The statute providing for the granting of a writ of certiorari is Rem. Rev. Stat., § 1002 [P.P.C. § 15-3].
"A writ of review shall be granted by any court, except a police or justice court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common *Page 706 law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law."
In Puyallup v. Lacey, 43 Wash. 110, 86 P. 215, decided July 17, 1906, the city of Puyallup had passed an ordinance providing for the institution of an action to condemn a right of way. Pursuant to the ordinance, a petition was filed in superior court, where a demurrer to the petition was sustained. The city elected to stand on its petition, and an appeal to this court was taken from an order of dismissal. In denying a motion to dismiss the appeal, we held:
"At the hearing in this court the respondent moved to dismiss the appeal for the reason that the order is not appealable and this court has no jurisdiction. This contention is based onWestern American Co. v. St. Ann Co., 22 Wash. 158, 60 P. 158, and numerous other cases in this court following that decision. The appeal in Western American Co. v. St. Ann Co. was prosecuted under Bal. Code, § 5645, which provides as follows:
"`Either party may appeal from the judgment for damages entered in the superior court to the supreme court of the state within thirty days after the entry of judgment as aforesaid, and suchappeal shall bring before the supreme court the propriety andjustness of the amount of damages in respect to the parties tothe appeal;'
and the court held that on such appeal it could only review questions affecting the propriety or justness of the damages claimed or allowed. The appeal in this case is prosecuted under the act of March 3, 1905 (Laws 1905, p. 84), which especially applies to cities. Section 50 of that act provides as follows:
"`Except as herein otherwise provided, the practice and procedure under this act in the superior court and in relation to the taking of appeals and prosecution thereof, shall be the sameas in other civil actions, but all appeals must be taken within thirty days from the date of rendition of the judgment appealed from.'
It will thus be seen that the act of 1905 does not restrict the right of review to the question of damages alone, but such right is regulated and controlled by subd. 1 of § 6500, Bal. Code, which provides that, . . .
The motion to dismiss the appeal is therefore denied." *Page 707
On April 23, 1907, State ex rel. Northern Pac. R. Co. v.Superior Court, 46 Wash. 303, 89 P. 879, was decided. An order of public use had been entered October 12, 1906, to the city of Georgetown in connection with the condemnation of property of two railroad companies by the city. The railroad companies applied to this court for a writ of certiorari to review the adjudication of public use. The city moved to quash the writ on the grounds that it was improvidently issued, as the railroad companies had plain, speedy, and adequate remedy by appeal. We held:
"The motion to quash must be granted. In this state the writ of review lies to review the judgment of an inferior court or tribunal only where there is no appeal, or in the judgment of the court no plain, speedy and adequate remedy at law. Bal. Code, § 5741 (P.C. § 1396). The act of the legislature relating to condemnation proceedings for necessary public improvements by cities of the third class to which the city of Georgetown belongs, provides that the practice and procedure under the act in relation to taking appeals and the prosecution thereof shall be the same as in other civil actions. Laws 1905, p. 84, § 50. InPuyallup v. Lacey, 43 Wash. 110, 86 P. 215, we held that this language made the general statutes relating to appeals applicable to such proceedings, and that under these statutes an appeal would lie from the order adjudging that the contemplated use for which the property is sought to be taken is really a public use, as well as from the order fixing the sum to be paid for the property taken or damaged.
"That the remedy by appeal is adequate, within the meaning of the statute, there can be but little dispute, as all questions that can be brought before the court by a writ of review can be brought before it by an appeal. Nor should the writ be granted because the remedy by appeal is less speedy than the remedy by writ of review. The length of time it will take to prosecute an appeal is not a test of the efficiency of the remedy. It must further appear that the delay incident to the appeal will work a deprivation of some substantial right which will prevent the enjoyment of the fruits of the appeal, before it can be said that the remedy is inefficient.
"The motion to quash is granted, and the application dismissed." *Page 708
In 1907 the legislature adopted chapter 153, which was a comprehensive act enabling cities to exercise the right of eminent domain. That act has been substantially continued through to this day. Section 16 of the act can be found in Rem. Rev. Stat., § 9230 [P.P.C. § 26-31]. Section 51 of the act is now Rem. Rev. Stat., § 9276 [P.P.C. § 26-123].
Tacoma v. Nisqually Power Co., 54 Wash. 292, 103 P. 49, was a condemnation proceeding by the city of Tacoma, instituted under chapter 153 of the Laws of 1907. An appeal was prosecuted from an order of public use, and the city interposed a motion to dismiss the appeal. We held:
"Section 51 of the act under which the proceedings were instituted provides in part as follows:
"`Except as herein otherwise provided, the practice and procedure under this act in the superior court and in relation to the taking of appeals and prosecution thereof, shall be the same as in other civil actions, but all appeals must be taken within thirty days from the date of rendition of the judgment appealed from.' Laws 1907, p. 316, § 51.
