Jones v. Reed , 3 Wash. 57 ( 1891 )

The opinion of the court was delivered by

Dunbab, J.

The first proposition urged by appellants is that, under the provisions of the constitution of this state, the superior court has no jurisdiction to entertain proceedings by mandamus against state officers to compel their performance of any official act; and, as the writ of injunction is in every respect the correlative of the writ of mandamus, it follows that it has no jurisdiction to enjoin state officers in cases of this kind. We do not think this contention can be maintained. All that is decided in Board of Liquidation v. McComh, 92 U. S. 531, cited by appellants on the point, is that in certain cases, probably analogous to this, writs of mandamus and injunction are somewhat correlative to each other. But the truth of this proposition may be granted without affecting the question of jurisdiction under our constitution. Sec. 4 of art. 4 of the constitution provides that the supreme court shall have original jurisdi ction in habeas corpus and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings (with a $200 limitation in civil actions for the recovery of money). We know of no cases where a constitutional provision of this kind has been construed to confer exclusive jurisdiction. It is a grant of original jurisdiction, but there is nothing in the language of the grant to convey the idea of exclusiveness, or to exclude the idea of concurrent jurisdiction. In Delafield v. State of Illinois, 2 Hill, 159, and a well-considered case, the court says:

“There is nothing in the nature of jurisdiction, as applied to courts, which renders it exclusive. It is not like a grant of property, which cannot have several owners at the same time. It is matter of common experience that two or more courts may have concurrent powers over the same parties and the same subject-matter. Jurisdiction is not a right or a privilege belonging to the judge; but an authority or power to do justice in a given case when it is brought before him. There is, I think, no instance in the whole history of the law where the mere grant of jurisdiction to a particular court, without any words of exclusion, has been held to oust any other court of the powers which it before possessed.”

In Courtwright v. Mining Co., 30 Cal. 573, it is held that the grant of original jurisdiction to a particular court of a class of cases, without any words excluding other courts from exercising jurisdiction in the same cases, does not necessarily deprive other courts of concurrent jurisdiction in such cases. To the same effect is Ames v. Kansas, 111 U. S. 449 (4 Sup. Ct. Rep. 437); United States v. Louisiana, 123 U. S. 32 (8 Sup. Ct. Rep. 17); Bors v. Preston, 111 U. S. 252 (4 Sup. Ct. Rep. 407). In fact we think the universal current of decisions is that way, and that no cases can be found holding otherwise, excepting in a few instances where, under constitutional provisions giving original jurisdiction, congress has by law made the jurisdiction of the federal courts exclusive; but they were cases which were peculiar to, and sprang out of, the very existence of the federal government, and the doctrine of exclusiveness in those cases is discussed from altogether a different standpoint and involves altogether a different principle. But we do not base our judgment in this case entirely on authority, so far as the construction of § 4 is concerned; for the same fundamental law that grants the original jurisdiction to the supreme court is not silent as to the original jurisdiction of the superior court; and § 4 must not be construed as an independent section, but must be construed in connection with § 6, which, among other things, provides that the superior court shall also have original jurisdiction in all cases and all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court. Had the language of the constitution been that the supreme court shall have “exclusive” original jurisdiction, etc., employing a word not uncommon in conferring jurisdiction on courts, there would not be much room for construction; but as the framers of the constitution did not see fit to use such a word, or any other word tending to confer exclusive jurisdiction, there is still, it seems to us, about as little room for construction. The language employed is in perfect harmony with the idea of concurrent jurisdiction, and the idea of concurrent jurisdiction is not an uncommon one in the history of our courts. It therefore seems reasonable that the framers of the constitution did not intend to vest exclusive jurisdiction in the supreme court, and it follows that, under the provisions of § 6, the superior court has original jurisdiction.

The second contention of the appellants is, that the respondent has no interest in the controversy to enable him to prosecute this suit. The allegation is, that he is a citizen and taxpayer of the State of Washington. On this proposition there is a perplexing conflict of authority, both as regards the cases reported and the opinions of eminent authors. Some authors assert, and some courts hold, that in no case can a private individual, in the absence of statutory authority, maintain a. bill to enjoin a breach of public trust without showing that he will be specially injured thereby; and that it must appear that his injury will be separate and distinct from the injury that he may suffer in common with the community at large, otherwise the remedy must be sought through those representing the public; while other authors and courts hold that municipal corporations and their officers maybe restrained from transcending their lawful powers, or violating their lawful duties, in any manner which will injuriously affect the taxpayer, on the complaint of an inhabitant who shows no other interest than that he is a taxpayer. The cases holding against the intervention of the taxpayer found their judgment on the theory that the misappropriation of public funds by the officers of a corporation is in the nature of a public nuisance which cannot be abated at the suit of a private citizen, and that, unless some special private injury is shown, the relief must be obtained through the intervention of officers appointed to protect public interests. We will not attempt to collate the authorities pro and con on this proposition, but are inclined to the opinion that the right of a resident taxpayer to invoke the interposition of a court of equity to compel the officers of a municipal corporation to do their duty, or to restrain them from illegally increasing the burden of taxation by squandering the public funds of the corporation, has received the great weight of at least modern authority. The supreme court of the United States has spoken on this subject in Crampton v. Zabriskie, 101 U. S. 601. The doctrine was thus laid down by Justice Field:

“Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question.”

