Whatcom County v. Langlie

• Decision Date: 24 July 1952
• Docket Number: No. 32177,32177
• Citation: 40 Wn.2d 855,246 P.2d 836
• Court: Washington Supreme Court
• Parties: WHATCOM COUNTY, v. LANGLIE et al.

Page 855

40 Wn.2d 855

246 P.2d 836

WHATCOM COUNTY, v. LANGLIE et al.

No. 32177.

Supreme Court of Washington, Department 2.

July 24, 1952.

Tom A. Durham and Jack Rowles, Bellingham, for relator.

Smith Troy, Olympia, Ellis L. Collins, for respondent.

HILL, Justice.

We have been asked to review, by certiorari, the action of the superior court for Thurston county in refusing to continue a temporary restraining order as an injunction pendente lite.

Whatcom county, a municipal corporation, owns and operates a 100-bed general hospital, hereinafter referred to as the county hospital. ('Whatcom county,' as used in this opinion, refers to the municipal corporation unless the context indicates a different connotation.)

The state department of health is charged by law with the duty of providing necessary medical care and related services (including hospitalization) to recipients of public assistance. Initiative measure No. 178, § 7, Laws of 1951, chapter 1, § 7, cf. RCW 74.08.140 et seq. The department of health has, since that measure became effective, required all recipients of public assistance in Whatcom county who need hospitalization, to go to the county hospital except in emergencies and for certain types of care which, in the opinion of a screening board of physicians, could not be adequately handled at that hospital; the excepted cases are handled at one or the other of the two privately owned general hospitals in Bellingham, where approximately one-half of the population of Whatcom county resides. The state does not pay the county hospital on a patient or case basis, but pays the difference between the cost of operating the hospital and the amount received from private patients. The cost to the state under this arrangement was approximately $19,000 a month in 1951, and its payments constituted about ninety per cent of the gross monthly revenue of the hospital.

Dr. J. A. Kahl, acting director of the department of health, entered into a contract April 8, 1952, on behalf of the department, with the two privately owned general hospitals to which we have referred, whereby, for a lump-sum payment of $2.50 a month for each eligible person ('any person who receives public assistance or his dependents covered in his grant,' as defined in the contract) in Whatcom and San Juan counties, those two hospitals would undertake to provide all hospital services for all eligible persons. This contract was to become effective May 15, 1952.

Whatcom county takes the position that, without the state's public assistance patients and the state's payments for the services rendered to them on the same basis as heretofore, the county would be compelled to close its hospital immediately. As a basis for an action seeking to enjoin the department of health from carrying out the provisions of the contract of April 8, 1952, the county alleged that the contract is in direct violation of Initiative No. 178, Laws of 1951, chapter 1, and made the governor, the acting director of the department of health, and the department itself, defendants.

An ex parte order was issued April 24, 1952, whereby the individual defendants and the department of health were temporarily

'* * * restrained from carrying out any of the terms and provisions of the contract dated April 8, 1952, between said defendants and certain private hospitals in Bellingham, Washington, and the defendants are further restrained from removing patients from Whatcom County Hospital under the terms of that contract or otherwise, and the defendants are further restrained from failing or refusing to make the regular payments to Whatcom County Hospital on the same basis as heretofore for hospitalization of patients under their jurisdiction.'

A hearing was held May 13, 1952, to determine whether the restraining order should be continued in effect as an injunction pendente lite, and on May 28th an order was entered terminating the restraining order entered April 24th and denying the injunction pendente lite.

The chief justice of this court, at the request of Whatcom county, immediately entered an order keeping the restraining order of April 24th in effect pending the further order of this court, and directing the issuance of a writ of certiorari to review the order of the Thurston county superior court of May 28th. Pursuant to the writ, the record in the superior court was certified to this court and the matter was argued June 20, 1952.

We are met at the outset by a motion to quash the writ. The basis for the motion is Rule on Appeal 14, which reads:

'Any party aggrieved may appeal to the supreme court in the mode prescribed in these rules from any and every of the following determinations, and no others, made by the superior court, or the judge thereof, in any action or proceeding:

* * *

* * *

'(3) From an order granting or denying a motion for a temporary injunction, heard upon notice to the adverse party, and from any order vacating or refusing to vacate a temporary injunction: Provided, that no appeal shall be allowed from any order denying a motion for a temporary injunction, or vacating a temporary injunction unless the judge of the superior court shall have found upon the hearing, that the party against whom the injunction was sought was insolvent * * *.' (Italics ours.)

