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,
"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,
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,
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,
"Applications for original writs, other than writs of habeascorpus, 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,
"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,
In State ex rel. Bremerton Bridge Co. v. Superior Court,
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.,
State ex rel. Washington Public Service Co. v. SuperiorCourt,
[1] 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 rendition *700 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.
[2] 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.,
[3] 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,
[4] 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,
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,
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 inState ex rel. Seattle Electric Co. v. Superior Court,
State ex rel. Washington Public Service Co. v. SuperiorCourt,
"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.,
State ex rel. Bremer v. Superior Court, supra, was decided about three years after the opinion in Tacoma v. Nisqually PowerCo., supra, was filed in 1909. The Bremer case was decided byper curiam opinion which merely followed Tacoma v. NisquallyPower Co., supra, without any discussion. The opinion in theNisqually 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.
The statute providing for the granting of a writ of certiorari is Rem. Rev. Stat., § 1002 [P.P.C. § 15-3].
"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 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 *706 law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law."
In Puyallup v. Lacey,
"At the hearing in this court the respondent moved to dismiss the appeal for the reason that the order is not appealable and this court has no jurisdiction. This contention is based onWestern American Co. v. St. Ann Co.,
"`Either party may appeal from the judgment for damages entered in the superior court to the supreme court of the state within thirty days after the entry of judgment as aforesaid, and suchappeal shall bring before the supreme court the propriety andjustness of the amount of damages in respect to the parties tothe appeal;'
and the court held that on such appeal it could only review questions affecting the propriety or justness of the damages claimed or allowed. The appeal in this case is prosecuted under the act of March 3, 1905 (Laws 1905, p. 84), which especially applies to cities. Section 50 of that act provides as follows:
"`Except as herein otherwise provided, the practice and procedure under this act in the superior court and in relation to the taking of appeals and prosecution thereof, shall be the sameas in other civil actions, but all appeals must be taken within thirty days from the date of rendition of the judgment appealed from.'
It will thus be seen that the act of 1905 does not restrict the right of review to the question of damages alone, but such right is regulated and controlled by subd. 1 of § 6500, Bal. Code, which provides that, . . .
The motion to dismiss the appeal is therefore denied." *707
On April 23, 1907, State ex rel. Northern Pac. R. Co. v.Superior Court,
"The motion to quash must be granted. In this state the writ of review lies to review the judgment of an inferior court or tribunal only where there is no appeal, or in the judgment of the court no plain, speedy and adequate remedy at law. Bal. Code, § 5741 (P.C. § 1396). The act of the legislature relating to condemnation proceedings for necessary public improvements by cities of the third class to which the city of Georgetown belongs, provides that the practice and procedure under the act in relation to taking appeals and the prosecution thereof shall be the same as in other civil actions. Laws 1905, p. 84, § 50. InPuyallup v. Lacey,
"That the remedy by appeal is adequate, within the meaning of the statute, there can be but little dispute, as all questions that can be brought before the court by a writ of review can be brought before it by an appeal. Nor should the writ be granted because the remedy by appeal is less speedy than the remedy by writ of review. The length of time it will take to prosecute an appeal is not a test of the efficiency of the remedy. It must further appear that the delay incident to the appeal will work a deprivation of some substantial right which will prevent the enjoyment of the fruits of the appeal, before it can be said that the remedy is inefficient.
"The motion to quash is granted, and the application dismissed." *708
In 1907 the legislature adopted chapter 153, which was a comprehensive act enabling cities to exercise the right of eminent domain. That act has been substantially continued through to this day. Section 16 of the act can be found in Rem. Rev. Stat., § 9230 [P.P.C. § 26-31]. Section 51 of the act is now Rem. Rev. Stat., § 9276 [P.P.C. § 26-123].
Tacoma v. Nisqually Power Co.,
"Section 51 of the act under which the proceedings were instituted provides in part as follows:
"`Except as herein otherwise provided, the practice and procedure under this act in the superior court and 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.' Laws 1907, p. 316, § 51.
"In the case of Puyallup v. Lacey,
"`In Puyallup v. Lacey,
"From this language it might be inferred that the order adjudicating the question of public use is itself appealable, *709 but no such question was then before the court. The court was simply considering the question whether the relator had a remedy by appeal in any form, and the statement as to what was decided in Puyallup v. Lacey is inaccurate if not misleading. The question here presented was not involved in the Puyallup case. There the appeal was prosecuted from a final judgment of dismissal, and the question of the right to appeal from an order of this kind was neither discussed nor considered. The question is therefore an open one in this court.
"Subd. 1 of Bal. Code, § 6500 (P.C. § 1048), provides that an appeal will lie,
"`From the final judgment entered in any action or proceeding, and an appeal from any such final judgment shall also bring up for review any order made in the same action or proceeding either before or after the judgment, in case the record sent up on the appeal, or any supplementary record sent up before the hearing thereof, shall show such order sufficiently for the purposes of a review thereof.'
