it "is incumbent upon a plaintiff, when instituting a judicial proceeding, to name the proper party defendant to the cause of action"
How later courts described this case
- it "is incumbent upon a plaintiff, when instituting a judicial proceeding, to name the proper party defendant to the cause of action"
Written by the judges who cited it.
The opinion
Geraghty, J.
(concurring) — While I agreed with the views of the majority on the main issues in this case, I had some doubt of the propriety of the court’s entertaining an action to pass upon the constitutionality of an act of the legislature in advance of its effective date, even though, as pointed out in the majority opinion, the declaratory judgment act would seem to warrant the proceeding. I find, however, that the practice of entertaining agreed cases involving the constitutionality of statutes has become firmly established. Long before the practice received express statutory approval by the declaratory judgment act, Judge Chadwick, in
Huntworth v. Tanner,
87 Wash. 670 , 152 Pac. 523 , Ann. Cas. 1917D, 676, speaking for the court, said:
“To bring a case to this court to test the constitutionality of laws has become a constant practice. They
*116
are brought here by the officers of the state, by individual litigants, and by the connivance — and we use the word in no derogatory sense — of the state and the individual. We have accomplished by an accepted practice what has been done by the legislature or by constitutional amendment in some of the other states, notably in the state of Massachuetts, where laws are submitted for the opinion of the judges prior to the time of their final passage by the legislature. In most of the cases of the kind to which we have referred, we know, as everyone knows, no real controversy has arisen, and that the object of the suit is to take the opinion of this court. In recent years we have passed upon the constitutionality of laws in what may be truthfully declared to be agreed cases, scores of times, the most prominent instance being in the case of
State ex rel. Davis-Smith Co. v. Clausen, 65
Wash. 156, 117 Pac. 1101 , 37 L. R. A. (N. S.) 466, where, with nothing before us but the question of whether the law, not yet in operation was constitutional, we anticipated it and went into every phase of the law of the case.”
On the strength of the practice thus recognized, I feel warranted in concurring in the majority opinion.