State Ex Rel. Ernst v. Superior Court , 198 Wash. 133 ( 1939 )

I dissent. In Acme Finance Co. v. Huse, 192 Wash. 96,73 P.2d 341, 114 A.L.R. 1345, the court, under the cloak of the declaratory judgment act, assumed "revisionary power" over enactments of the legislature. Now, under the same ample mantle, it assumes administrative functions reposed, by legislative enactment, in a department of the state government. What the superior court is proposing to do, and what this decision permits it to do, is to determine, in the first instance, what constitutes employment under the unemployment compensation act. Laws of 1937, chapter 162, p. 611, § 19 (g). No authority for the assumption of such jurisdiction can be found in that act; for, in defining what constitutes employment under the act, it is provided in § 19 (g) (5):

"Services performed by an individual for remuneration shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the director that:

"(i) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and

"(ii) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprises for which such service is performed; and

"(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business, of the same nature as that involved in the contract of service."

I do not see how, by the use of symbols of the English language, the authority to determine what constitutes employment could have been more clearly or more definitely reposed in the director of the department of social security. We are not now concerned with the remedies the respondents may have, in case of a ruling adverse to their contentions on the question of what constitutes employment. The issue now is whether the court is empowered to determine that question in advance of a ruling by the director.

Under analogous situations, presented under the industrial insurance act, this court has consistently held that jurisdiction, in the first instance, is exclusively reposed in the department of labor and industries. Maddox v. IndustrialIns. Commission, 119 Wash. 21, 204 P. 1057; Cole v.Department of Labor Industries, 137 Wash. 538, 243 P. 7;Abraham v. Department of Labor Industries, 178 Wash. 160,34 P.2d 457; Prince v. Saginaw Logging Co., 197 Wash. 4,84 P.2d 397. In the first case cited, the court said:

"We think it is plainly apparent that this is nothing but an effort on the part of appellant to bring into the original jurisdiction of the superior court a controversy over which that court does not have any original jurisdiction. It is plain from the provisions of our workmen's compensation act that the original jurisdiction to determine the classification of injuries received by workmen in extra-hazardous occupations and the amount of awards to be made such injured workmen rests exclusively in the commission, and that such questions must first be decided by the commission before the courts can be resorted to looking to the further consideration of the merits of such controversies. The manner of bringing such controversies into the superior court is by review in the nature of an appeal from the final decision of the commission, the procedure for which is very simple and clearly pointed out in § 6604-20, Rem. Code (P.C. § 3488)."

It may be said that no procedure by appeal from the ruling of the director upon what constitutes employment is provided in the unemployment compensation act. This, however, is immaterial. In the absence of adequate remedy by appeal, certiorari is always available to review rulings of administrative boards and officers.

The declaratory judgment act was never designed to extend jurisdiction of the courts over administrative functions of state departments and officers. Borchard on Declaratory Judgments 156;Bradley Lumber Co. v. National Labor Relations Board,84 F.2d 97 (certiorari denied by supreme court). In that case, the court said:

"It is urged that the bill ought to be retained because of its prayer for a declaratory decree concerning the matter of the Board's jurisdiction over appellants. We do not think so. The new power to make a declaratory decree does not authorize a court of equity by declaration to stop or interfere with administrative proceedings at a point where it would not, under settled principles, have interfered with or stopped them under its power to enjoin. The declaratory decree is a useful form of remedy, but the statutory provision for it (Declaratory Judgment Act, 28 U.S.C.A. § 400) does not enlarge the scope of equity jurisdiction to permit its application to controversies which have not yet reached the judicial stage."

Believing that the superior court is threatening to assume jurisdiction of administrative functions which are vested exclusively in the department of social security, I think the writ of prohibition should issue.