Blanchard v. Golden Age Brewing Co.

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Beals, J.

(dissenting) — The majority hold that the facts of this case present the question

“ .

. .

whether the legislature can abolish or abridge the power of the superior court to issue injunctions, or regulate that power in specific classes of disputes in such a way as will, to that extent, abolish or abridge the power,”

and holds that this the legislature cannot do, “because to do so would be an encroachment upon the judicial power.” In my opinion, this holding is contrary to the weight of authority, including the opinion of this court in the case of

Casco Co. v. Thurston

County, 163 Wash. 666 , 2 P. (2d) 677 , referred to in Judge Blake’s dissent. It is, of course, true that the superior court of this state is a constitutional court, and that jurisdiction or power vested in that court by the constitution cannot, by the legislature, be taken away in whole or in part.

Since very early times, the right of the British Parliament to take away substantive rights and prevent the courts from determining those rights upon any basis other than the statute has been recognized. The statute of frauds (29 Car. II, c 3) and several ancient statutes of limitation are conspicuous examples of the exercise of this prerogative. In this country, many states, including Washington, have added to the statute of frauds new sections bringing different classes of contracts within its scope. Substantive rights which may be in justice and equity well founded have by these laws been limited or destroyed by legislative fiat, and the courts thereby prevented from administering justice between man and man. Such limitations upon the powers of the courts to determine cases arising upon various forms of contract are based upon a sound legislative policy, and under the principle of the greatest good to the greatest number are whole

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some, if not necessary, restrictions upon the administration of absolute justice.

Other instances could be cited, but I shall refer only to the statute of this state (chapter 18, Laws 1933, p. .145 [Eem. Eev. Stat. (Sup.), §6297-1]'), upon which was based our recent decision in the case of

Shea v. Olson,

185 Wash. 143 , 53 P. (2d) 615 . By this statute, the right of one riding in an automobile as a guest to maintain an action for injuries received as the result of the negligence of the driver was absolutely taken away. True, the act did not state that the court should not have jurisdiction to entertain such a case — it merely abolished any such cause of action — but the effect, it seems to me, is exactly the same. One •presenting to the superior court his complaint, asking for damages based upon injuries received while riding in a car as a guest, suffers an adverse judgment because the legislature has said that, no matter how meritorious such a claim shall be (save as to the exceptions mentioned in the act), any application to the courts for relief shall be a vain and useless gesture. This goes farther than merely affecting the form of remedy for a wrong; it declares that a wrong shall henceforth be without remedy.

I do not understand that the majority opinion holds that the act here in question is bad because by its terms it states that the courts of this state shall not have jurisdiction to do certain things in a particular class of cases, but that it is void because it purports to take away some judicial jurisdiction derived from the constitution. For my part, I see no important distinction between a law which says that no court shall have jurisdiction to entertain an action for damages brought by a guest against his host and one which provides that no guest shall have a cause of action for damages in such a case. The effect is the same which

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ever form of words is used, and while technically the legislative intention is more clearly expressed by an act which abolishes the cause of action, I would be disinclined to hold an act bad simply because it reached the same result by the use of different words. I cannot follow the majority opinion in distinguishing between a legislative abolition of a cause of action and an act of the legislature which merely limits the power of the courts in certain cases. Certainly, the complete taking away of a right theretofore existing constitutes the exercise of a higher prerogative than the limiting of the relief to be granted in an action based upon alleged violation of a right which the legislature has still permitted to exist. The greater includes the lesser, and the power to destroy, generally speaking, should include the power to limit or reduce. Many states have laws limiting the amount of recovery in actions for wrongful death, and such statutes have been held valid.

Section 6, of art. IY, of the state constitution, quoted in part in the majority opinion, vests the superior court with original jurisdiction in law cases just as completely as in cases arising in equity, and still the exercise of this jurisdiction has been repeatedly limited by the legislature by the abolition of certain causes of action.

If it be argued that the constitutional jurisdiction of the superior court to hear and determine actions, if not destroyed in certain cases, cannot be limited by statute, it seems to me that the answer is that such jurisdiction has been limited by statutes prescribing certain rules of evidence, such as Rem. Rev. Stat., §1211 [P. O. §7722], which renders a party to an action incompetent to testify as to transactions with a person deceased, when the adverse party sues or defends as the representative of such person. The legislature has also prescribed the form of procedure

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which a court shall follow, as we find in Rem. Rev. Stat., § 996 [P. C. § 7512], that in a divorce case “the court shall state the facts upon which the decree is rendered.”

Section 1, chapter 62, Laws of 1931, p. 201 (Rem. Rev. Stat., § 11315-1 [P. C. § 6882-189]), which was considered by this court in the case of

Casco Co. v. Thurston County, supra,

which act is quoted by Judge Blake in his dissent, and which was by this court sitting

En Banc

held valid, certainly abridged the power of the superior court to issue injunctions in the specified class of cases. Manifestly, the legal remedy provided by the act to supplant the remedy theretofore open at equity places a heavy additional burden upon one whose property is illegally taxed but who does not come within the exceptions of the act. The equitable remedy by injunction was far more valuable than the legal remedy afforded by paying the unjust imposition and suing at law to recover judgment for the amount paid. By the act cited, the issuance of injunctions and restraining orders in certain cases was absolutely forbidden, no matter how outrageous the tax sought to be collected, or how difficult it might be for the owner of the property unjustly assessed to procure the money necessary to pay the tax. The legal remedy provided for by the act in many cases may afford no practical relief at all, but nevertheless the arm of the chancellor is paralyzed and unable to protect the property owner from possible irremediable damage. The opinion in the ease cited is sound, but in my opinion the law there upheld certainly abridged the power of the superior court.

The majority opinion states objections to several sections of the act. Some of these sections are certainly subject to criticism, and possibly some should, for one reason or another, be held void. A telling

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point is made against § 7 (e), it being stated that one who is faced with an irreparable injury is not required to await the pleasure of public officers nor to argue his case to a policeman. It is quite true that, if relief is needed, the courts should be open to one aggrieved, but at the same time no court of equity would enjoin persons from performing an act which the regularly constituted civil authorities were effectually preventing them from accomplishing. If the civil authorities are not functioning, the courts may, under the act, afford relief; if they are functioning, no judicial relief is needed.

This file is already long, and I shall not further add to it. For the reasons assigned, I am not in accord with the opinion of the majority.