State v. Superior Court of Pierce County

• Decision Date: 22 November 1918
• Docket Number: 15045.
• Citation: 104 Wash. 268,176 P. 352
• Parties: STATE ex rel. KING COUNTY v. SUPERIOR COURT OF PIERCE COUNTY et al.
• Court: Washington Supreme Court

176 P. 352

104 Wash. 268

STATE ex rel. KING COUNTY v. SUPERIOR COURT OF PIERCE COUNTY et al.

No. 15045.

Supreme Court of Washington

November 22, 1918

Department 1.

Application for writ of prohibition by the State of Washington, on the relation of King County, against the Superior Court of Pierce County, Wash., and another. Writ denied.

Alfred H. Lundin and Frank P. Helsell, both of Seattle, for appellant.

Davis &amp Neal, of Tacoma, for respondents.

CHADWICK, J.

Pursuant to chapter 54, Laws 1913, the counties of King and Pierce undertook the improvement of the White, Stuck, and Puyallup rivers by straightening, widening, and deepening the banks and channels to the end that recurrent damage by winter floods might be avoided in the future. The Tacoma Meat Company, of which Henry Conger is receiver, is the owner of certain lands abutting the Puyallup river in Pierce county.

The receiver brought an action in Pierce county against the counties of Pierce and King to recover damages alleged to have been suffered by the wrongful, careless, and negligent deflection of the stream against the banks and shores bounding the property of the meat company.

The matter coming on to be heard upon a motion for a change of venue, the trial judge overruled the motion, whereupon counsel appearing in behalf of King county came to this court challenging the jurisdiction of the superior court and asking that a writ of prohibition issue restraining further proceedings. We granted an order to show cause why a writ should not issue, which being met by demurrer and answer raises the one and controlling question, i. e., can a municipal corporation be sued in any court other than a court situate within its own boundaries?

Petitioner argues, and upon well-established authority too, that it being the rule at common law that a county could be sued only in an interterritorial court, and there being no statute which in its terms either negative or abolishes the common-law rule, it follows that the court below is threatening to exceed its jurisdiction by holding King county to answer in the superior court for Pierce county. Counsel cite: North Yakima v. Superior Court, 4 Wash. 655 30 P. 1053; Piercy v. Johnson City, 130 Tenn. 231, 169 S.W. 765, L. R. A. 1915F, 1029; Heckscher v. Philadelphia (Pa.) 9 Atl. 281, 6 Sad 346; Parks Co. City of Decatur, Ill., 138 F. 550, 70 C. C. A 674; Cullman County v. Blount County, 160 Ala. 319, 49 So. 315, 18 Ann. Cas. 322; Phillips v. Mayor of Baltimore, 110 Md. 431, 72 A. 902, 25 L. R. A. (N. S.) 711; Shaver, Commissioner, v. Lawrence County et al., 44 Ark. 225; Lehigh County v. Kleckner, 5 Watts & S. (Pa.) 181. City Nat. Bank of Austin v. Presidio County (Tex. Civ. App.) 26 S.W. 775. Counsel appeal strongly to the public policy which is made the groundstone of the common-law rule; that is, that, the duties of municipal officers being essentially local, they should not be put to the compulsion of attending upon trials distant from the seat of the government which they are under obligation to administer. It will be observed by those who have cause, or sufficient interest, to read the authorities cited, that they naturally fall within two classes: (a) There was no stature fixing the venue of civil actions, or (b) the action was for an injury to person, or personal property, and consequently personal--a situation analogous to our statutory provision permitting a defendant to compel the trial of a cause otherwise transitory in the county of his residence.

We feel called upon, therefore, to make reference only to North Yakima v. Superior Court, and this not without some embarrassment. The writer of the opinion, which was concurred in by two members of the court, two concurring in the result, after holding under the statute that the action had been brought in the wrong county, proceeds to discuss generally the common-law rule of venue in actions against municipal corporations, and probably holds in line with the cases cited in the opinion, namely, that municipal corporations 'could only be sued outside of the county wherein they were situated by express legislative provision,' or, as he puts it, in other words:

'The general provisions authorizing such corporations to be sued do not change the rule which is found to exist at common law that the suits thus authorized to be brought must be waged in the county in which the corporations were situated.'

It has been disputed whether an action could be maintained against a municipal corporation at common law for its torts, but, however that may be, this action is maintained under a positive statute granting a right to maintain actions against municipal corporations.

'An action may be maintained against a county, or other of the public corporations mentioned or described in the preceding section, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation.' Rem. Code, § 951.

The legal effect of this section has been declared to be:

'Not only is provision made for an action against the county upon contract within the scope of its authority, but an injury to the right of the plaintiff arising from some act or omission of the county.' Kirtley v. Spokane County, 20 Wash. 111, 54 P. 936.

Contrary to the inferences drawn by the majority of the court in the Yakima Case, it seems to us that the effect of this statute is, not merely to give a right of action where none existed before, but to make municipal corporations subject to suit as an ordinary party litigant and as such answerable under the general rules governing procedure in the superior courts.

It is a rule of construction that statutes providing remedies against either public or private wrongs are to be liberally construed. 36 Cyc. 1173.

'If a new right is created by statute and it is silent as to the mode of its enforcement, or as to the form of redress in case of invasion, then the proprietor of that right may resor to the common law or the existing general statutory procedure for remedial process.' Lewis' Sutherland, Statutory Construction, vol. 2, § 572, citing many cases.

'If Harris had possessed a right, at the common law, to the exclusive enjoyment of this ferry, then, the statute giving a remedy in the affirmative, without a negative expressed or implied, for a matter authorized by the common law, the might, notwithstanding the statute, have his remedy by action at the common law. 1 Com. Dig. Action on Statute. But Harris had no exclusive right at the common law, nor any right, but what he derived from the statute. Consequently, he can have no right, since the statute, but those it gives; and his remedy therefore, must be under the statute.' Almy v. Harris, 5 Johns. (N. Y.) 175.

In some of the cases cited by the text-writer, the courts gave remedy according to the common law. But in each instance, save one there was no Code of Procedure, and the courts sat in what, for the want of a better term, we call common-law states. But with us we have no common-law rules of procedure. Common-law rights, like statutory rights, are enforced under the Code of Procedure, and not under the forms of the...