"There is no room to controvert the proposition that the order from which the present appeal is prosecuted is an order made before judgment in the condemnation proceedings, within the purview of this statute, and that such order may be reviewed on appeal from the final judgment. It is the policy of the law, and has heretofore been the policy of this court, to discourage a multiplicity of appeals and to deny an appeal from all orders that may be reviewed on appeal from the final judgment, unless an appeal is expressly given by statute."
Section 6500, subd. 1, of Bal. Code, referred to in the above case, is now Rem. Rev. Stat., § 1716 [P.P.C. § 5-1], subd. 1.
In a per curiam opinion in State ex rel. Bremer v. SuperiorCourt,
"The motion to quash must be granted. We have established the rule that this writ will not issue, where an appeal will lie furnishing an adequate remedy, and that in condemnation proceedings appeal is the proper proceeding to review the adjudication of public use. The cases so holding are so recent that we do not deem it useful to discuss the question further.Puyallup v. Lacey,
These cases have never been overruled.
There is no statutory provision for appeal of any issue other than damages in eminent domain proceedings by private corporations, the state, counties, or municipal corporations other than cities and towns. In Seattle, P.A. L.C.R. v. Land,
"The proceedings for condemnation by public service corporations are clearly defined by statute and well settled in practice. Upon petition and notice, a hearing is first had upon the questions of public use and necessity. This hearing necessarily involves the corporate capacity and the right to maintain the proceedings on the part of the petitioner as a public service corporation, the purpose for which the land is sought and its necessity for that purpose. Rem. Bal. Code, § 925 (P.C. 171 § 176). These are questions for the court. From its decision thereon there is no appeal. Western American Co. v. St.Ann. Co.,
We thus have two lines of decisions in this state regarding condemnation proceedings. As to private corporations, the state, counties, and municipal corporations other than cities and towns, there being no right of appeal of any question other than the amount of damages, it necessarily follows that any question of error in the issuance of an order of public use and necessity can only be reviewed by certiorari. On the other hand, as to cities and towns, the right of appeal is granted by statute, and such appeals are not permitted to be brought here piecemeal, but only from the final judgment. As to this class of cases, there is no necessity for a writ of certiorari to determine whether or not there has been any error in the issuance of an order *711 of public use and necessity, because all questions raised during any stage of the proceedings can be determined upon final appeal.
The public utility districts act provides that
". . . 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. . . ." Rem. Supp. 1945, § 11610(b).
It can be safely assumed that the proponents of public power, when they submitted the initiative to the voters in 1930, deliberately placed this provision in the act, having in mind the statutory provisions relating to appeals, as interpreted by this court in 1906 and 1907. This is the first time since 1907 that the Puyallup, Northern Pac. R. Co., Nisqually, and Bremer cases have ever been questioned. In the Willapa Electric Co. and Washington Water Power Co. cases the question of the right to a writ of certiorari was not raised nor considered by this court.
It is contended that State ex rel. Washington Public ServiceCo. v. Superior Court,
No such issue was before the court, and the foregoing statement was purely dictum. We were only considering, as we said, "an appeal from the award by the jury," and the statement was made to explain our position.
It is contended that relators are entitled to a writ of certiorari as a matter of right because, under the provisions of Rem. Rev. Stat., § 9230, the public utility district could, pending appeal, pay into court the amount of the award, plus costs, and take over the property before it had been determined by this court whether or not they had any legal right so to do (as to the order of public use and necessity), thus depriving relators of a substantial right which would prevent the enjoyment of the fruits of the appeal.
In re Rainier Avenue,
On application, we suspended the operation of the judgment pending appeal, and, in discussing the provisions of the statute giving immediate possession to the city upon payment of the award, said:
"This statute undoubtedly has force in a case where specific property has been condemned, and no contest *713 remains further than a contest over the amount of the award. But seemingly there are other and graver questions presented by this appeal, questions which go to the right of the city to enter upon or disturb the appellant's property."
I have no doubt that the appellant in any eminent domain proceeding instituted by a city or a public utility district, where the questions involved in the appeal consist not only of the amount of the award, but also the right of the city or the district to institute the proceedings, or any procedural matters therein, could apply to this court and have the matter stayed until all such questions had been determined by us. Relators have an adequate remedy by appeal. They are not entitled to a writ of certiorari as a matter of right. If they feel that their remedy is not adequate, they should apply to the legislature for relief, rather than to ask us to overrule cases which have been the law of this state for forty years.
I therefore dissent.
MALLERY, C.J., JEFFERS, and ABEL, JJ., concur with SCHWELLENBACH, J. *714