This rule comes from a statute enacted in 1983, Laws of 1983, chapter 61, § 1, as amended by Laws of 1901, chapter 31, § 1, presently carried as RCW 4.88.010, cf. Rem.Rev.Stat. § 1716.

Because, in the absence of a finding of 1893, Laws of 1893, chapter 61, § 1, as from an order such as that we are now asked to review, it is urged that there can be no review by certiorari in the absence of such a finding unless we can say that the superior court should, on the record before it, have made such a finding. Eight cases are cited in support of that proposition, the most recent of which is State ex rel. Seattle Milk Shippers' Ass'n v. Superior Court, 1924, 130 Wash. 668, 228 P. 847.

The rule refers specifically to appeals, but we have applied it and will apply it to reviews by certiorari where there exists a reason for it, but under the circumstances of this case a reason for application of the rule does not exist. Whether the individual defendants against whom the injunction is sought are insolvent or rich as Croesus is immaterial unless they are liable to Whatcom county for damages. The law is that, in the absence of corrupt or malicious motives, public officers such as the individual defendants are not liable personally for errors or mistakes of judgment (and this includes the misconstruction of a statute) in the performance of duties involving the exercise of judgment and discretion. Tacoma v. Peterson, 1931, 165 Wash. 461, 5 P.2d 1022; Dunbar v. Fant, 1933, 170 S.C. 414, 170 S.E. 460, 90 A.L.R. 1412; Wright v. White, 166 Or. 136, 110 P.2d 948, 135 A.L.R. 1; Williams v. Weaver, 1880, 100 U.S. 547, 25 L.Ed. 708; Tyler v. Cass County, 1892, 142 U.S. 288, 35 L.Ed. 1016, 12 S.Ct. 225; Cooper v. O'Connor, 1938, 69 App.D.C. 100, 99 F.2d 135, 118 A.L.R. 1440. The conduct of the individual defendants of which Whatcom county complains is not in the performance of a ministerial act but is in the performance of a duty which involves the exercise of judgment and discretion, and there is neither allegation nor proof of malice or corruption.

Furthermore, if the county has a cause of action and the state has no right to withdraw its patients and its financial assistance from the county hospital and, in consequence of such a withdrawal, the hospital should be closed and its staff leave the community or obtain other employment, the damages to the county would be impossible to prove from a compensatory standpoint. As a matter of fact, operated on the present basis the hospital costs the county nothing, according to its allegations and proof, because private patients pay ten per cent and the state pays ninety per cent of the cost of operation. The county says that it will close the hospital immediately if the state ceases its payments, and there will therefore continue to be no cost of operation borne by the county. The closing of the hospital could mean a very real loss to Whatcom county as a community, but no resulting financial loss to the county as a municipal corporation is suggested by the record.

It appears to us that there would be no compensatory damage and that, even if there were, there would be no liability for damages, on the present state of the record, on the part of the individual defendants against whom the injunction is sought. We are, therefore, in no way concerned with the question of the solvency or insolvency of the individual defendants.

We will not relegate litigants to the right of appeal when it appears that such appeal would be barren of results no matter how it eventuated, nor will we apply one of our rules on appeal to a hearing on certiorari when the reason for its application does not exist. State ex rel. Smith v. Superior Court, 1901, 26 Wash. 278, 66 P. 385; State ex rel. Bayless v. Superior Court, 1921, 116 Wash. 535, 199 P. 977. The motion to quash the writ of certiorari is denied.

We pass, then, to a consideration on the merits of the issue of whether the restraining order of April 24th should have been continued as an injunction pendente lite. A few preliminary observations may not be amiss.

Whatcom county has undertaken to to do. RCW 36.62.010, cf. Rem.Supp.1947, to do. RCW36.62.010, cf. Rem.Supp.1947, § 6090-1. It is but a statement of self-evident fact to say that the state of Washington, in the absence of a statute requiring it, is under no obligation to utilize that hospital or to provide funds for its operation. That the state has done so in the past under the arrangement heretofore referred to does not, in the absence of some statutory requirement, obligate the state to continue its support in the future on the same basis or at all. Nor are the facts, so...