State ex rel. Thielicke v. Superior Court for Thurston County

• Decision Date: 27 June 1941
• Docket Number: 28405.
• Parties: STATE ex rel. THIELICKE et al. v. SUPERIOR COURT FOR THURSTON COUNTY.
• Court: Washington Supreme Court

114 P.2d 1001

9 Wn.2d 309

STATE ex rel. THIELICKE et al. v. SUPERIOR COURT FOR THURSTON COUNTY.

No. 28405.

Supreme Court of Washington

June 27, 1941

Department 1.

Original proceeding by the State, on the relation of Vera Thielicke and others, against the Superior Court for the County of Thurston and another for a writ of certiorari to review an order of respondent court denying a motion for change of venue.

Order affirmed.

Fred C. Campbell, of Seattle, for plaintiffs.

Smith Troy, George R. Stuntz, and R. A. Moen, all of Olympia, for respondent.

DRIVER Justice.

This is an original proceeding by writ of certiorari to review an order of the superior court for Thurston county denying a motion for change of venue.

The order was entered in an action brought by the relators against the state of Washington for damages which they claimed their real and personal property in King county had sustained from the construction of the tunnel approaches to the Lake Washington pontoon bridge. After the state had answered, the relators moved that the place of trial be changed from Thurston county to King county on the statutory ground that 'the convenience of witnesses and the ends of justice would be forwarded by such change.' The court denied the motion but recited in its order that '* * * the court would on the admitted facts, in the exercise of its judicial discretion, order the place of trial of said action changed from Thurston County, where it is now pending, to King County, Washington, except for the reason that the court is of the opinion that the court has no power or jurisdiction to order such a change, * * *.' The sole question for determination is whether, under the circumstances just stated, the superior court had the power to order a change of venue.

A sovereign state cannot be sued without its consent. The immunity is absolute, and, when consent is given, it may be qualified or conditional and may specify a particular court in which the permitted actions may be maintained. The principle seems too axiomatic to require citation of supporting authority, but for a clear earlier enunciation of it by this court see State ex rel. Pierce County v. Superior Court, 86 Wash. 685, 688, 151 P. 108.

The foundation for actions against this state was laid by Art II, § 26, of the constitution: 'The legislature shall direct by law in what manner and in what courts suits may be brought against the state.' Such a constitutional provision is not self-executing. It does not become operative until the legislature has acted. See subd. IV, pp. 1472 1474, of the annotation entitled 'Consent to suit against state,' 42 A.L.R. 1464.

The legislature acted in 1895 by the passage of chapter XCV of the laws of that session. The first sentence of § 1, p. 188 provided that: 'Any person or corporation having any claim against the State of Washington shall have the right to begin an action against the state in the superior court of Thurston county.' (Italics ours.)

The section, as amended by Laws of 1927, chapter 216, p. 331, § 1, is now embodied in Rem.Rev.Stat. § 886. The amendatory act added a proviso to the effect that certain actions affecting real property in which the state is a necessary or proper party may be maintained in the superior court of the county in which the property is situated. It also changed the above-quoted portion of the prior law to read as follows: '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.' (Italics ours.)

The decisions of this court have uniformly indicated that we regard Rem.Rev.Stat. § 886, as a statute of jurisdiction rather than merely one of venue. We have many times held that, when a suit against the state is commenced in a superior court outside Thurston county, such court does not have jurisdiction of the action. State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d 693; State ex rel. Slade v. Jones, 182 Wash. 94, 45 P.2d 30; Weber v. School Dist. No. 7, 185 Wash. 697, 56 P.2d 707; State ex rel. Shomaker v. Superior Court, 193 Wash. 465, 76 P.2d 306; State ex rel. Price v. Peterson, 198 Wash. 490, 88 P.2d 842.

In each of these cases, either the action was ordered dismissed after the service of summons had been quashed or a demurrer to the complaint had been sustained, or this court, on original petition for writ of mandate, declined to require the lower court to assume and exercise jurisdiction. This was done notwithstanding the provisions of Rem.Rev.Stat. § 208, that 'If an action is brought in the wrong county, the action may nevertheless be tried therein unless the defendant, at the time he appears and demurs or answers, files an affidavit of merits and demands that the trial be had in the proper county.'

It is significant that in none of the cases was there any intimation or suggestion that the place of trial might be changed to Thurston county, where the action properly should have been started.

Although State v. Superior Court, 167 Wash. 334, 9 P.2d 70, may seem, on first impression, to be contrary to the cited cases, yet it has been construed and distinguished by this court as in harmony with them. In that case, certain land owners sought to enjoin the state highway director from damaging their real property by changing the grade of a state highway without first instituting a condemnation action, as required by the state constitution, to ascertain the compensation to be paid for such damage. It was held that the suit could be maintained in Walla Walla county, where the land was situated.

The case was distinguished in State ex rel. Pate v. Johns, supra [170 Wash. 125, 15 P.2d 695], as follows: 'There [in the Walla Walla county case], the state was not the real party in interest entitling it to support its officers whose conduct, though in good faith, was threatening to damage one's private property in violation of the state's own Constitution; that kind of a situation creates no real interest on the part of the state.' Italics ours.)

This distinction was again recognized and approved in State ex rel. Slade v. Jones, supra [182 Wash. 94, 45 P.2d 31], purely upon money claims

' against the state for damaging real property without first starting condemnation proceedings. We declined to compel the superior court of the county wherein the land was situated to assume jurisdiction and held that the action could be brought only in Thurston county. And in State ex rel. Robinson v. Superior Court, 181 Wash. 541, 43 P.2d 993, 994, we cited the Walla Walla case in support of the conclusion that a suit to enjoin a state officer's threatened action 'without the zone, and wholly in excess, of his authority,' is not a suit against the state but against such officer.

The relators contend that the governing constitutional and statutory provisions require only that actions against the state be commenced in Thurston county, and that such actions, in common with all others, are subject to the general laws authorizing a change of venue. 'It is immaterial,' they say, 'whether Rem.Rev.Stat. § 886, P.C. § 6260, is a venue statute or confers jurisdiction,' as, in either event, the Thurston county superior court has the power, in the exercise of its discretion, to change the place of trial to another county.

As relators point out, we have held in a number of cases involving local actions...