State v. Superior Court of Jefferson County

• Decision Date: 19 January 1899
• Citation: 20 Wash. 502,55 P. 933
• Court: Washington Supreme Court
• Parties: STATE ex rel. TOWNSEND GAS & ELECTRIC LIGHT CO. v. SUPERIOR COURT OF JEFERSON COUNTY et al.

55 P. 933

20 Wash. 502

STATE ex rel. TOWNSEND GAS & ELECTRIC LIGHT CO. v. SUPERIOR COURT OF JEFERSON COUNTY et al.

Supreme Court of Washington

January 19, 1899

Application for a writ of mandamus by the state, at the relation of the Townsend Gas & Electric Light Company, against the superior court of Jefferson county and Hon. James G. McClinton, judge. Denied.

Harry Ballinger, for plaintiff.

A. W Buddress, for defendants.

DUNBAR J.

This is a proceeding in mandamus to compel the superior court to take jurisdiction of a contempt proceeding to enforce a judgment of that court wherein the relator was plaintiff and one D. H Hill, as mayor, and one August Dudenhauser, as clerk respectively, of the city of Port Townsend, were defendants. The court below in that proceeding directed that a writ of mandate issue to compel the defendants to issue and deliver to plaintiff current expense fund warrants of said city to pay a judgment against said city theretofore rendered and a claim allowed by the city council of said city, it not being specified in the judgment what fund the claim should be paid from. A peremptory writ having issued, and defendants having refused to obey it, relator, as plaintiff, commenced a proceeding against them for contempt in the above-entitled court. The court refused to entertain such proceedings on the ground that the defendnats had appealed, and the court had no jurisdiction to enforce the judgment. The defendants served and filed a notice of appeal, but gave no bond or security on appeal, and no bond to stay proceedings. Two questions are discussed by the relator, namely: (1) Is an appeal bond necessary to effectuate such appeal? And (2) does such appeal stay proceedings without a bond therefor, supposing the appeal had been perfected by the notice?

In the oral discussion of the case it was urged by the defendants in addition to the discussion of the questions above mentioned, that the writ of mandate should not issue in this case, for the reason that there was an adequate remedy by appeal. In reply to this proposition it is insisted by the relator that this question has been settled adversely to the defendants' contention by many decisions of this court, and that the extraordinary remedies, both of prohibition and mandamus, have been allowed when it appeared that the court either refused to take jurisdiction of a case which it should have taken, or when the court was acting in excess of its jurisdiction. It must be confessed that there has been a lack of uniformity in the decisions of this court on this question. In the earlier cases, notably Board of Harbor Line Com'rs v. State, 2 Wash. St. 530, 27 P. 550, a writ of prohibition was refused because another remedy was available. Judge Hoyt, who wrote the opinion of the court in that case, said: 'The extraordinary writ of prohibition should only be granted in a clear case, and when no other remedy is available; and I am of the opinion that petitioner has no cause of complaint; and, if he has, I am not satisfied that the ordinary proceedings in law or equity will not ultimately completely protect his rights.' In State v. Jones, 2 Wash. St. 662, 27 P. 452, in an opinion written by Chief Justice Anders, it was held that 'the writ of prohibition would not lie to restrain courts having original jurisdiction of cases in equity from issuing injunctions in excess of their jurisdiction, when there is a complete remedy by appeal from any final judgment that might be rendered by said courts in such cases.' Since that time, however, many cases have been decided where the writ of prohibition issued where the court was proceeding to act without jurisdiction, and a writ of mandate has issued where the court refused to take jurisdiction which rightfully belonged to it, without regard to whether an adequate remedy existed by appeal or otherwise. We have become satisfied, however, that this practice is not in consonance with the best authority, and is not conducive to a careful and close investigation of causes by this court. When causes are regularly appealed, they are presented to this court by briefs, which, as a rule, are carefully prepared by the attorneys in the cases, and the court has an opportunity to examine them with more deliberation than when submitted, as they are under the practice which has lately been tolerated, by typewritten briefs, which cannot be preserved in the records of the court. Hence hurried decisions are necessarily made, leading sometimes to embarrassing results. We think that the better authority, as well as the better practice, precludes the issuance of these writs when the law furnishes an adequate remedy. In the last case above referred to, viz. State v. Jones, this court quoted from section 770, High, Extr. Rem.,...