State Ex Rel. Northwestern Electric Co v. Superior Court

Millard, J. November 2, 1946, on application of relators, who gave no notice to respondent or to the public utility district of presentation of their application for the writ, the chief justice of this court entered an order directing issuance of writ of certiorari to review a decree of public use and necessity entered October 5, 1946, by the superior court for Clark county, in eminent domain proceedings conducted by public utility district No. 1 for the acquisition of certain electrical properties of relators. Respondent appeared and moved that the writ of certiorari be quashed, for the reason that the writ issued is peremptory rather than alternative in form, hence may not be issued without notice to the adverse parties under Rule 30, Rules of Supreme Court, 18 Wn. (2d) 27-a, which provides that: “When made without notice, except as to writs which issue as a matter of right, only an order to show cause or an alternative writ will be issued. . . . ” A second ground urged by respondent for quashing the writ is that Rule 5, Rules of Supreme Court, 18 Wn. (2d) 4-a, requires that an appeal from any order other than a final order from which an appeal is allowed must be taken within fifteen days after the entry of such order; therefore, as the order or decree of public use and necessity is not a final judgment, and as the rule governing appeals is applicable in review by certiorari, the writ should be quashed because not perfected within fifteen days. Respondent also argues that certiorari will not lie to review the decree of public use and necessity because relators have an adequate remedy by appeal. *696 A Department of this court entered an order—no opinion was filed—granting, under Rule 30, Rules of Supreme Court, 18 Wn. (2d) 27-a, the motion to quash the writ. The matter is now before us for rehearing En Banc on petition of relators therefor. Three questions are posed by respondent’s motion to dismiss: (1) Was the writ of certiorari in-the case at bar issuable as a matter of right and without notice? (2) Is the order or decree of public use and necessity in the case at bar a final judgment, appeal from which, or review of by certiorari, required to be perfected within thirty days? (3) Have relators an adequate remedy by appeal? The first and second questions are answered in the affirmative and the third question in the negative, for the following reasons: Rule 30, Rules of Supreme Court, 18 Wn. (2d) 27-a, so far as pertinent, reads as follows: “Applications for original writs, other than writs of habeas corpus, shall be made to the chief justice, and may be made either with or without notice to the adverse party. When made without notice, except as to writs which issue as a matter of right, only an order to show cause or an alternative writ will be issued. . . . ” If we have a statute which provides that alleged error inhering in a decree of public use and necessity may be reviewed on appeal, ordinarily the decree may not be reviewed by writ of certiorari; that is, the condemnee has a right to a review of such errors by certiorari if no provision is made for appeal for that purpose. If an appeal is available at any stage of the eminent domain proceedings to review such questions, an adequate remedy is provided. If an appeal is not available, the decree of public use and necessity is a final judgment reviewable by writ of certiorari as a matter of right in aid of the appellate jurisdiction of this court. The statute (Rem. Rev. Stat., § 1002 [P.P.C. § 15-3]) reading as follows, grants this right: “A writ of review shall be granted by any court, except a police or justice court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the *697 jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.” It is clear from a reading of the foregoing statute that, where there is no right of appeal by which review may be had of alleged errors in a decree of public use and necessity, such decree is a final judgment which may be reviewed only by writ of certiorari, which, of course, issues as a matter of right. If there is a right of appeal and the question presented is whether the appeal provides a plain, speedy, and adequate remedy, the writ of certiorari may issue only in the discretion of the court. In State ex rel. Abbott v. Superior Court, 119 Wash. 26, 204 Pac. 815, the relators applied for a writ of certiorari to review a decree of public use and necessity in a condemnation case. The condemnors in that case were commissioners of a drainage district who sought to acquire lands necessary for a system of drainage. In granting the writ, we said: “The sole question is whether the relators have made a sufficient showing to justify the issuance of the writ of review. The adjudication of an order of use and necessity in a condemnation proceeding cannot be reviewed by appeal, but only in a proceeding like this. Calispel Diking Dist. No. 1 v. McLeish, 63 Wash. 331, 115 Pac. 508; Chicago Milwaukee & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 Pac. 706. The statute § 1002 of Remington’s 1915 Code (P. C. §7418), provides that a writ of review shall be granted to correct any erroneous or void proceeding, or proceeding not according to the course of the common law, and ‘there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.’ Section 1003 (P. C. § 7419) provides, among other things, that the writ may be granted without notice. It will be observed that § 1002 would seem to require the writ to be issued where there is no appeal, but that if the question were whether the appeal was an adequate remedy the court would be required to exercise discretion before the issuance of the writ. The statute says that the writ shall be granted to correct an erroneous proceeding, or proceeding *698 not according to the course of the common law, when there is no appeal. In State ex rel. McCormick v. Superior Court, 43 Wash. 91, 86 Pac. 205, it was held that the application for the writ must disclose some apparent error before the writ will be issued. In that case the writ was denied, but the relator there did not allege any distinct ground or particular claim of error. The sections of the statute above mentioned were not referred to in the opinion.” In State ex rel. Bremerton Bridge Co. v. Superior Court, 194 Wash. 7, 76 P. (2d) 990, a peremptory writ of certiorari was issued to review a decree of public use and necessity entered in a condemnation action instituted by the state. The state, represented by the attorney general, filed a motion to quash the writ or, in the alternative, to strike the stay order contained therein, upon the ground that the order for a writ of review was improvidently issued. In denying the motion, we stated that it is the settled law of this state that an adjudication of public use in condemnation proceedings may not be reviewed by appeal, but only by certiorari; that an order declaring a public use becomes final unless review thereof be taken to this court within the period prescribed by the statute after the entry of such order. As relators have no right of review by appeal, they are entitled to a writ of certiorari as a matter of right. Two opinions of this court are to the contrary: Tacoma v. Nisqually Power Co., 54 Wash. 292, 103 Pac. 49, and State ex rel. Bremer v. Superior Court, 68 Wash. 51, 122 Pac. 614. State ex rel. Washington Public Service Co. v. Superior Court, 86 Wash. 155, 149 Pac. 652, which was decided three years subsequent to State ex rel. Bremer v. Superior Court, supra, sustains the position of relators in the case at bar and sub silentio overrules Tacoma v. Nisqually Power Co., supra, and State ex rel. Bremer v. Superior Court, supra. State ex rel. Washington Public Service Co. v. Superior Court, supra, has never been overruled or modified. Consistently, the procedure prescribed in that opinion has been followed, even to the granting of writs of certiorari to review decrees of public use and necessity in eminent domain *699 proceedings brought by public utility districts. See State ex rel. Willapa Electric Co. v. Superior Court, 196 Wash. 523, 83 P. (2d) 742, and State ex rel. Washington Water Power Co. v. Superior Court, 8 Wash. (2d) 122, 111 P. (2d) 577. The statute (Rem. Supp. 1945, § 11610 (b)), which grants to public utility districts the power to condemn, provides: “ . . . and such right of eminent domain shall be exercised and instituted pursuant to resolution of the Commission and conducted in the same manner and by the same procedure as is or may be provided by law for the exercise of the power of eminent domain by incorporated cities and towns of the State of Washington in the acquisition of like property and property rights. . . . ” The power of incorporated cities and towns to acquire public utility properties is granted by a special' statute (Laws of 1909, chapter 150, p. 580, § 1, as amended by subsequent statutes (Rem. Rev. Stat. (Sup.), § 9488 [P.P.C. § 416-1])) in which enactment no procedure is prescribed. The general statute relating to eminent domain by cities and towns provides that, “Any final judgment or judgments rendered by said court upon any finding or findings of any jury or juries, or upon any finding or findings of the court in case a jury be waived, shall be lawful and sufficient condemnation of the land or property to be taken, or of the right to damage the same in the manner proposed, upon the payment of the amount of such findings and all costs which shall be taxed as in other civil cases, provided that in case any defendant recovers no damages, no costs shall be taxed. Such judgment or judgments shall be final and conclusive as to the damages caused by such improvement unless appealed from, and no appeal from the same shall delay proceedings under said ordinance, if such city shall pay into court for the owners and parties interested, as directed by the court, the amount of the judgment and costs, and such city, after making such payment in court, shall be liable to such owner or owners or parties interested for the payment of any further compensation which may at any time be finally awarded to such parties so appealing in said proceeding, and his or her costs, and shall pay the same on ren *700 dition of judgment therefor, and abide any rule or order of the court in relation to the matter in controversy. . . .” Rem. Rev. Stat, § 9230 [P.P.C. §26-31], In the above-quoted section of the statute, it will be noted, is the provision that, in the absence of appeal therefrom, the judgment or judgments shall be final as to the damages caused by the improvement, and that no appeal from such judgment shall delay proceedings under the ordinance providing for condemnation if the city shall pay into court for the condemnee and parties interested, the amount of the judgment and costs. The statute (Rem. Rev. Stat., § 9276 [P.P.C. § 26-123]) further provides that, except as therein otherwise provided, the practice and procedure under the statute in relation to the taking of appeals and prosecution thereof shall be the same as in other civil actions, but all appeals must be taken within thirty days from the date of rendition of the judgment from which the appeal is taken. Patently, .Rem. Rev. Stat., § 9276, grants no right of appeal but relates merely «to procedure. The right of appeal which Rem. Rev. Stat., § 9230, grants has to do with the judgment awarding compensation and is a limited right of appeal which relates solely to the ascertainment of just compensation. In other words, it is concerned solely with the jury question of just compensation and does not include the judicial question of public use or the decree of public use and necessity. The provision of our constitution (Art. IV, § 4, state constitution) which confers appellate jurisdiction on this court is not self-executing. An appeal may not be entertained by this court unless a method of appeal is prescribed by statute or by rule of this court. Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 158. Where, in a special proceeding (such as an eminent domain proceeding) authorized by a particular statute, a limited appeal only is authorized, the general appeal statute is not applicable, and the appeal permitted is restricted to only those questions as to which an appeal is especially authorized. North Coast R. Co. v. Gentry, 58 Wash. 80, *701 107 Pac. 1059; Chicago, M. & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 Pac. 706; and State ex rel. Davis v. Superior Court, 82 Wash. 31, 143 Pac. 168. The exercise of the power of eminent domain is a special proceeding ordinarily involving the entry of three separate and distinct judgments. Chicago, M. & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 Pac. 706 and State ex rel. Grays Harbor Logging Co. v. Superior Court, 100 Wash. 485, 171 Pac. 238. In none of our eminent domain statutes is a general or all-inclusive right of appeal granted. The eminent domain statutes governing condemnation by the state (Rem. Rev. Stat., §§891 to 900 [P.P.C. §§34-1 to -19]) expressly authorize an appeal from the judgment for damages, which is restricted to “the propriety and justness of the amount of damage in respect to the parties to the appeal.” Rem. Rev. Stat., § 899 [P.P.C. § 34-17]. The eminent domain statutes which govern condemnation proceedings by “any corporation authorized . . . to appropriate land, real estate, premises or other property” (Rem. Rev. Stat., §§ 921-927 and §§ 929-932 [P.P.C. §§ 28-1 to -13 and 28-15 to -21]), also authorize only a similarly limited appeal. These latter statutes are made applicable to eminent domain proceedings by counties (Rem. Rev. Stat., § 903 [P.P.C. § 28e-5]). Under each of these statutes a decree of public use and necessity can be reviewed only by certiorari. See State ex rel. Bremerton Bridge Co. v. Superior Court, 194 Wash. 7, 76 P. (2d) 990, which was a condemnation proceeding brought by the state; State ex rel. Pagett v. Superior Court, 46 Wash. 35, 89 Pac. 178, which was a condemnation proceeding by a county to acquire property for a highway; and Spokane Valley Power Co. v. Northern Pac. R. Co., 99 Wash. 557, 169 Pac. 991, and State ex rel. Grays Harbor Logging Co. v. Superior Court, 100 Wash. 485, 171 Pac. 238, which involved condemnation actions instituted by a corporation. While some eminent domain statutes authorize an appeal, it will be noted that the statutes respecting eminent *702 domain by cities and towns (Rem. Rev. Stat., §§ 9215-9279 [P.P.C. §§ 26-1 to 26-129]) differ from those statutes, in that the statutes governing eminent domain by cities and towns do not expressly authorize any appeal. The statute (Rem. Rev. Stat., § 9230) only by implication permits an appeal from the judgment for damages. That statute provides: “Such judgment or judgments shall be final and conclusive as to the damages caused by such improvement unless appealed from, . . . ” The foregoing provision, while not employing the language found in the corresponding provisions in other eminent domain statutes, is no different in effect and restricts the appeal to questions involving the amount of damages, for the reason that, by the terms of that section of the statute, every judgment in a condemnation proceeding is made final except the judgment as to the amount of damages. That this is so, readily appears from a reading of that section (Rem. Rev. Stat., § 9230), which provides that, if the city pays into court the amount of the judgment on the award, that judgment is a “ . . . lawful and sufficient condemnation of the land or property to be taken, or of the right to damage the same in the manner proposed, . . . ” and no appeal from that judgment “. . . shall delay proceedings under said ordinance, ...” but the city, “ . . . after making such payment into court, shall be liable to such owner or owners or parties interested for the payment of any further compensation which may at any time be finally awarded to such parties so appealing in said proceeding, ...” Rem. Rev. Stat., § 9276, contains no language from which it may be reasonably inferred that the statutes relating to appeals in civil actions are applicable to condemnation proceedings by cities and towns. Rem. Rev. Stat., § 9276, provides only that “ . . . the practice and procedure under this act ... in relation to the taking of appeals and prosecution thereof, ...” allowed by the act, “. . . shall be the same as in other civil actions, . . . ” except that any such appeal shall be taken within thirty days from *703 the date of the entry of the judgment from which the appeal is prosecuted. Eminent domain proceedings by counties are governed by one set of statutes (Rem. Rev. Stat., § 921 et seq.), and eminent domain proceedings by