State ex rel. Ottesen v. Clausen

124 Wash. 389 | Wash. | 1923

Mitchell, J.

— This is an original proceeding in mandamus to compel payment of the balance alleged to be due for the building of a section of a permanent highway in .Kitsap county pursuant to §'6773 et seq., Rem. Comp. Stat The work was done under a contract duly entered into. In the application it is alleged that the contract has been fully performed, and that the work has been accepted and approved by the county engineer and the county commissioners, but that the director of public works and the supervisor of highways arbitrarily refuse to certify to the state auditor that the work has been completed in accordance with the terms of the contract, hence this action to compel certification and issuance of a proper state warrant.

In response to an alternative writ, the respondents have answered, denying many of the material allegations of the complaint, and affirmatively alleging, in effect, that the work in material respects has not been completed according to the terms of the contract and in the manner required by the law, for which reason certificates necessary to authorize the issuance of a state warrant have been refused.

The relator relies on the cases of State ex rel. Shores v. Ross, 44 Wash. 246, 87 Pac. 262, and State ex rel. Washington Paving Co. v. Clausen, 90 Wash. 450, 156 Pac. 554, as sustaining the procedure by way of original application in this court. Without discussing those eases, we are of the opinion they are authority for relator’s contention.

We are induced, however, to observe that the issues presented are issues of fact. The case does not involve the validity of any statute, nor in its character does it embrace any great public right. Nor does the exercise of original jurisdiction of the case in this court appear to be necessary or indispensable to prevent a failure of justice. While it is true that art. 4, § 4, of the state constitution and its statutory duplicate, § 1, Bern. Comp. Stat., confer original jurisdiction on this court in mandamus to all state officers, they do not provide that such jurisdiction shall be exclusive. Article 4, § 6, of the state constitution and its statutory duplicate, § 15, Bern. Comp. Stat., confer general original jurisdiction on the superior court, and out of an abundance of foresight and care provide for original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court. Thus the superior court is established as the trial court of this state. It has the facilities for the trial of cases that lead to conclusions and judgments in those courts which are intended to be, and, as a matter of fact, are, of great benefit to the supreme court in all cases appealed. This condition of the law clearly suggests the propriety and right of this court, in the exercise of a sound discretion, to relegate litigants to the superior court for the trial of cases of the character of the present one where questions of fact are involved and the procedure has for its purpose the enforcement of a private right. Such we understand to be the generally accepted doctrine. There is an abundance of authority cited to sustain the rule found in 18 R. C. L., Mandamus, p. 101, § 15, as follows:

“Though the state courts of last resort are given original jurisdiction to issue writs of mandamus, and under such a grant have in many instances exercised such jurisdiction frequently without their jurisdiction being questioned, it does not follow that such courts whose principal function is to exercise appellate or supervisory jurisdiction will assume original jurisdiction in all cases in which their aid may be sought and which otherwise may be a proper case for the use of the remedy. And in this connection the established rule seems to be that as original jurisdiction is conferred in order that the court of highest authority in the state should have the power to protect the rights, interests, and franchises of the state, and the rights and interests of the whole people, to enforce the performance of high official duties affecting the public at large, and, in emergency (of winch the court itself is to determine), to assume jurisdiction of cases affecting local public interests, or private rights, where there is no other adequate remedy, and the exercise of such jurisdiction is necessary to prevent a failure of justice, the court is vested with a sound legal discretion to determine for itself, as the question may arise, whether or not the case presented is of such a character as to call for the exercise of its original jurisdiction. And some courts say that original jurisdiction should not be assumed except in cases affecting the sovereignty of the state, its franchises, or prerogatives, or the liberties of its people, or in exceptional cases where a failure to take jurisdiction would amount to a denial of justice and only when the interest of the state at large is directly involved, and where such interest is the principal, and not a collateral, question.”

We make these observations for the purpose of giv ing notice that in future cases the rule will be kept in mind. In the present case, however, as it does not appear there is any reported decision of this court contrary to the rule of procedure followed, though apparently unquestioned, in the cases relied on by relator, it is ordered that the superior court, of Kitsap county be and it is hereby authorized and directed to take evidence of the respective parties upon the issues of fact presented by their pleadings and to make a return of the evidence and the court’s findings thereon to this court. Either party hereto may call the matter on for hearing before that court on ten days’ notice in writing duly served on the other party.

Main, C. J., Bridges, Mackintosh, and Holcomb, JJ., concur.