Wool Growers v. Simcoe Sheep Co. , 18 Wash. 2d 655 ( 1943 )

The rule that, when the language of a statute is free from ambiguity, there is no room for construction, was stressed inSpokane v. State, 198 Wn. 682, 691, 89 P.2d 826.

Rem. Rev. Stat., § 368 [P.C. § 8487] (the validity of this statute is not challenged and its language is unambiguous), provides that the findings of a trial court upon the facts shall be deemed a verdict and may be set aside in the same manner and for the same reason as far as applicable. That is, the findings of the court upon the facts are deemed a verdict, and, if supported by competent evidence, must be sustained on appeal.

It is not a sound rule that, where the clear weight of the evidence is with either side, there is no substantial conflict and we should disregard the verdict of a jury or the findings of a trial court. The correct rule, once respected by appellate courts and in harmony with the rule (Rem. Rev. Stat., § 368) the legislature enjoins us to observe, is that a judgment founded on the verdict of a jury, or a judgment based on the findings of a trial court, will not be reversed where there is substantial conflict in the evidence, merely because we are of the opinion that the weight of the evidence is contrary to the verdict or to the findings. It is unnecessary to cite the many opinions in which this court has stated that a trial judge is always much better able to determine the weight and credibility of witnesses than we.

Implicit in the oath (to which a judge of this court subscribes before entering upon the duties of his office) that he will support the constitution of this state, is the judge's pledge that he will support the valid enactments (concededly Rem. Rev. Stat., § 368, is valid) of the legislature.

I cannot concur in the so-called majority opinion (I say this with all deference to those composing a majority of a quorum of this court), as such utter disregard of the rule — judicial and statutory — would not comport with my oath of office.

In Newton v. Pacific Highway Transport Co., ante p. 507, the superior courts are admonished to follow the opinions of this court. We may anticipate the apropos retort by the superior court judges that man is taught that wisdom does not manifest itself so much in precept as in example; that is, our actions and words should be all of a color. Le sermon edifie, et l'exampledetruit.

We greatly respect, as we should, the principle of staredecisis. Our record discloses that, however reluctant we are to depart from former decisions, we will not yield to them if by yielding we perpetuate error. From 1854 to 1942, inclusive, — a period of 89 years — we challenged and/or overruled not less than 602 of our opinions. From 1937 to 1942, inclusive, — a period of six years — we challenged and/or overruled 142 opinions or twenty-three and one-half per centum of the total of 602 for 89 years.

Art. IV, § 3, of our state constitution, provides that the term of judges of this court shall be six years, and that, if a vacancy occur in the office of a judge of this court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy; and the judge so elected shall hold the office for the remainder of the unexpired term. That is to say, when a judge is elected and qualifies for the term of six years he holds the office for that term of six years, unless he dies, resigns, or is removed by impeachment prior to the expiration of that term.

Art. IV, § 2, of the state constitution, provides that the legislature may increase the number of judges of the supreme court from time to time; but there is no constitutional provision under which the legislature is empowered, in the event it increases the number of judges, to make less than a majority of the judges a constitutional majority of the court; neither is there any authority for proxy voting.

Art. IV, § 8, of the state constitution, authorizes the governor in cases of extreme necessity to grant permission to judicial officers to absent themselves from the state for more than sixty consecutive days. Nevertheless, the judge is a member of this court while so absent.

Laws of 1941, chapter 201, p. 592, authorizes judges to be absent from this state for such period as they are in the active service of the United States. The statute further provides that during such leave of absence the judicial position may be filled temporarily by appointment.

By the constitution (Art. IV, § 2), the legislature is authorized to increase the number of judges from time to time, but the legislature may not make the term less or more than that prescribed by the constitution. Nor may the legislature authorize the filling temporarily by appointment of the position of supreme court judge during the period the judge is on leave of absence from the state or absent sick within this state. Each of nine judges of this court was elected, and qualified, for a term of six years. In plain understandable language, the constitution prescribes the limits of the term of office of a judge of this court, which cannot be increased during that term, nor may that term be lessened except by death, resignation, or legislative removal of the incumbent through impeachment proceedings. During his term of office, I reiterate, that judge must be counted in determining what is a constitutional majority of this court.

