State v. Superior Court for King County

CourtUnited States State Supreme Court of Washington
Citation267 P. 770,148 Wash. 1
Docket Number21107.
Decision Date29 May 1928

Application by the State, on the relation of the Foster-Wyman Lumber Company and others, against the Superior Court of the State of Washington for King County, Walter B. Beals, one of the Judges thereof, and another, for writ of prohibition to prevent the Superior Court of King County from holding certain witnesses in contempt of court. Petition denied.

John H Dunbar and H. C. Brodie, both of Olympia, Miller & Freese, of Ritzville, W. V. Tanner, and J. H. Powell, both of Seattle Chas. W. Greenough and Frank Funkhouser, both of Spokane, and Hadley & Abbott, of Bellingham, Bullitt & Kahin, Bogle, Bogle & Gates, and Orlo B. Kellogg, all of Seattle, for respondents.


This is an application for a writ of prohibition to prevent the superior court of King county from holding certain witnesses in contempt of court for refusal of give their depositions in an action brought by assignees of the McCormack Lumber Company against the Foster-Wyman Lumber Company, a corporation. One of the witnesses, Foster, was a defendant in the action, and the other, Wyman, was a stockholder and officer of the defendant corporation.

The testimony was sought under authority of rule 8, § 5, adopted by this court January 14, 1927, which reads as follows:

'1. The testimony of a witness may be taken by deposition, to be read in evidence in an action, suit or proceeding commenced and pending in any court in this state, in the following cases: * * *
'5. When the witness is (a) a party to the action or (b) an officer, agent, partner, stockholder or employee of a party or * * *.'

Both witnesses coming under the designation in section 5, the court announced its intention of holding the witnesses in contempt if they persisted in refusal to testify, but deferred the question of contempt to allow the relators to present to this court arguments on the constitutionality of the rule involved.

The rule in question was passed by this court pursuant to an act of the Legislature of 1925, which expressly gave that power to the court. The act is as follows:

'An act to promote the speedy determination of litigation on the merits and authorizing the Supreme Court to make rules relating to pleading, procedure and practice in the courts of this state. * * *
'Section 1. The Supreme Court shall have the power to prescribe, from time to time, the forms of writs and all other process, the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the Supreme Court, superior courts and justices of the peace of the state of Washington. In prescribing such rules the Supreme Court shall have regard to the simplification of the system of pleading, practice and procedure in said courts to promote the speedy determination of litigation on the merits.
'Sec. 2. When and as the rules of courts herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect.
'Sec. 3. This act shall not be construed to deprive the superior courts of power to establish rules for their government supplementary to and not in conflict with the rules prescribed by the Supreme Court.' Laws of 1925, c. 118, p. 187.

Since the application in this court for the writ may briefs have been filed amici curiae on both sides of the question, and they, with the briefs filed by the immediate parties to the controversy, have caused the arguments to take a wide range. We think, however, that the attack upon the constitutionality of the rule may safely be divided into three parts, each involving what appears to be one of the important points raised.

The first question that deserves consideration is the claim that the act of 1925 is a delegation of legislative power, for, if this point be well taken, it is decisive of the controversy. In its essential matters the argument upon this point is that from the beginning of statehood it has always been the recognized policy of the state that the Legislature should prescribe procedure and practice in the courts, leaving only to them the right to make rules involving decorum and orderly government. While it is true that the Legislature has functioned in such a capacity ever since statehood, that fact becomes not at all controlling in determining whether the making of such laws for procedure and practice is in itself an exclusive legislative function. Indeed, there is excellent authority from an historical as well as legal standpoint that the making of rules governing procedure and practice in courts is not at all legislative, but purely a judicial, function. In 1792 the Attorney General of the United States requested information from the United States Supreme Court concerning the rules and regulations of the court. The Chief Justice, speaking for that tribunal, said that the court considered 'the practice of the courts of King's Bench and Chancery in England, as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein, as circumstances may render necessary.' Hayburn's Case, 2 Dall. 411, 1 L.Ed. 437. At the time of the pronouncement of the court the procedure in England was controlled by rules enunciated by the courts. However interesting this question may be when viewed from the point of legislative usurpation of judicial powers, it will be unprofitable to further delve into the argument in this opinion, since there confronts us always the debatable question of whether long acquiescence by the courts of the state in legislative control of these matters is not sufficient to require a holding that the legislative body, if it so desires, can continue that supervision.

The point here in controversy can be decided upon a far more stable foundation. Assuming the right of the Legislature to make rules for the court, and acknowledging its continued action in that respect, it does not follow that such action is a legislative function. Not all acts performed by a Legislature are strictly legislative in character. A failure to recognize this distinction often gives rise to the belief that one of our lawmaking bodies has abdicated its duty, and attempted to transfer its legislative mantle to the shoulders of another body, not legislative, thereby subverting the purpose of its creation and denying the people of the commonwealth the right to have the laws which govern them enacted by their duly chosen representatives. This distinction was ably pointed out by the United States Supreme Court as early as Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253, where the court had occasion to construe its powers to make rules governing execution under the seventeenth section of the Judiciary Act of 1789 (1 Stat. 83), which provided in part that:

'All the said courts * * * shall have power * * * to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States.'

Chief Justice Marshall, referring to the point, said:

'It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which the Legislature may rightfully exercise itself. Without going further for examples, we will take that the legality of which the counsel for the defendants admit. The seventeenth section of the Judiciary Act, and the seventh section of the additional act, empower the courts respectively to regulate their practice. It certainly will not be contended that this might not be done by Congress. The courts, for example, may make rules directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended that these things might not be done by the Legislature, without the intervention of the courts; yet it is not alleged that the power may not be conferred on the judicial department.
'The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the Legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.'

Again, in Bank of United States v. Halstead, 10 Wheat. 51, 6 L.Ed. 264, a similar question arose. Said the court:

'It is said, however, that this is the true exercise of legislative power, which could not be delegated by Congress to the courts of justice. But this objection cannot be sustained. There is no doubt that Congress might have legislated more specifically on the subject, and declared what property should be subject to executions from the courts of the United States. But it does not follow, that because Congress might have done this, they necessarily must do it, and cannot commit the power to the courts of justice. Congress might regulate the whole practice of the courts, if it was deemed expedient so to do; but this power is vested in the courts; and it never has occurred to any one, that it was a delegation of legislative power.'

It should also be borne in mind that the Legislature is not required to legislate in complete detail upon every subject...

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