State v. Gattavara, 25452.
| Decision Date | 01 July 1935 |
| Docket Number | 25452. |
| Court | Washington Supreme Court |
| Parties | STATE v. GATTAVARA et ux. |
Appeal from Superior Court, King County; Robert M. Jones, Judge.
Action by the State of Washington against V. Gattavara and wife wherein defendants were garnisheed. Judgment for plaintiff and defendants appeal.
Reversed with instructions.
Arthur E. Griffin, of Seattle, for appellants.
G. W Hamilton and J. A. Kavaney, both of Olympia, amici curiae.
Edw. S. Franklin, of Seattle, V. D. Bradeson, of Olympia, and Daniel Baker, of Seattle, for the State.
This action was instituted in the name of the state of Washington for and on behalf of the state department of labor and industries, to collect industrial insurance and medical aid delinquent premiums and statutory penalties from appellants for the benefit of the state workmen's compensation fund.
In its first cause of action, penalties in the aggregate of $900 were claimed in the complaint; in its second cause of action, $500 were demanded; in its third cause of action, $2,996.40; in its fourth cause of action $52.50; and in its fifth cause of action demanded an examination of the pay-roll books of appellants. At the same time an affidavit was filed for the issuance of writs of garnishment against five certain concerns, averring that they were believed to be indebted to appellants or had in their possession or under their control personal property or effects belonging to appellants.
On the affidavit, writs of garnishment were issued against the several garnishee defendants. The affidavit for garnishment was made and sworn to by Edw. S. Franklin, who deposed that he was one of the attorneys for respondent in the principal action. The complaint and summons in the principal action were signed by Edw. S. Franklin, V. D. Bradeson, and Daniel Baker.
A motion was made by appellants to quash the summons and dismiss the case because it was not brought by the Attorney General or by any one authorized by law to bring or maintain the action; and to quash the garnishment proceedings.
On the trial by the court without a jury, it found and concluded in favor of respondents only on its second cause of action for the recovery of $200 by way of penalty for failure to submit an estimate of the pay roll and make payment thereon when work began and dismissed all other causes of action.
On appeal, appellants assign six errors, but only three of them will be necessary to discuss, namely: In refusing to quash the service of summons and the garnishments and in entering any judgment against appellants. The rest will be disposed of by our determination herein.
Article 3, § 21, Washington Constitution, provides: 'The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.'
Laws 1929, c. 92, p. 177, which superseded other statutes relating to the powers and duties of the Attorney General, among other things provides:
'Sec. 3. The attorney general shall have the power and it shall be his duty: * * *
'2. To institute and prosecute all actions and proceedings for, or for the use of the state which may be necessary in the execution of the duties of any state officer; * * *
'To enforce the proper application of funds appropriated for the public institutions of the state, and to prosecute corporations for failure or refusal to make the reports required by law.'
It also requires the Attorney General to keep a record of all cases prosecuted or defended by him. Section 7 gives the Attorney General power to appoint all necessary assistants.
Respondent relies upon chapter 193, p. 909, Laws 1933, which, so far as pertinent, reads: 'The director of labor and industries shall have power to authorize any employee of the department who is an attorney admitted to practice law in the State of Washington to appear for the department in any action instituted for the purpose of collecting industrial insurance premiums.' Section 1.
It is argued by respondent that the lastquoted statute, being a later enactment, to that extent supersedes the former act.
Respondent also argues that only the Attorney General can raise the question as to the validity and effect of the last statute and that the Attorney General had not done so.
Neither is there any finding that the director of labor and industries has done so; nor that the Attorney General was or is cognizant of the institution and maintenance of this action. Indeed, the statute relied upon by respondent does not authorize such attorneys who are admitted to practice law in this state to institute actions and sign a summons, but only to appear for the department in actions which have been brought for the purpose of collecting industrial insurance premiums.
Although the constitutional provision above quoted is not self-executing, when the duties of the Attorney General are prescribed by statute and the statute has for its purpose the authorization of proper state officers to bring actions, that authority is exclusive. As such officer, the Attorney General might, in the absence of express legislative restriction to the contrary, exercise all such power and authority as the public interest may, from time to time, require. 6 C.J. 812. See, also, State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433, 249 P. 996; State ex rel. Clithero v. Showalter, 159 Wash. 519, 293 P. 1000.
At an early date this court announced the rule that courts of equity would not be allowed to entertain suits to restrain the act of state officers in misappropriating public funds on the petition of a mere citizen and taxpayer, as the Attorney General of the state is the proper party to institute suit involving the disposition of the revenue of the state. Jones v. Reed, 3 Wash. 57, 27 P. 1067. We there held that the law then in force provided such an officer for an especial duty and that it was a better policy to submit such litigation to his guidance. We reaffirmed that rule and cited other previous cases in the Clithero Case, supra.
Respondent cites State ex rel. State Board of Medical Examiners v. Clausen, 84 Wash. 279, 146 P. 630, 632, as holding that the Legislature possesses the power to authorize state agencies to employ private counsel.
We do not interpret that case as so holding, as all it held was that there was no statute involved in that case which authorized state officers to employ other counsel than the Attorney General. We there said, among other things:
At all events, the section of the 1933 act relied upon by respondent does no more than confer power upon such attorneys who are admitted to practice law in this state to appear for the department in any action instituted for the purpose of collecting industrial insurance premiums, but does not authorize such attorneys employed by the department to institute such actions. The Attorney General must exercise his judgment as to whether the action shall be instituted. Another statutory provision, which has an important bearing, section 7697, Rem. Rev. Stat., relating to this department, in part reads: 'The attorney general shall be the legal adviser of the joint board and shall represent it in all proceedings.'
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