State ex rel. Tattersall v. Yelle

• Decision Date: 15 September 1958
• Docket Number: No. 34674,34674
• Citation: 52 Wn.2d 856,329 P.2d 841
• Court: Washington Supreme Court
• Parties: The STATE of Washington, on the Relation of Jennie M. TATTERSALL, Appellant, v. Cliff YELLE, as State Auditor, Respondent.

Page 856

52 Wn.2d 856

329 P.2d 841

The STATE of Washington, on the Relation of Jennie M TATTERSALL, Appellant, v. Cliff YELLE, as State Auditor, Respondent.

No. 34674.

Supreme Court of Washington, En Banc.

Sept. 15, 1958.

Kelley, O'Sullivan & Spiller, Seattle, for appellant.

John J. O'Connell, Atty. Gen., Elvin J. Vandeberg, Asst. Atty. Gen., for respondent.

OTT, Justice.

Jennie M. Tattersall, a resident and taxpayer of this state, commenced this action to restrain the state auditor from issuing a warrant upon the state treasury for the purpose of defraying this state's portion of the operating costs of the Western Interstate Commission for Higher Education, as provided by Laws of 1955, chapter 214, p. 899.

Plaintiff challenged the validity of the act (upon the grounds which we will hereinafter discuss) and alleged that her demand upon the attorney general to institute this action had been refused. From the judgment of the trial court denying the relief sought, the plaintiff has appealed.

Respondent moves to dismiss the appeal. He contends first that, since appellant has not alleged or proved that she has or will suffer special injury by the issuance of the warrants, she cannot maintain this action to enjoin the expenditure of state funds. In support of this contention, respondent cites State ex rel. Juenemann v. Superior Court, 1930, 157 Wash. 429, 289 P. 28; State ex rel. Dunbar v. State Board of Equalization, 1926, 140 Wash. 433, 249 P. 996; State ex rel. Pierce County v. Superior Court, 1915, 86 Wash. 685, 151 P. 108; Bilger v. State, 1910, 60 Wash. 454, 111 P. 771; Birmingham v. Cheetham, 1898, 19 Wash. 657, 54 P. 37; Jones v. Reed, 1891, 3 Wash. 57, 27 P. 1067.

These cases are not apposite for the reason that, subsequent to these decisions, the legislature, in 1935, enacted the declaratory judgment act, RCW 7.24.010 et seq. Our question here is: Does the declaratory judgment act grant to a resident taxpayer the right to test the constitutionality of an act, when the attorney general has declined to do so?

In State ex rel. Lemon v. Langlie, 1954, 45 Wash.2d 82, 88 et seq., 273 P.2d 464, 468, this court said, quoting with approval from Reiter v. Wallgren, 1947, 28 Wash.2d 872, 184 P.2d 571:

'* * * We never have held that, in a proper case where the attorney general refused to act to protect the public interest, a taxpayer could not do so.'

'We then laid down this rule:

"In the absence of a statute governing suits by taxpayers, a demand upon the proper public officer to take appropriate action is a condition precedent to the maintenance of a taxpayer's action challenging the validity and legality of what public officers are intending to do or have done, unless facts are alleged which sufficiently show that the demand to bring suit would have been useless.' * * *

'The question involved in the Reiter case, supra, was whether a taxpayer could maintain an action against state officials involving a matter of public concern without having a direct pecuniary interest in the actions of the officials which were challenged by the suit. To decide that question it was necessary for the court first to determine whether any taxpayer, under any circumstances, could maintain such a suit. If that question had been answered in the negative, it would have disposed of the action completely.

'After consideration of the ten prior cases cited by the taxpayer involved in that case this court answered the question in the affirmative. * * *

'* * * Since, prior to instituting the present mandamus proceeding, they [relators] had demanded that The Attorney General take legal steps to cure the alleged illegal actions on the part of respondents and since the Attorney General had refused to act, relators are entitled to bring this action and thus they have capacity to sue.'

In Miller v. City of Pasco, 1957, 50 Wash.2d 229, 231, 310 P.2d 863, 864, we said:

'* * * This is a declaratory judgment proceeding in which an act of the legislature is challenged as being unconstitutional. The uniform declaratory judgments act (RCW7.24) specifies who may institute such proceedings.

'RCW 7.24.020 [cf. Rem.Rev.Stat. (Sup.), § 784-2] provides in part:

"A person interested * * * whose rights, status or other legal relations are affected by a statute, municipal ordinance, * * * may have determined any question of construction or validity arising under the * * * statute, ordinance, * * * and obtain a declaration of rights, status or other legal relations thereunder.'

