Leavitt v. Chambers , 1897 Wash. LEXIS 320 ( 1897 )

The opinion of the court was delivered by

Gordon, J.

This appeal is from a judgment of the superior court for Chehalis county, which reversed and set aside a judgment in favor of the appellants Leavitt and Maloney rendered by a justice of the peace. The respondent herein instituted the proceedings in the superior court under the provisions of title 16, ch. 14, 2 Hill’s Code, relating to certiorari. The writ was issued by the clerk conformably to § 1623, Code Proc., (Vol. 2, Hill). Upon the return of the writ in the lower court the appellants herein moved to quash the writ upon the ground, among others, that it was issued by the clerk without any order or authority from the court or the judge thereof. The motion to quash was denied, and exception duly taken.

The real question for decision is, does the act approved March 13, 1895, relating to special proceedings of a civil nature (Session Laws, 1895, p. 114), repeal § 1623 of the code, which is as follows:

“Upon complying with the provisions of the preceding section, the party applying shall be entitled to such writ, which shall be issued by the clerk as of course, and no application to the superior court, or the judge thereof, shall be necessary in the premises.”

We think the question must be answered in the affirmative.

Section 6, art. 4, of the constitution of this state, relating to the jurisdiction of the superior court provides :

“ Said courts and their judges shall have power to issue writs of . . . certiorari,” etc.,

which evidently contemplates that the application for the writ shall be made to the court or the judge thereof, and the act of 1895, supra, is in harmony therewith. Section 5 of that act is as follows :

“ The application must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to he given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.”

In other words, the act of 1895 provides for a different mode of procedure than that contemplated by § 1623 above set out. The later act should prevail. It furnishes in itself a full, complete mode of procedure in certiorari proceedings; from which it follows that the prior proceedings in relation thereto are abrogated, even without words of express repeal. We think that the court erred in denying the motion to quash the writ.

Reversed.

Scott, C. J., and Dunbar, Reavis and Anders, JJ., concur.