"In the case of Puyallup v. Lacey, 43 Wash. 110, 86 P. 215, we held that an order adjudicating the question of public use and public necessity was reviewable on appeal under a similar statutory provision, and both parties to the present controversy concede that that rule is applicable here. They only differ as to the method of review, the appellant contending that the order itself is appealable, while the respondent contends that a review can only be had on appeal from the final judgment in the cause, as already stated. The language of this court in State ex rel.Northern Pac. R. Co. v. Superior Court, 46 Wash. 303,89 P. 879, gives color to the appellant's contention, for there the court said:
"`In Puyallup v. Lacey, 43 Wash. 110, 86 P. 215, we held that this language made the general statutes relating to appeals applicable to such proceedings, and that under these statutes an appeal would lie from the order adjudging that the contemplated use for which the property is sought to be taken is really a public use, as well as from the order fixing the sum to be paid for the property taken or damaged.'
"From this language it might be inferred that the order adjudicating the question of public use is itself appealable, *Page 709 but no such question was then before the court. The court was simply considering the question whether the relator had a remedy by appeal in any form, and the statement as to what was decided in Puyallup v. Lacey is inaccurate if not misleading. The question here presented was not involved in the Puyallup case. There the appeal was prosecuted from a final judgment of dismissal, and the question of the right to appeal from an order of this kind was neither discussed nor considered. The question is therefore an open one in this court.
"Subd. 1 of Bal. Code, § 6500 (P.C. § 1048), provides that an appeal will lie,
"`From the final judgment entered in any action or proceeding, and an appeal from any such final judgment shall also bring up for review any order made in the same action or proceeding either before or after the judgment, in case the record sent up on the appeal, or any supplementary record sent up before the hearing thereof, shall show such order sufficiently for the purposes of a review thereof.'
"There is no room to controvert the proposition that the order from which the present appeal is prosecuted is an order made before judgment in the condemnation proceedings, within the purview of this statute, and that such order may be reviewed on appeal from the final judgment. It is the policy of the law, and has heretofore been the policy of this court, to discourage a multiplicity of appeals and to deny an appeal from all orders that may be reviewed on appeal from the final judgment, unless an appeal is expressly given by statute."
Section 6500, subd. 1, of Bal. Code, referred to in the above case, is now Rem. Rev. Stat., § 1716 [P.P.C. § 5-1], subd. 1.
In a per curiam opinion in State ex rel. Bremer v. SuperiorCourt, 68 Wash. 51, 122 P. 614, in ruling on a motion to quash a writ of certiorari, we said:
"The motion to quash must be granted. We have established the rule that this writ will not issue, where an appeal will lie furnishing an adequate remedy, and that in condemnation proceedings appeal is the proper proceeding to review the adjudication of public use. The cases so holding are so recent that we do not deem it useful to discuss the question further.Puyallup v. Lacey, 43 Wash. 110, 86 P. 215; State ex rel.Northern Pac. R. Co. v. Superior *Page 710 Court, 46 Wash. 303, 89 P. 879; Tacoma v. Nisqually PowerCo., 54 Wash. 292, 103 P. 49."
These cases have never been overruled.
There is no statutory provision for appeal of any issue other than damages in eminent domain proceedings by private corporations, the state, counties, or municipal corporations other than cities and towns. In Seattle, P.A. L.C.R. v. Land,81 Wash. 206, 142 P. 680, we held:
"The proceedings for condemnation by public service corporations are clearly defined by statute and well settled in practice. Upon petition and notice, a hearing is first had upon the questions of public use and necessity. This hearing necessarily involves the corporate capacity and the right to maintain the proceedings on the part of the petitioner as a public service corporation, the purpose for which the land is sought and its necessity for that purpose. Rem. Bal. Code, § 925 (P.C. 171 § 176). These are questions for the court. From its decision thereon there is no appeal. Western American Co. v. St.Ann. Co., 22 Wash. 158, 60 P. 158. A review of these questions can only be obtained by certiorari. North Coast R. Co. v.Gentry, 58 Wash. 80, 107 P. 1059; Whatcom County v.Yellowkanim, 48 Wash. 90, 92 P. 892. The only question reviewable on appeal is `the propriety and justness of the amount of damages.' Rem. Bal. Code, § 931 (P.C. 171 § 180a);Fruitland Irr. Co. v. Smith, 54 Wash. 185, 102 P. 1031;State ex rel. Port Townsend Southern R. Co. v. Superior Court,44 Wash. 554, 87 P. 814."
