noting that failure to give notice constitutes arbitrary and capricious conduct
How later courts described this case
- noting that failure to give notice constitutes arbitrary and capricious conduct
- as “an organ of government,” WSDOT comprises the only agent of government charged by law with carrying out the state’s highway program and is vested with the authority to build and maintain highways
- construction of highway near hospital not subject to abatement as nuisance, where construction authorized by law
- statutory interpretation of authority to plan site of million-dollar highway construction project
Written by the judges who cited it.
The opinion
Donworth, J.
(concurring in part and dissenting in part) —I concur in Judge Hale’s opinion in so far as it holds that the trial court did not have jurisdiction of the subject matter of this action, because that subject matter is a right of action created by the legislature, which has decreed that such an action may be brought only in the Superior Court for Thurston County.
However, being of the opinion that the trial court had no jurisdiction to try the case, I think that this court should simply dismiss the action. The only authority cited for the gratuitous rendering of an opinion on the merits, is National Elec. Contractors Ass’n v. Seattle School Dist. No. 1, ante p. 14, 400 P.2d 778 (1965). That was not a case in which the trial court lacked jurisdiction of the subject matter, or in which we lacked jurisdiction to decide the appeal. It was rather a case which had been rendered moot during the period of litigation, and some authority, though slight, could be found for rendering an advisory opinion in such a case.
But the rule governing the proper behavior of this court in á case such as this is clear and undisputed. In Fortier v. Fortier, 23 Wn.2d 748 , 162 P.2d 438 (1945), we said that, where the trial court did not have jurisdiction to pass upon the merits of the controversy presented to it, this court does not have jurisdiction to consider the merits on appeal. Its only power is to order the action dismissed.
Lack of jurisdiction over the subject matter renders the trial court powerless to pass on the merits of a controversy brought before it. State v. Northwest Magnesite Co., 28 Wn.2d 1 , 182 P.2d 643 (1947). In the case of In re Elvigen’s Estate, 191 Wash. 614 , 71 P.2d. 672 (1937), we quoted with approval the following from 1 Freeman, Judgments 674, § 337 (5th ed.):
*410 “Jurisdiction-of the subject matter is essential in every case; a condition precedent, in a way, to the acquisition of authority over, the parties. A judgment is a mere nullity if pronounced by a court which undertakes to exercise authority over matters wholly outside the powers conferred upon it by law.”
Sub silentio, Judge Hale’s opinion has overruled Fortier v. Fortier, supra, and the other reputable authorities cited herein.
While a litigant may waive or be estopped to assert a want of jurisdiction over his person, he may not do so where there is no jurisdiction over the subject matter. In re Puget Sound Pilots Ass’n, 63 Wn.2d 142 , 385 P.2d 711 (1963).
And, in 14 Am. Jur. Courts 367, § 167, it is stated succinctly:
A universal principle as old as the law is that the proceedings of a court without jurisdiction are a nullity and its judgment without effect either on the person or property. In other words, a court without jurisdiction over a case cannot enter judgment in favor of either party. It can only dismiss the case for want of jurisdiction.
While Judge Hale’s opinion does not hold that the state waived its objection to the jurisdiction of the trial court by failing to apply for a writ of prohibition or certiorari when its motion to dismiss was denied, it seems to attach some significance to this fact and appears to assume that it justifies the rendering of an opinion on the merits. The contention that there was a waiver is without merit. The objection that the court does not have jurisdiction over the subject matter cannot be waived.
The objection that the court has no jurisdiction may be raised at any time. Rule on Appeal 43, RCW vol. O. It may and should be raised by the court on its own motion if it is not raised by the parties. Dux v. Hostetter, 37 Wn.2d 550 , 225 P.2d 210 (1950); Ullom v. Renton, 5 Wn.2d 319 , 105 P.2d 69 (1940).
As I view the law, Judge Hale’s opinion should have ended at the point where it was determined that the trial *411 court lacked jurisdiction of the subject matter of the action. Since this much of the decision necessitated the further decision that this court lacks jurisdiction to decide the merits of the appeal, all the remainder of the opinion is, in my view, a nullity.
I, therefore, concur with Judge Hale that the trial court lacked jurisdiction of the subject matter,, but dissent from the remainder of the opinion which passes on the merits.
September 14, 1965. Petition for rehearing denied.