It will be observed, however, that this case falls short of asserting the doctrine claimed here by the respondent, that courts of equity will restrain the action of state officers in matters of public concern on the petition of a taxpayer who shows no special interest; nor will the language or argument of the court bear any such construction. On the other hand, it is based on the relationship of the taxpayer to the municipal, or quasi municipal, corporation. Indeed, of all the cases cited by the respondent, not one case goes beyond the doctrine laid down in Crampton v. Zabriskie, so that it will not be necessary to review them here. Nor have we been able to find a case which extends the doctrine beyond that case. In all the cases reported the restraining order has been asked against county, town, city or district officers. It is argued by respondent that, notwithstanding the absence of authority, there is no difference in principle between restraining county officers and state officers in matters of public concern on the prayer of a taxpayer. The principle upon which the doctrine in regard to municipal, or quasi municipal, corporations is based, flows from its analogy to a well-settled doctrine in equity governing private corporations, where each stockholder has an interest in the property of the corporation, and may interfere to protect the corporate funds from the illegal or fraudulent acts of its officers. Dill. Mun. Corp. (4th ed.) § 915.

But this reasoning cannot apply to a state government. The county is a quasi corporation; the state is a sovereignty. The county only possesses such powers as the legislature of the state confers upon it. Its revenue, its property, its very existence, depend upon statutory enactment. It can be enlarged, dismembered or annihilated at the will of the state. The state, on the contrary, has all the powers not relinquished to the general government by the articles of federation, and, subject to these relinquishments, its sovereignty is supreme. One of the necessary attributes of sovereignty is the protection of the sovereign power and the maintenance of the state organization.

As the fallacy of a proposition can best be shown by distorting it, we may presume that if one of the departments of the state government can he suspended at the instance of a privatq citizen, who has nothing more than a community interest in a matter which concerns the general public, that every department of the state can be suspended at the same time, and the whole machinery of the government stopped, and the very existence of the state, so far as the exercise of its functions are concerned, destroyed. Surely such a theory of practice is not in harmony with the genius of our government, nor will authority sanction, or public policy permit, the adoption of a rule which will authorize any number of volunteers who may, rightfully or wrongfully, interpret the laws different from the interpretation put upon them by the officers of the state, to paralyze for a time every or any branch of the state government. It seems to us that there is a difference in principle, and there might be a very great difference in results; and probable results are what the policy of the law is based upon. To prevent just such results, and to protect the interests of the public, the statute has provided for the election by the taxpayers of an officer — the attorney general — who is especially clothed with authority to institute proceedings of this kind. In the act creating the office of attorney géneral, and defining his duties, in the Laws of 1887-88, p. 8, § G, it is provided, among other things, that it is his duty “to enforce the proper application of funds appropriated to the public institutions of the territory; ” nor do we understand that any of the provisions of that chapter have been repealed by subsequent enactments of the state. The constitution provides that all laws in force at the time of its adoption shall remain in force until their repeal; and there is nothing in the provisions of the act entitled “An act in relation to attorneys” (Laws 1891, p. 95), which repeals any of the provisions of the act of 1887-88. It might as well be held that all the territorial acts in relation to prosecuting attorneys have been repealed by the same act. The law, then, having provided an officer for an especial duty, it is the better policy to submit such litigation to his guidance.

Showing the distinction in the minds of the courts between interfering with the collection and disposition of the revenue of counties and towns and cities, and the disposition of the revenue of a state, we quote from the language •of the United States supreme court in Slate Railroad Tax Cases, 92 U. S. 575:

“These reasons, and the weight of authority by which they are supported, must always incline the court to require a clear case for equitable relief before it will sustain an injunction against the collection of a tax which is part of the revenue of a state. Whether the same rigid rule should be applied to taxes levied by counties, towns and cities, we heed not here inquire; but there is both reason and authority for holding that the control of the courts, in the exercise of power over private property by these corporations, is more necessary, and is unaccompanied by many of the evils that belong to it when affecting the revenue of the state.”

This court, untrammeled by precedent or authority in laying down a policy for this state, deems it safer to relegate the instituting of suits involving the disposition of the revenue of the state, where no private interests are involved, to the judgment and discretion of the attorney general. With this view of the case, it is not necessary to examine other alleged errors. The demurrer should have been sustained.

The judgment is therefore reversed, and, as the demurrer goes to the life of the complaint, the case is dismissed.

Anders, O. J., and Scott and Stiles, JJ., concur.