State v. Kuykendall, 19235.

• Decision Date: 26 May 1925
• Docket Number: 19235.
• Citation: 236 P. 99,134 Wash. 620
• Court: Washington Supreme Court
• Parties: STATE ex rel. HOME TELEPHONE & TELEGRAPH CO. OF SPOKANE v. KUYKENDALL et al., State Board of Public Works.

236 P. 99

134 Wash. 620

STATE ex rel. HOME TELEPHONE & TELEGRAPH CO. OF SPOKANE v. KUYKENDALL et al., State Board of Public Works.

No. 19235.

Supreme Court of Washington

May 26, 1925

Department 1.

Appeal from Superior Court, Thurston County; Wilson, Judge.

Application for writ of review by the State, on relation of the Home Telephone & Telegraph Company of Spokane, against E. V Kuykendall, as Director of Public Works of Washington, and others, constituting the Board of Public Works of the State of Washington. From a judgment quashing writ and dismissing proceeding, applicant appeals. Affirmed.

Otto B Rupp, of Seattle, Post, Russell & Higgins, of Spokane, and Pillsbury, Madison & Sutro, of San Francisco, Cal. (W. V Tanner, of Seattle, of counsel), for appellant.

Preston, Thorgrimson & Turner, of Seattle, John H. Dunbar and H. C. Brodie, both of Olympia (J. M. Geraghty and Alex M. Winston, both of Spokane, of counsel), for respondents.

MAIN J.

This is an appeal from an order of the superior court of Thurston county, quashing a writ of review, and dismissing the proceeding.

The appellant operates a telephone exchange plant in the city of Spokane and the rural territory immediately adjacent thereto. On March 31, 1923, the Department of Public Works entered an order finding the value of the appellant's property for the purpose of rate making. On September 22, 1924, the appellant filed a petition in the superior court of Thurston county, asking for a review of that order. The superior court entered an order quashing the writ and dismissing the proceeding because the application had not been timely made. It will be observed that almost 18 months elapsed after the Department made its valuation finding before the application was made for a writ of review.

The controlling question is whether the application was made in time. Section 86 of the Public Service Commission Law (Laws 1911, c. 117), so far as material to this proceeding, provides:

'Any complainant or any public service company affected by any order of the Commission, and deeming it to be contrary to law, may, within thirty days after the service of the order upon him or it, apply to the superior court of the county in which such proceeding was instituted for a writ of review, for the purpose of having its reasonableness and lawfulness inquired into and determined.'

It will be noticed that that section is general, and applies to any complaint or any public service company, and requires that if an order of the Department is sought to be reviewed, the application must be made to the superior court within 30 days after the service of the order. Section 92 of the act was amended by chapter 182 of the Laws of 1913 and as amended is section 10441 of Rem. Comp. Stat. The provision of the 1913 act with respect to the review of the valuation order is the same as section 92 of the original act, and reads as follows:

'Any company affected by the findings, or any of them, believing such findings, or any of them, to be contrary to law or the evidence introduced, or that such findings are unfair, unwarranted or unjust, may institute proceedings in the superior court of the state of Washington in the county in which said hearing has been held, or, if held in more than one county, then in the county in which said hearing was commenced, and have such findings reviewed, and their correctness, reasonableness and lawfulness inquired into and determined.'

This is the section that overs the matter of the valuation findings entered by the Department. There is no provision specifying the time when the application for review of the findings must be made. There is the general provision that the company affected by the findings may institute proceedings in the superior court to have the same renewed.

In Spooner v. Seattle, 6 Wash. 370, 33 P. 963, it was held that the writ of certiorari or review, as it is now called, is in the nature of an appeal, and, where no time is fixed by the statute for making an application therefor, it shall be applied for within a reasonable time after the act complained of has been done. It was there said:

'The writ of certiorari is in the nature of an appeal, and, while the statute does not fix the time within which the writ should be applied for, it should be applied for within a reasonable time after the act complained of has been done, and two years and upwards was not a reasonable time.'

In condemnation proceedings, the order of public use and necessity can only be reviewed by certiorari, and the statute does not fix the time within which the application shall be made. The statute does provide that an appeal from the judgment for damages must be taken within 30 days. It has been consistently held by this court that the application for the writ to review the order of public use and necessity must be made within 30 days after the entry of the order. State ex rel. Alexander v. Superior Court, 42 Wash. 684, 85 P. 673; State ex rel. Tumwater, etc., Co. v. Superior Court, 56 Wash. 287, 105 P. 815; State ex rel. Grays Harbor Logging Co. v. Superior Court, 100 Wash. 485, 171 P. 238.

In State ex rel. Blackman v. Superior Court, 82 Wash. 134, 143 P. 889, it was held that, even though the primary election law fixed no time in which a contest should be instituted, such a contest was governed by the 10 days fixed under the general election laws. It was there said:

'The respondent, in answer to the writ, argues that the application for a writ of certiorari comes too late. This position must be sustained. Rem. & Bal. Code, § 4829 (P. C. 167, § 329), under which the contest was initiated in the superior court for Franklin county, makes no

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