'RCW 7.24.050 [cf. Rem.Rev.Stat. (Sup.), § 784-5] provides in part:

"The enumeration in RCW 7.24.020 * * * does not limit or restrict the exercise of the general powers conferred in RCW 7.24.010, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.'

'RCW 7.24.120 [cf. Rem.Rev.Stat. (Sup.) § 784-12] provides:

"This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.'

'Applying the legislative mandate of liberal construction to the facts in this case, the record establishes that John L. Miller is a resident and taxpayer of Pasco, and otherwise meets the qualifications of an interested person, as defined by RCW 7.24.020, supra.'

We adhere to the interpretation, in the cited cases, of the declaratory judgment act, and hold that the act authorizes the appellant, as a taxpayer of this state, to challenge the constitutionality of chapter 214, since the attorney general has refused to do so.

Respondent's second argument in support of his motion to dismiss the appeal is that, since the subject of this action is the validity of an interstate compact, the Federal courts have exclusive jurisdiction to determine its constitutionality.

The issue raised by this proceeding is not one between the sovereign states which have entered into the compact, but one in which a taxpayer of one of the contracting states questions the right of the auditor of that state to transfer funds under the act.

This court considered a similar contention in State ex rel. Oregon State Highway Commission v. Yelle, 1955, 47 Wash.2d 804, 807, 289 P.2d 1027, 1029, which decision is adverse to respondent's contention. In that case, we said:

'Passing the question of whether the jurisdiction of the United States supreme court is exclusive, we hold that this is not a controversy between states. * * * the only controversy is whether our state auditor is refusing to perform a duty which he can and should be compelled to perform. [Citing cases.] Quite clearly, this court has original jurisdiction in 'mandamus as to all state officers', Washington state constitution, Art. IV, § 4, and can issue a writ of mandate to compel the issuance of the warrants to which reference has been made. The fact that the Oregon state highway commission is one of the parties seeking this writ of mandate to compel the auditor to perform what is claimed to be his duty cannot make this proceeding a controversy between states.'

Respondent's motion to dismiss the appeal is denied.

Appellant's first contention is that the legislature does not have authority, under the constitution, to enter into the interstate compact provided by chapter 214.

The state constitution is not a grant, but a restriction, of legislative power, and the power of the legislature to enact laws is unrestrained except where it is expressly or inferentially prohibited by the state or Federal constitution. In re Bartz, 1955, 47 Wash.2d 161, 287 P.2d 119; Gruen v. State Tax Commission, 1949, 35 Wash.2d 1, 211 P.2d 651; State ex rel. New Washington Oyster Co. v. Meakim, 1949, 34 Wash.2d 131, 208 P.2d 628.

Where there is no constitutional limitation upon the legislature to enter into compacts with sister states, all doubts must be resolved in favor of its power to do so. Union High School District No. 1, Skagit County v. Taxpayers of Union High School District No. 1, of Skagit County, 1946, 26 Wash.2d 1, 172 P.2d 591, and cases cited. We do not find in the state constitution any limitation upon the power of the legislature to contract with its sister states. Art. I, § 10, of the Federal constitution, provides that states may enter into interstate compacts when authorized by Congress. Congress has approved the compact with which we are here concerned by chapter 380, 67 Stat. 490. Since there is no constitutional limitation upon the power of the legislature to contract in this regard, and Congress has consented thereto, we find no merit in appellant's contention.

Appellant next contends that chapter 214 delegates to the resident commissioners of this state, and to the interstate commission, legislative authority without adequate standards for the proper exercise of such authority, and that it therefore violates amendment 7 of the state constitution.

Appellant merely makes the averment of inadequate standards. She does not specify what legislative authority is granted to the commission or what necessary standards are lacking. Such averments do not raise a justiciable issue. King County v. Port of Seattle, 1950, 37 Wash.2d 338, 345, 223 P.2d 834; Randles v. Washington State Liquor Control Board, 1949, 33 Wash.2d 688, 206 P.2d 1209, 9 A.L.R.2d 531. See, also, Gattavara v. Scheumann, 1957, 51 Wash.2d 55, 315 P.2d 649.

Appellant next contends that the provision of the act making the commission a body corporate, with power to sue and be sued, is violative of Art. II, § 28, of the state constitution, which prohibits the enactment of private or special laws granting corporate powers or privileges.

We cannot agree with appellant's premise that the commission is not a state agency.

Article III of the compact provides that the commission 'shall be a body corporate of each compacting state and territory and an...