State ex rel. Shomaker v. Superior Court for King County

• Decision Date: 09 February 1938
• Docket Number: 26965.,26924,26964
• Citation: 76 P.2d 306,193 Wash. 465
• Parties: STATE ex rel. SHOMAKER v. SUPERIOR COURT FOR KING COUNTY (two cases. STATE ex rel. LUNG v. SAME.
• Court: Washington Supreme Court

76 P.2d 306

193 Wash. 465

STATE ex rel. SHOMAKER v. SUPERIOR COURT FOR KING COUNTY (two cases.

STATE ex rel. LUNG v. SAME.

Nos. 26924, 26964, 26965.

Supreme Court of Washington, En Banc.

February 9, 1938

Original mandamus proceedings by the State of Washington, on the relation of Luella Shomaker, administratrix of the Estate of Joel Buell Shomaker, deceased, and on the relation of Luella Shomaker, and on the relation of Henry W. Lung, against the Superior Court of the State of Washington for King County the Honorable James B. Kinne, Judge thereof, to compel the court to assume jurisdiction in proceedings for old age pensions.

Writs of mandate denied.

G. W Hamilton, Atty. Gen., and Harry L. Parr, Asst. Atty. Gen for respondent.

SIMPSON Justice.

This action is an original petition in this court by relators for writs of mandate to compel the superior court of King county to assume jurisdiction in an action brought in that court against Charles F. Ernst, director of the Department of Social Security, and Nelson B. Neff, supervisor of old age assistance for the state of Washington.

Three actions are consolidated in this court for argument and decision, for the reason that they present the same question for determination.

The petition of relator Joel Buell Shomaker alleges that he has no income except $12 per month which he receives in the nature of a pension from the United States Army; that he applied for old age assistance and his application was denied (not stated by whom). Being dissatisfied with this ruling, in accordance with section 12, page 706, chapter 180, Laws of 1937, Rem.Rev.Stat.Sup. § 10007-112, he appeared Before the board of county commissioners of King county on October 4, 1937, and, after a hearing, such board granted the application and directed the payment of $18 monthly to the relator, none of which has been paid; that thereafter he sued out an alternative writ of mandate in the superior court of King county, which was returnable on November 15, 1937, at which time hearing was had. Thereafter the trial court prepared a memorandum opinion in which it stated that the writ prayed for by relator sought to compel the state officers to issue warrants on state funds, and that therefore the suit was one involving the state and its funds and came directly within the provisions of Rem.Rev.Stat.§ 886, and should be brought in the superior court for Thurston county.

The relator died Before this matter was finally presented in this court, and on January 3, 1938, an order was made substituting Luella Shomaker, administratrix, as relator in this action.

Relator Luella Shomaker contends in her application for a writ of mandate that she applied for public old age assistance, which was rejected by Ernst and Neff; that thereafter, being dissatisfied with such decision, she appeared Before the board of county commissioners of King county relative to her objections to such rejection, in accordance with section 12, page 706, chapter 180, Laws of 1937; that the board of county commissioners granted the application, reversed the above ruling, and directed the payment of $30 monthly to relator. She contends that Director Ernst and Supervisor Neff refused to recognize the decision of the board of county commissioners and have refused to pay her the public old age assistance of $30 per month, paying her only the sum of $17 per month; that thereafter she applied for a writ of mandamus in the superior court of King county to compel director Ernst and supervisor Neff to pay to her the sum of $30 per month. Hearing was had thereon, and the trial court made an oral decision to the same effect as contained in its memorandum opinion in the case of Joel Buell Shomaker.

Relator Henry W. Lung alleges in his petition for a writ of mandate as follows: 'That on June 1, 1937, the relator applied for old age assistance under the Social Security Laws of the State of Washington; that although the relator is fully eligible in every manner for the payment of the old age assistance for which he applied, he has received no notice of any kind of any decision by the Department of Social Security or any of its agents, either in writing or orally, nor has he been granted any old age assistance of any kind whatsoever; that the failure of Charles F. Ernst and Nelson B. Neff to render a decision in writing upon the application of the relator within three (3) months from the date said application was filed and to render him the old age assistance prescribed by the statutory law of this state, is wholly arbitrary and unlawful. * * *' (Italics ours.) Thereafter he applied for a writ of mandate in the superior court of King county to compel Director Ernst and Supervisor Neff to render their decision in writing on the question of whether relator's application for old age assistance was approved or rejected. Upon a hearing on that case the trial court orally made the same decision as contained in its memorandum opinion in the case of Joel Buell Shomaker.

