Later courts went against this
Overruled on other grounds by Save Our Rural Environment v. Snohomish County, 99 Wash. 2d 363 (1983)
Ass’n v. Kitsap County, 33 Wn. App. 108, 118, 652 P.2d 383 (1982), overruled on other grounds by Save Our Rural Env’t v. Snohomish County, 99 Wn.2d 363, 367, 662 P.2d 816 (1983)).
The opinion
Andersen, C.J.
(dissenting)—The majority holds that once a county is sued in an adjoining county, the county sued cannot obtain a change of venue regardless of what showing it may make. I respectfully dissent on three separate grounds—none of which relate to the merits of that result.
First, the majority's intricate interpretation of two statutes plain on their face loses sight of that most elementary of all rules of statutory construction, that
Where the language of the statutes involved is clear and unambiguous it requires no construction or interpretation.
*120 (Italics mine.) Thompson v. Lewis Cy., 92 Wn.2d 204, 207 , 595 P.2d 541 (1979) and cases there cited. Moreover, "if the language used is unambiguous a departure from the plain meaning is not justified by policy considerations." State Chartered Banks v. Peoples Nat'l Bank, 291 F. Supp. 180, 197 (W.D. Wash. 1966).
The two statutes here involved could not be more clear or less ambiguous. One provides that a county "may" be sued in an adjoining county; 6 and another provides that a party sued "may" move for a change of venue. 7 That is precisely what happened here.
Plaintiffs sued Kitsap County and others in the Superior Court for King County as they were entitled to do. Thereupon, certain of the defendants moved to change the venue of the action to Kitsap County as I believe they also had every right to do. The motion for a change of venue to Kit-sap County was supported by an affidavit detailing the names of 18 Kitsap County residents (including a number of public employees and officials) who would be testifying for the defense. That affidavit pointed out that it would be disruptive and cause loss of time for the county officials and employees if they had to go to King County, and also, that the suit could be tried much faster in Kitsap County *121 because of court congestion problems in King County. Under the law as it has been considered, the trial court's ruling granting the motion for a change of venue to Kitsap County was a discretionary ruling, 8 and no abuse of that discretion is suggested by the majority.
Second, the majority's reliance on decisions construing statutes relating to venue of suits against the State in construing the statute relating to venue of suits against a county is misplaced. That is because in those decisions the statutes construed were mandatory and related to where the State "shall" be sued. Obviously, then, there was a conflict which needed judicial interpretation in those situations where the mandatory provisions of the venue of suits against the state statute conflicted with the permissive provisions of the change of venue statute. That is not what is involved here, however, since the statute providing where counties can be sued is permissive as is the change of venue statute. The two situations, therefore, are not comparable. Both statutes here can and should be given effect.
Third, the majority holding is at cross purposes with the principle that
Where the language of a statute is clear, we will respect it.
(Italics mine.) Griffin v. Department of Social & Health Servs., 91 Wn.2d 616, 624 , 590 P.2d 816 (1979).
*122 The word "respect" in the principle just quoted is an important one. It is vital to the concept of mutual respect between the three independent branches of state government that the courts keep in mind at all times, as the State Supreme Court has held, that "[w]e are not a super legislature." 9 That is not just an abstract concept in this case since this court cannot know what effect the majority decision might have on county budgets and levels of service. This is the kind of thing which it is in the nature of the legislative process to determine through staff studies, committee hearings and floor debate, prior to changing a statute. Appellate courts do not have that factfinding capability and the lack of it accounts for the unforeseen disruptive effect of so many exercises in what is commonly termed "judicial legislation". It was Justice Oliver Wendell Holmes who wisely admonished:
it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.
(Italics mine.) Missouri, K. & T. Ry. v. May, 194 U.S. 267, 270 , 48 L. Ed. 971 , 24 S. Ct. 638 (1904).
For the foregoing reasons, I respectfully dissent from the majority opinion and would affirm the trial court’s order changing venue of this case from King to Kitsap County.
Reconsideration denied January 25, 1983.
Review granted by Supreme Court June 17, 1983.
"Venue of actions by or against counties. All actions against any county may be commenced in the superior court of such county, or of the adjoining county, and all actions by any county shall be commenced in the superior court of the county in which the defendant resides, or in the county adjoining the county by which such action is commenced." (Italics mine.) RCW 36.01.050.
The fact that this statute employs the words "may” and "shall" both, conclusively demonstrates that the Legislature was not only well aware of, but also intended that there be, a distinction between the two words. See Black Ball Freight Serv. v. United States, 266 F. Supp. 287, 289 (W.D. Wash. 1967); Seeber v. Public Disclosure Comm'n, 96 Wn.2d 135, 139 , 634 P.2d 303 (1981).
"Grounds authorizing change of venue. The court may, on motion, in the following cases, change the place of trial when it appears by affidavit, or other satisfactory proof:
"(3) That the convenience of witnesses or the ends of justice would be forwarded by the change;..." (Italics mine.) RCW 4.12.030(3).
Russell v. Marenakos Logging Co., 61 Wn.2d 761, 765 , 380 P.2d 744 (1963); Hauge v. Corvin, 23 Wn. App. 913, 915 , 599 P.2d 23 (1979). As held in Baker v. Hilton, 64 Wn.2d 964, 965-66 , 395 P.2d 486 (1964):
Where the relevant statute provides several places where venue may be proper, the choice lies with the plaintiff in the first instance. When the defendant seeks to change the venue, the matter lies within the discretion of the trial court and is reviewable only for an abuse of that discretion. Concerning proper venue, an "abuse of judicial discretion is not shown unless the discretion has been exercised upon grounds, or to an extent, clearly untenable or manifestly unreasonable."
And further:
The legislature has placed the matter of a change of venue within the sound discretion of the trial court, and, in the absence of clear abuse of that discretion, this court will not interfere with the handling of trial matters.
Baker v. Hilton, supra at 966 .
Aetna Life Ins. Co. v. Washington Life & Disab. Ins. Guar. Ass'n, 83 Wn.2d 523, 528 , 520 P.2d 162 (1974).