writ must disclose some apparent error Before the writ will be issued. In that case the writ was denied, but the relator there did not allege any distinct ground or particular claim of error. The sections of the statute above mentioned were not referred to in the opinion.'

In State ex rel. Bremerton Bridge Co. v. Superior Court for Kitsap County, 194 Wash. 7, 76 P.2d 990, a peremptory writ of certiorari was issued to review a decree of public use and necessity entered in a condemnation action instituted by the state. The state, represented by the attorney general, filed a motion to quash the writ, or in the alternative to strike the stay order contained therein, upon the ground that the order for a writ of review was improvidently issued. In denying the motion we stated that it is the settled law of this state that an adjudication of public use in condemnation proceedings may not be reviewed by appeal, but only by certiorari; that an order declaring a public use becomes final unless review thereof be taken to this court within the period prescribed by the statute after the entry of such order. As relators have no right of review by appeal, they are entitled to a writ of certiorari as a matter of right.

Two opinions of this court are to the contrary: City of Tacoma v. Nisqually Power Co., 54 Wash. 292, 103 P. 49 and State ex rel. Bremer v. Superior Court for Kitsap County, 68 Wash. 51, 122 P. 614.

State ex rel. Washington Public Service Co. v. Superior Court for Pierce County, 86 Wash. 155, 149 P. 652, which was decided three years subsequent to State ex rel. Bremer v. Superior Court, supra, sustains the position of relators in the case at bar and sub silentio, overrules City of Tacoma v. Nisqually Power Co., supra, and State ex rel. Bremer v. Superior Court, supra. State ex rel. Washington Public Service Co. v. Superior Court, supra, has never been overruled or modified. Consistently the procedure prescribed in that opinion has been followed, even to the granting of writs of certiorari to review decrees of public use and necessity in eminent domain proceedings brought by public utility districts. See State ex rel. Willapa Electric Co. v. Superior Court for Pacific County, 196 Wash. 523, 83 P.2d 742; State ex rel. Washington Water Power Co. v. Superior Court for Grant County, 8 Wash.2d 122, 111 P.2d 577 and State ex rel. Washington Water Power Co. v. Superior Court for Douglas County, 8 Wash.2d 122, 111 P.2d 577.

The statute, Rem.Rev.Stat. § 11610(b), 1945 Supp., which grants to public utility districts the power to condemn, provides:

'* * * and such right of eminent domain shall be exercised and instituted pursuant to resolution of the Commission and conducted in...