Entry of the formal orders embodying these rulings was delayed by the superior court in order to afford an opportunity for the relators to apply to this court for writs of mandate.

The question presented for decision in the cases of Joel Buell Shomaker and Luella Shomaker is whether or not the superior court of King county had jurisdiction to hear and determine an action brought against Director Ernst and Supervisor Neff for the purpose of requiring them to spend money for old age assistance. It is plain that Director Ernst and Supervisor Neff are state officers and that the money to be expended for old age assistance comes from the state fund. Chapter 111, page 442, Laws of 1937, creates the Department of Social Security and provides for the appointment of several state officers, among whom are a director of social security and a supervisor of old age pensions. Section 18, page 708, chapter 180, Laws of 1937, makes an appropriation of money from the general fund of the state for the purpose of paying old age assistance.

Since Charles F. Ernst and Nelson B. Neff are state officers and are admittedly acting under a valid statute in the capacity of state officers and relators Joel Buell Shomaker and Luella Shomaker seek payment of money from a state fund, the actions must be brought in Thurston county.

The rule is well settled that an action cannot be maintained against the state without its consent and, when the state does so consent, it may fix the forum in which it may be sued.

Article 2, section 26, of the State Constitution, provides: 'The legislature shall direct by law in what manner and in what courts suits may be brought against the state.'

Rem.Rev.Stat. § 886, in giving effect to this provision, provides: 'Any person or corporation having any claim against the state of Washington shall have a right of action against the state in the superior court of Thurston county.'

Interpreting the above section of the Code in its application we said in State ex rel. Pierce County v. Superior Court, 86 Wash. 685, 151 P. 108, 109:

'It is well settled that an action cannot be maintained against the state without its consent, and that the state, when it does so consent, can fix the place in which it may be sued, limit the causes for which the suit may be brought, and define the class of persons by whom it can be maintained. In other words, the state being sovereign, its power to control and regulate the right of suit against it is plenary; it may grant the right or refuse it as it chooses, and when it grants it may annex such condition thereto as it deems wise, and no person has power to question or gainsay the conditions annexed. This state has by its Constitution (article 2, § 26) empowered the Legislature to direct by law in what manner and in what courts suits may be brought against it, and the Legislature has provided that all such suits shall be brought in the superior court of Thurston county. Rem. & Bal.Code, § 886 [P.C. 453 § 9].

'The suit in question, while in form a suit against certain of its executive officers in their representative capacities, is in essence and effect a suit against the state. The suit is instituted to restrain these officers, the one from certifying that certain sums payable out of the state treasury has been earned in the performance of a contract in which the state has an interest, and the other from drawing warrants on the state treasury for the payment of such certificates, if any are so presented to him. The funds involved are the funds of the state. The officers sought to be enjoined have no interest in the funds. They are merely the agents of the state by and through whom the state acts.' (Italics ours).

In State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d 693, 695, in an action which was brought to compel the regents of the State University to reimburse plaintiff for funds theretofore taken from him for tuition fees in the University and further to restrain the regents from making certain additional charges for tuition, this court held that such action was one against the state and must be brought in Thurston county, since the relief sought affects the right of the state to collect revenue paid into the state treasury. It was said by the court: 'Here the state is interested in the enforcement of one of its laws designed to produce revenue for the help and maintenance of its University. In this affair the state has a real, direct, and positive interest.'

In State ex rel. Slade v. Jones, 182 Wash. 94, 45 P.2d 30, 31, it was sought to compel the superior court of King county to assume jurisdiction of an action against the state which involved the recovery of damage occasioned by reason of the flooding of certain lands during the construction...