Winsor v. Bridges

• Citation: 24 Wash. 540,64 P. 780
• Court: Washington Supreme Court
• Decision Date: 10 April 1901
• Parties: WINSOR et al. v. BRIDGES, Com'r, et al.

64 P. 780

24 Wash. 540

WINSOR et al. v. BRIDGES, Com'r, et al.

Supreme Court of Washington

April 10, 1901

Application for writ of prohibition by Richard Winsor and others, as the board of regents of the University of Washington, against Robert Bridges, as commissioner of public lands, and others. Writ denied.

Clise & King, for plaintiffs.

Thos M. Vance and Byron Millett, for defendants.

WHITE J.

This is an original proceeding begun in this court by the board of regents of the University of Washington against the board of state land commissioners of the state of Washington. It is an application for a writ of prohibition, commanding the board of state land commissioners to desist and refrain from selling, or attempting to sell, or from leasing, or attempting to lease, a tract of land in the city of Seattle conveyed by Arthur A. Denny and others to the territory of Washington as a site for the University of Washington, and subsequently conveyed by quitclaim deed to the state of Washington, to be sold for the best interest of the state university. The affidavit sets forth that the board of regents of the state university are in possession of said land, and are using part of it for university purposes; that they have deemed it their duty to lease a portion of the land not occupied for university purposes, and for that purpose have called for bids, and have accepted bids; and they are about to lease such portion on terms which are set out in the affidavit. The affidavit further sets out that the board of state land commissioners thereaten to sell the land or lease the same at public auction for a term of five years or less under the laws relating to the leasing and sale of school and granted lands of the state, and it is set forth in the affidavit that the board of state land commissioners have no authority under the law to do the acts they threaten to do, and, further, that the sole authority to sell or lease said land is vested in the board of regents of the University of Washington. Section 4, art. 4, of the state constitution, defining the jurisdiction of this court provides that 'the supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings, excepting,' etc. 'The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. * * *' Under this provision of the constitution, the authority of this court to issue the writ of prohibition, except where it is necessary to the complete exercise of its appellate and revisory jurisdiction, may well be doubted, and, but for a different rule announced in State v. Superior Court of Spokane Co., 15 Wash. St. 668, 47 P. 31 State v. Board of State Land Com'rs (Wash.)

63 P. 532, we followed, as to the question of original jurisdiction, the rule laid down in State v. Superior Court of Spokane Co., supra. In State v Board of State Land Com'rs, supra, we held that the writ of prohibition meant by section 4, art. 4, of the constitution, was practically the common-law writ, and its purpose was to restrain the exercise of unauthorized judicial or quasi judicial power, and that it might be invoked against any court, or body of persons, board, or officers, assuming to exercise such power; that, to warrant granting the writ to any organized body other than a court, it is necessary that the acts sought to be prohibited be purely judicial, and not executive, administrative, or legislative. We are satisfied that the views that expressed are correct. The legislature, in 1895, in providing for special proceedings, enacted that 'the writ of mandamus may be denominated a writ of mandate.' Section 5754, 2 Ballinger's Ann. Codes & St. 'It may be issued by any court, except a justice's or a police court, to any inferior tribunal, corporation board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.' Section 5755, Id. 'The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.' Section 5769, Id. This statutory writ of prohibition is broader in its purposes than the writ of prohibition at common law, and by it the proceedings of any tribunal, corporation, board, or person, whether they are acting in a judicial, legislative, executive, or administrative capacity, may be arrested, if acting in excess of their power. Williams v. Lewis (Idaho) 54 P. 619. When the constitution was framed the Code of Washington Territory (sections 698, 699) read: 'The writ of prohibition shall command the court or party to whom it shall be directed, to refrain from any further proceedings in the matter therein specified, until the return of the writ and the further order of the court thereon, and upon the return, to show cause why they shall not be absolutely restrained from further proceeding in the matter.' 'The court shall render judgment either that a prohibition absolute, restraining the court and party proceeding in the matter, do issue, or authorizing the court and party to proceed in the matter in question.' From the context the words 'court or party,' in section 698, should read 'court and party,' which substantially defines the writ as it existed at common law. When the constitution of Idaho was adopted, a law verbatim with section 5769, 2 Ballinger's Ann. Codes & St., supra, was in force in that territory, and had been in force for 15 years. The supreme court of that state say: 'By section 1851, Rev. St. U.S., the legislative power of the territories was declared to extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States. The defining of the functions of the writ of prohibition was a rightful subject of legislation. The original jurisdiction of the supreme court of the state is defined in section 9 of article 5 of the constitution in almost the exact words of section 3816, Rev. St. Idaho. The men who formulated the constitution were familiar with the provisions of the statute. The supreme court of California ( Camron v. Kenfield, 57 Cal. 550) say: 'The new constitution was framed in view of the construction of the language used in the former constitution, unanimously concurred in by the members of the highest tribunal of the state, yet the framers of the present constitution repeated the words employed in the former. We are forced to the conclusion that they used these words in the sense which had been attributed to them by the supreme court.' We may conclude with equal confidence that the framers of the constitution of Idaho, in defining the functions of the writ of prohibition, did so with a full knowledge of the character and functions of the writ, as the same were defined in the statutes of Idaho then existing, and which had been in force in the territory of Idaho for 15 years at least prior to the adoption of the constitution. While it is true there had been no consideration of the question by the supreme court of the territory, we think it may reasonably be presumed that the members of the constitutional convention were as well advised as to the general legislation of the territory as they were to the decisions of its supreme court. The constitution expressly continues in force all laws of the territory which are not repugnant to the constitution. It will hardly be contended, we apprehend, that the provisions of sections 4994 and 4995 are repugnant to the constitution. As the law defining the functions of the writ of prohibition preceded the constitution by some 15 years, and such law was continued in force by express provision of the constitution, we are, as expressed by the supreme court of California, 'forced to the conclusion' that, in providing for the issuance of the writ of prohibition in section 9 of article 5 of the...