State v. Morgan

• Decision Date: 08 October 1924
• Docket Number: 18771.
• Parties: STATE ex rel. CHEALANDER et al. v. MORGAN et al.
• Court: Washington Supreme Court

229 P. 309

131 Wash. 145

STATE ex rel. CHEALANDER et al. v. MORGAN et al.

No. 18771.

Supreme Court of Washington

October 8, 1924

Writ of review by the State of Washington, on the relation of G Chealander and others, against W. W. Morgan and others, as the Board of County Commissioners of Snohomish County, Wash and others, to review an order sustaining demurrer and dissolving a temporary restraining order. Reversed with directions.

Preston, Thorgrimson & Turner, of Seattle, and B E. Padgett, of Everett, for plaintiffs.

Cooley Horan & Mulvihill and John Richards, all of Everett, for defendants.

TOLMAN J.

This case comes before us on a writ of review granted after notice and hearing. The action was originally brought by the plaintiffs as taxpayers against only the defendants acting as a board of county commissioners, for the purpose of obtaining an injunction restraining the board from awarding a contract for the construction of a purported permanent highway in Snohomish county. At the time the action was commenced, a restraining order was issued until a hearing could be had, and while the restraining order was still in force a demurrer to plaintiffs' complaint was filed and argued, which demurrer was sustained by the trial court, and the temporary restraining order was dissolved. Thereafter by leave of court the plaintiffs filed a supplemental and amended complaint, making parties the additional defendants, and alleging in addition to the matters contained in the original complaint that, after the dissolution of the restraining order, the county commissioners had let a contract for the construction of the road to the additional defendants. A demurrer was afferwards sustained to the supplemental and amended complaint, and a judgment of dismissal followed. The plaintiffs assign as error the sustaining of the demurrers and the consequent dismissal of their action.

Before proceeding to the merits it may be well to say that the defendants now ask that the writ be discharged, for the reason that the plaintiffs have an adequate remedy by appeal from the final judgment rendered by the trial court. That question was argued and necessarily passed upon adversely to the defendants' contention when the writ was issued. It will suffice to say that the ordinary remedy by appeal was by the court deemed insufficient in that, before an appeal could be heard and disposed of in the ordinary course, the contemplated work would have been completed, the money would have been expended, and the plaintiffs, if they prevailed, would have had but a fruitless victory.

The case falls within the rule recognized in State ex rel. Silver Basin Mining Co. v. Superior Court, 110 Wash. 559, 188 P. 384; State ex rel. Bayless v. Superior Court, 116 Wash. 535, 199 P. 977; and State ex rel. Daigneault v. Superior Court, 124 Wash. 90, 213 P. 677, as well as many other earlier cases. That such a writ will issue where the fruits of victory will otherwise be lost pending an appeal is too well settled to call for further comment.

The demurrers raised the questions of the plaintiffs' right to maintain the action, and necessity of the state being joined as a party defendant, and whether or not the facts pleaded were sufficient to warrant relief. The ruling of the trial court seems to have been predicated upon the first two of the questions mentioned.

Both the original and the amended complaints alleged that the plaintiffs are taxpayers of Snohomish county, and that the carrying out of the work will result in the unlawful expenditure of permanent highway funds collected from the taxpayers of Snohomish county, and held in trust in the state treasury, and also of current expense funds raised by general taxation. It seems to be argued that the money in the permanent highway fund, being already collected, its expenditure will cause no additional burden on the taxpayers, and that the amount to be used from the current expense fund will go to pay the salary and expenses of the county engineer while engaged on the work, and that a like amount would be used if the engineer were engaged in other work; hence no additional burden is thus placed on the taxpayers. But we can see no force to such an argument. The money in both funds has been collected from the taxpayers to be properly and lawfully expended for their benefit, and if illegally or improperly expended the taxpayer loses the benefit which he would otherwise have received from his contribution. He may therefore maintain an action to enjoin the improper use of either fund. Shanstrom v. Case, 103 Wash. 672, 175 P. 323, and cases there cited.

It is earnestly contended that the state was a necessary party. The proceedings complained of seem to have been taken under the Permanent Highway Act, c. 35, Session Laws of 1911, Rem. Comp....