cities and towns are governed by other statutes (Rem. Rev. Stat., § 9215 et seq.). An unnecessary difference in interpretation of those statutes would make for confusion in the exercise of the power of eminent domain granted by another statute (Rem. Rev.. Stat. (Sup.), § 905-1) to cities, towns, port districts, and counties to acquire, maintain and operate aerial transportation facilities, and to acquire by condemnation the lands and other property necessary therefor. This section of the statute further provides that the exercise of the power of eminent domain so granted shall be . . under the same procedure as is or shall be provided by law for the condemnation and appropriation of private property for any of their respective corporate uses, ...” The foregoing section of the statute clearly expresses the intention of the legislature that there shall be no distinction between cities and towns on the one hand and counties on the other, all of which are grouped without distinction as municipalities. Chapter 102, p. 213, Laws of 1901, granted a right of appeal from the order of the court adjudicating or refusing to adjudicate that the contemplated use of the property sought to be appropriated is really a public use. That statute also granted a right of appeal from the judgment and decree of appropriation within thirty days after the entry of such decree, which appeal would present to this court the question of the propriety and justness of the amount of damages in respect to the parties to the appeal, and also the legality, propriety, and necessity of the appropriation. The statute was held unconstitutional in State ex rel. Seattle Electric Co. v. Superior Court, 28 Wash. 317, 68 Pac. 957, 92 Am. St. 831, for the reason that it violated the constitutional requirement (Art. II, § 19, state constitution) that the subject of an act shall be expressed in its title. *704 The foregoing statute discloses the legislative interpretation that, in the absence of such a statute, an order or decree of public use and necessity is not reviewable by appeal. The fact that, since the 1901 enactment, no like act conforming to constitutional requirements has been passed, manifests acceptance by the legislature, as a matter of public policy, the holding of this court that such an order or decree, although not appealable, may nevertheless be reviewed by certiorari. State ex rel. Washington Public Service Co. v. Superior Court, 86 Wash. 155, 149 Pac. 652, involved an application to this court for a writ to prohibit the entry of decree in eminent domain proceedings instituted by the city of Olympia under the 1909 public utilities statute (chapter 150, p. 580, Laws 1909). We held that the statutes governing eminent domain proceedings allowed an appeal only from the judgment on the award and are restricted to questions involving the amount of the award. We said: “The statutes of eminent domain further provide that the only question that can be determined on an appeal from the award by the jury is the amount of the award.” Tacoma v. Nisqually Power Co., 54 Wash. 292, 103 Pac. 49, and State ex rel. Bremer v. Superior Court, 68 Wash. 51, 122 Pac. 614, which sustain the position of respondent in the case at bar, should be overruled. They are contrary to the opinions of this court in all other eminent domain cases and conflict with the public policy of the state. Those two opinions were in effect overruled by State ex rel. Washington Public Service Co. v. Superior Court, 86 Wash. 155, 149 Pac. 652, and they are now hereby expressly overruled. State ex rel. Bremer v. Superior Court, supra, was decided about three years after the opinion in Tacoma v. Nisqually Power Co., supra, was filed in 1909. The Bremer case was decided by per curiam opinion which merely followed Tacoma v. Nisqually Power Co., supra, without any discussion. The opinion in the Nisqually Power case was based on § 51, chapter 153, p. 338, Laws of 1907 (Rem. Rev. Stat., § 9276), which provides, *705 “. . . except as herein otherwise provided, the practice and procedure under this act ... in relation to the taking of appeals and prosecution thereof, shall be the same as in other civil actions, but all appeals must be taken within thirty days from the date of rendition of the judgment appealed from. ...” In holding that, as the decree or order of public use and necessity was made prior to the judgment on the award, it could, under the terms of the statute relating to appeals, be reviewed on appeal from the judgment of award, we failed to consider or mention § 16 (Rem. Rev. Stat., § 9230) of the same statute, which, in so far as it provides for an appeal, relates merely to the jury trial of the issue of just compensation. There is no language in the statute (Rem. Rev. Stat., § 9276) which even by implication grants any right of appeal. If it be conceded, arguendo, that such right of appeal is granted, it does not follow, in view of the established law of this state that there are three separate judgments in a condemnation proceeding, that the appeal is from the second instead of from the first or third of such judgments; that is, from the judgment on the award rather than from the decree of public use and necessity or the decree of appropriation. We agree with counsel for relators that the statute does not require or admit of such construction, and reason and practice do not recommend it. As there is no right of review on appeal, the writ of certiorari issued as a matter of right. The motion to quash should be, and it is, denied. Steinert, Robinson, Simpson, and Hill, JJ., concur.