State v. Superior Court for Thurston County
| Decision Date | 16 August 1915 |
| Docket Number | 12930. |
| Citation | 151 P. 108,86 Wash. 685 |
| Parties | STATE ex rel. PIERCE COUNTY et al. v. SUPERIOR COURT FOR THURSTON COUNTY et al. |
| Court | Washington Supreme Court |
Department 2. Original prohibition by the State of Washington, on relation of Pierce County and J. W. Slayden and others constituting the Board of County Commissioners of Pierce County, and Washington Paving Company, against the Superior Court of the State of Washington for Thurston County and Hon John R. Mitchell, Judge of said court. Alternative writ made peremptory.
Fred G. Remann, Harry E. Phelps, and Hayden Langhorne & Metzger, all of Tacoma (Wm. Pratt, of Tacoma, of counsel), for relators.
J. T S. Lyle and John A. Shackleford, both of Tacoma, for respondents.
On March 26, 1915, pursuant to the statutes relating to the construction of permanent highways, the board of county commissioners of Pierce county passed a resolution for the improvement of a highway in that county to be thereafter known as 'Permanent highway No. 6, Pierce county.' After certain perliminary proceedings, not necessary here to recite, the board issued a call for bids for the construction of the improvement; the work to consist of clearing, grubbing, and grading the land along the route selected for the highway, and the laying thereon of some 1 of 12 different forms of pavement described in the call. Bids were received at the time appointed, and after consideration the board accepted as the lowest and best bid for the work the bid of the Washington Paving Company. Prior, however, to the actual letting of the contract, an action was begun by a taxpayer of Pierce county against the county, its commissioners, and the paving company, seeking to enjoin the letting of the contract. A temporary injunction was sought to restrain the parties from acting during the action, which the trial court refused to grant; the order of refusal being dated May 24, 1915. Immediately thereafter the contract was entered into, and the work of construction begun. Later the action was dismissed without prejudice.
On June 19, 1915, one W. P. Reynolds, a resident and taxpayer of the county of Pierce, began an action in the superior court of Thurston county, making parties defendant thereto Pierce county, its commissioners, the Washington Paving Company, C. W. Clausen, as State Auditor, and W. R. Roy, as State Highway Commissioner, praying that the contract entered into between the county and the paving company be adjudged null and void; that further work on the highway pursuant thereto be permanently enjoined; and that the county commissioners of Pierce county and the State Highway Commissioner be enjoined from certifying for payment to the State Auditor any sum of money as earned under the contract; and that the State Auditor be enjoined from issuing warrants on the State Treasurer for the payment of any of such sums, if so certified for payment. The action was founded on the allegation that the contract between the board of county commissioners and the paving company was the result of fraud and collusion practiced by and between certain of the members of the board and the paving company, whereby other persons and firms desiring to bid on the work were denied the privilege of bidding on equal terms with the Washington Paving Company, thereby preventing competitive bidding for the work except in form only. On filing the complaint a temporary injunction pending the final disposition of the action was applied for by the plaintiff, notice of which was given the defendants. Prior to the hearing on the application, the defendants Pierce county, its county commissioners, and the Washington Paving Company appeared specially and moved for a dismissal of the action on the ground that the court was without jurisdiction either of the subjectmatter of the action or the persons of the defendants. The motions were overruled, whereupon they demurred on the same ground, and upon the additional ground that the plaintiff was without power to maintain the action. The demurrer was likewise overruled, and thereafter a hearing was had on ruled, and thereafter a hearing was had on the application for a temporary injunction, which resulted in an order of the court granting the same.
This is an application for a writ of prohibition, its board of county commissioners, and the Washington Paving Company, defendants in the action last mentioned, against the superior court of Thurston county, and John R. Mitchell, as judge thereof, seeking to prohibit the court and judge named from proceeding further in that action. The application is founded on the contention that the court is proceeding without and in excess of its jurisdiction, and is thus subject to restraint in this form of proceeding. The relators have suggested a number of reasons why the lower court was without jurisdiction to entertain the suit of the plaintiff below, but there is one preliminary to all the others that has seemed to us to be controlling, and this alone we shall notice.
It is well settled that an action cannot be maintained against the state without its consent, and that the state, when it does so consent, can fix the place in which it may be sued, limit the causes for which the suit may be brought, and define the class of persons by whom it can be maintained. In other words, the state being sovereign, its power to control and regulate the right of suit against it is plenary; it may grant the right or refuse it as it chooses, and when it grants it may annex such condition thereto as it deems wise, and no person has power to question or gainsay the conditions annexed. This state has by its Constitution (article 2, § 26) empowered the Legislature to direct by law in what manner and in what courts suits may be brought against it, and the Legislature has provided that all such suits shall be brought in the superior court of Thurston county. Rem. & Bal. Code, § 886.
The suit in question, while in form a suit against certain of its executive officers in their representative capacities, is in essence and effect a suit against the state. The suit is instituted to restrain these officers, the one from certifying that certain sums payable out of the state treasury have been earned in the performance of a contract in which the state has an interest, and the other from drawing warrants on the state treasury for the payment of such certificates, if any are so presented to him. The funds involved are the funds of the state. The officers sought to be enjoined have no interest in the funds. They are merely the agents...
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