We thus have two lines of decisions in this state regarding condemnation proceedings. As to private corporations, the state, counties, and municipal corporations other than cities and towns, there being no right of appeal of any question other than the amount of damages, it necessarily follows that any question of error in the issuance of an order of public use and necessity can only be reviewed by certiorari. On the other hand, as to cities and towns, the right of appeal is granted by statute, and such appeals are not permitted to be brought here piecemeal, but only from the final judgment. As to this class of cases, there is no necessity for a writ of certiorari to determine whether or not there has been any error in the issuance of an order *Page 711 of public use and necessity, because all questions raised during any stage of the proceedings can be determined upon final appeal.
The public utility districts act provides that
". . . such right of eminent domain shall be exercised and instituted pursuant to resolution of the Commission and conducted in the same manner and by the same procedure as is or may be provided by law for the exercise of the power of eminent domain by incorporated cities and towns of the State of Washington in the acquisition of like property and property rights. . . ." Rem. Supp. 1945, § 11610(b).
It can be safely assumed that the proponents of public power, when they submitted the initiative to the voters in 1930, deliberately placed this provision in the act, having in mind the statutory provisions relating to appeals, as interpreted by this court in 1906 and 1907. This is the first time since 1907 that the Puyallup, Northern Pac. R. Co., Nisqually, and Bremer cases have ever been questioned. In the Willapa Electric Co. and Washington Water Power Co. cases the question of the right to a writ of certiorari was not raised nor considered by this court.
It is contended that State ex rel. Washington Public ServiceCo. v. Superior Court, 86 Wash. 155, 149 P. 652, subsilentio overruled the above cases. In that case, the city of Olympia was condemning the plant and facilities of the Washington Public Service Company. A jury was impaneled and an award of $88,500 was given, and a judgment entered against the city for that sum, plus costs of suit. Pending an appeal, the city attempted to pay into court the amount of the judgment, plus costs, and relators applied to this court seeking to prohibit the trial court from entering a decree of appropriation pending an appeal. It was held under the provisions of Bal. Code, §§ 7783, 7784, that the city had a right to take the property pending appeal, upon the payment of damages and costs. That was the only issue in the case. No question was raised concerning the order of public use, and this court was not called upon to determine whether such a question should *Page 712 be raised by appeal or certiorari. In the course of the opinion, we made this statement: "The statutes of eminent domain further provide that the only question that can be determined on an appeal from the award by the jury is the amount of the award."
No such issue was before the court, and the foregoing statement was purely dictum. We were only considering, as we said, "an appeal from the award by the jury," and the statement was made to explain our position.
It is contended that relators are entitled to a writ of certiorari as a matter of right because, under the provisions of Rem. Rev. Stat., § 9230, the public utility district could, pending appeal, pay into court the amount of the award, plus costs, and take over the property before it had been determined by this court whether or not they had any legal right so to do (as to the order of public use and necessity), thus depriving relators of a substantial right which would prevent the enjoyment of the fruits of the appeal.
In re Rainier Avenue, 80 Wash. 688, 141 P. 1137, was an action in which the city of Seattle instituted condemnation proceedings to acquire the necessary rights and property to improve Rainier avenue. The Seattle, Renton Southern Railway Company operated a railway system along the avenue for practically the entire distance of the improvement. The improvement, as directed by the city ordinance, provided for a change in the grade of the street which would require a readjustment of the company's tracks throughout the entire distance. The company appealed from the judgment of condemnation and the judgment entered on the award of the jury. Pending appeal, the city paid the amount of the award into court and claimed the right to immediately proceed with the improvement.
On application, we suspended the operation of the judgment pending appeal, and, in discussing the provisions of the statute giving immediate possession to the city upon payment of the award, said:
"This statute undoubtedly has force in a case where specific property has been condemned, and no contest *Page 713 remains further than a contest over the amount of the award. But seemingly there are other and graver questions presented by this appeal, questions which go to the right of the city to enter upon or disturb the appellant's property."
I have no doubt that the appellant in any eminent domain proceeding instituted by a city or a public utility district, where the questions involved in the appeal consist not only of the amount of the award, but also the right of the city or the district to institute the proceedings, or any procedural matters therein, could apply to this court and have the matter stayed until all such questions had been determined by us. Relators have an adequate remedy by appeal. They are not entitled to a writ of certiorari as a matter of right. If they feel that their remedy is not adequate, they should apply to the legislature for relief, rather than to ask us to overrule cases which have been the law of this state for forty years.
I therefore dissent.
MALLERY, C.J., JEFFERS, and ABEL, JJ., concur with SCHWELLENBACH, J. *Page 714