State v. Seattle Gas & Elec. Co.
| Citation | 28 Wash. 488,68 P. 946 |
| Parties | STATE ex rel. WINSTON, Atty. Gen., v. SEATTLE GAS & ELECTRIC CO. |
| Decision Date | 02 May 1902 |
| Court | United States State Supreme Court of Washington |
Appeal from superior court, King county; W. R. Bell, Judge.
Quo warranto by the state, on the relation of the attorney general, against the Seattle Gas & Electric Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.
W. B Stratton, C. C. Dalton, E. W. Ross, James H. Lewis, and Victor E. Palmer, for appellant.
Burke Shepard & McGilvra, E. C. Hughes, and Will H. Thompson, for respondent.
The proceedings in this action are on information in the nature of quo warranto, instituted December 17, 1900, in the superior court of the state of Washington for King county, by Patrick H. Winston, as attorney general of the state, who sues, for the state and in its behalf, on his own motion, the defendant, who is alleged to be a corporation organized and existing under the laws of the state of Washington. The information alleges that for two years last past and upwards at the city of Seattle, the said defendant has used, and still uses, without any warrant, grant, or charter liberties, privileges, and franchises as follows: That of having and exercising the right to open and use the streets, lanes alleys, commons, and public places of the city of Seattle for the introduction of gas pipes and other apparatus for gas, for the purpose of conveying illuminating and fuel gas to the said city and the inhabitants thereof; that said liberties, privileges, and franchises the defendant claims to have and use in perpetuity, and has during all the time aforesaid usurped, and still does usurp, upon the state of Washington, to its great damage and prejudice. The prayer is for judgment of the court in the premises and due process of law against the defendant to answer the state of Washington by what warrant it claims to have used and enjoyed the liberties, privileges, and franchises aforesaid, and failing therein, that the defendant be forever enjoined from usurping the same to the injury of the state, or at all. The answer is voluminous. In it the respondent claimed the right to do the things complained of under authority and grants from the city of Seattle, and the ordinances, grants, etc., under which this right is claimed are set forth and referred to. The sixteenth paragraph of the answer was as follows: 'THIS DEFENDANT, FURTHER ANSWERING SAID InfoRmation, alleges and charges that the matters therein set forth and complained of are not, nor is any one of said matters, the concern of the state of Washington, nor is said state or its attorney general in any wise interested in said matters, or any thereof, and that all said matters, and the subject-matter of said information, are matters in difference only between said city of Seattle and this defendant, and in which said city of Seattle solely is concerned or interested adversely to this defendant.' A reply to this answer was filed by the attorney general, substantially denying the rights claimed by the respondent and replying to the sixteenth paragraph as follows: 'And, replying to paragraph 16 of the said answer hereinabove referred to, complainant demurs thereto for the reason that the allegations therein contained are conclusions of law, not supported by facts therin pleaded sufficient to constitute a defense.' A supplemental answer was also filed, setting up a certain decree in the circuit court of the United States as res judicata. A demurrer to the supplemental answer was overruled. An agreed statement of facts was filed, and on this statement the court entered judgment. No formal demurrer was filed to the information. There are no findings of fact or conclusions of law by the court, further than the judgment, which is upon the merits and not that the action abate.
The sixteenth paragraph of the answer, while no doubt entered for a plea in the nature of a plea in abatement, is in effect a demurrer to the information on the ground that it does not state facts sufficient to constitute a cause of action; and, while there was no formal ruling in the court below on this matter either as a plea or demurrer, it is urged before us by the respondent: (1) That an information in the nature of quo warranto does not lie under section 5780, Ballinger's Ann. Codes & St., to try the validity of a municipal franchise such as the respondent is alleged to be usurping; (2) that this action cannot be prosecuted on relation of the attorney general; (3) that, if it can be prosecuted on information, the city of Seattle must cause the suit to be instituted, as it is the party solely concerned or interested adversely to the respondent. Our Code provides: 'If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of the proceedings, either in the superior or supreme court.' Ballinger's Ann. Codes & St. § 4911. Under this section, we think the respondent has the right to urge the objections mentioned.
The statutory proceeding in this state by information in the nature of quo warranto is a substitute both for the common-law writ and for the proceeding by information in civil causes engrafted upon it by acts of parliament. Mills v. State, 2 Wash. St. 566, 27 P. 560.
The statute provides in what cases informations may be filed. Section 5780, Ballinger's Ann. Codes & St. Of the five classes mentioned in this section, those specified in subdivisions 2, 3, and 4 manifestly do not include the case at bar. The language of subdivisions 1 and 5 is as follows: This is a remedial statute, and it must be liberally construed. 'The rule in construing remedial statutes, though it may be in derogation of the common law, is that everything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be put upon it.' Railroad Co. v. Dunn, 52 Ill. 260, 4 Am. Rep. 606. The word 'person,' as used in subdivision 1 of the section, under this rule, we think, must be construed to include a corporation; and the words 'public franchise,' as there used, must be construed to include the rights and privileges which the information charges are being usurped by the respondent. Where it is insisted that the sovereignty of the state in the use of a public franchise is being invaded, it is essential, before passing upon the rights claimed by respondent in its answer, to determine whether the state will be bound by the judgment. If the action is waged, not under the authority of the officers of the state charged by the constitution and statutes of the state with the duty of instituting the action, then the action cannot be said to be binding upon the state, no matter if the decision is adverse to the claims of the state or supports the contention of the one instituting the suit. No suit should be tolerated that is not determinative of the question raised by the pleadings. The history of this class of litigation shows that the remedy sought has been abused, and used for the gratification of personal malice or other improper ends. Mills v. State, supra. The case at bar is prosecuted by both the attorney general and private counsel. While the action is in the name of the state, on the relation of the attorney general, it is apparent that private, and not public, interest has had something to do with setting the machinery of the court in motion. The inquiry, then, becomes important, in view of this fact, as to the power of the attorney general to institute this action. We must also take into consideration that the city of Seattle has control over its own streets, alleys, and public places, and can by the exercise of its police power prevent the alleged unauthorized use of its streets. If that be ineffective, the city can by suit enjoin the private corporation from assuming to exercise the disputed franchise. The remedy by quo warranto is an extraordinary one, which the law does not offer with a liberal hand for the redress of private or local grievances.
The next inquiry, therefore, is, has the information been filed by the person qualified by law to act as relator? If not, the court is not clothed with power to pronounce judgment thereon, any more than it would have a right to pronounce judgment in a criminal action upon an information filed by a private attorney, when the law required the same to be filed by the prosecuting attorney. State v. Heaton, 21 Wash. 59, 56 P. 843. In the case just cited we held: And we quoted with approval Judge Cooley, in People v. Bemis, 51 Mich 422, 16 N.W. 794, where he said: 'We have held that the office of prosecuting attorney was quasi judicial, and that he and any one associated with him must be exclusively the representative of public justice, and stand indifferent as between the accused party and any private interest.' Section 5781, Ballinger's Ann. Codes & St., immediately following the section defining the cases in which an information in the nature of...
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