This cause was heard by the court En Banc, with the then nine judges sitting. Subsequently, one of those judges was granted permission under Art. IV, § 8, of the constitution, to absent himself from the state for more than sixty consecutive days. Pursuant to the provisions of Laws of 1941, chapter 201, the judicial position was filled temporarily by appointment. Another of the judges who heard the cause died in the fall of 1942. His successor was elected and duly qualified. In other words, if we concede the constitutionality of Laws of 1941, chapter 201, we have ten judges on this court.

Seven of the nine judges who heard the cause are present and may function. The judge absent from the state cannot participate, but he is none the less a member of this court and must be counted in ascertaining what is a constitutional majority of this court. The successor to the deceased judge and the temporary judge cannot function until they hear the cause. If after that hearing, there is an absence of a constitutional majority (six judges) to reverse the judgment, the same must be affirmed.

In Edwards v. Carroll, 163 Wn. 704, 300 P. 1048, we dismissed the action of Mayor Edwards for injunctive relief for the reason that Judge Fullerton was incapacitated at his home in Olympia on account of illness, and, as the eight remaining judges were divided in their opinions and there was no majority either for affirmance or for reversal, we affirmed the judgment of the trial court. See, also, Clise v. Carroll, 163 Wn. 704,300 P. 1047. A similar situation was presented in Culliton v.Chase, 173 Wn. 309, 22 P.2d 1049, 174 Wn. 363,25 P.2d 81.

If members of this court do not participate in the hearing of a cause because disqualified, absent from the state, or incapacitated by illness, a majority of the judges who participate in the hearing cannot reverse the judgment unless that is a constitutional majority, or a majority of all of the judges who are members of this court. In State ex rel. McAulayv. Reeves, 196 Wn. 1, 81 P.2d 860, two of the nine judges did not participate in the hearing of the cause. Four judges voted for the so-called majority opinion. Three judges dissented. The rule was invoked that the one upon whom is imposed the burden of sustaining the affirmative in this court cannot be granted relief in the absence of a constitutional majority on either side of the question presented. Upon rehearing, the judge who insisted that State ex rel. Chealander v. Carroll, 57 Wn. 202,106 P. 748, should be overruled, and contended that there was an absence of a constitutional majority on either side of the question presented, concurred in the opinion of the four judges who, on the rehearing, concluded that State ex rel. Chealander v. Carroll, supra, should be overruled. The first opinion, thus modified, was adopted as the opinion of the court, five judges (a then constitutional majority) voting therefor, two judges dissenting, two judges not participating.

I concur in the opinion of Simpson, C.J. The judgment should be affirmed.

ON PETITION FOR REHEARING. [En Banc. October 6, 1943.] PER CURIAM.

The respondents in the foregoing cause have timely filed a petition praying for a rehearing En Banc or, in the alternative and in case a rehearing should be denied, for a clarification of the opinion pronounced thereon on August 11, 1943, ante p. 655. The gist of the argument in support of the alternative prayer of the petition is as follows:

"We submit that anything which may be interpreted as a finding by the Supreme Court as to the status of any item of the accounting which must be had between the parties is improper. This court has decided that an accounting must be had, and the lower court should be free to hear evidence from both sides as to each and every item which will enter into that accounting, and both sides should be left free to introduce all appropriate evidence which will bear upon the individual items thereof. It must be remembered that the respondents have not put in any evidence, or at least all of their evidence, relating to some of the matters above set forth, nor as to the demand for accounting, and they should not be put in a position upon the re-trial of being foreclosed from showing all the facts relative to the above matters because the court has mentioned them in its opinion as if it were deciding them, and thereby closing the door to any futher investigation of them. . . .

"We submit that the true situation is that, it having been decided that an accounting must be had, we are right back to where we were when the case came on for trial in the lower court the first time, and respondents should be permitted to make their accounting, unhampered by any findings of fact or determinations from this court which have been made upon the partial evidence before this court for review. In other words, the lower court denied cross-complainants the right to an accounting, this court has reversed that decision and held that cross-complainants are entitled to an accounting, and now respondents should be permitted to make it without any element of res judicata entering into the making thereof."

A majority of the court is of the opinion that a rehearing should be denied but that the alternative prayer of the petition should be granted. Accordingly, it is ordered:

(1) That the petition of the respondents for a rehearing EnBanc be and is hereby denied;

(2) That the trial court be directed that, in taking the account ordered, no specific item thereof shall be treated as having been allowed or disallowed by this court, nor shall it be deemed that this court has made any final decision as to the validity of any mortgage debt involved or any final determination of the amount, if any, due or owing thereon.