Rosling v. Seattle Building & Construction Trades Council

385 P.2d 29, 62 Wash. 2d 905, 1963 Wash. LEXIS 407, 54 L.R.R.M. (BNA) 2375

• Court: Washington Supreme Court
• Decided: September 5, 1963
• Docket: 36725
• Status: Published

Opinions

Ryan, J.

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The appellants, who were the defendants in the cause before the superior court, appeal from a judgment dated April 20, 1962, whereby they were permanently enjoined from picketing “. . . plaintiffs’ establishment at 615-27 Queen Anne Avenue, Seattle, Washington . . ., ” and by which respondents were awarded damages in the sum of $100.

The respondents, under the name Jack Behar Construction Company, were engaged in doing certain construction work to an apartment building which they leased and operated at the above-stated address. They had hired approximately 25 building trades employees, none of whom was a member of appellant Seattle Building and Construction Trades Council, or any of its affiliates. These employees were paid wages substantially below the prevailing union scales in the Seattle area, and received no fringe benefits. However, there was no dispute between them and the respondents, relative to wages or other benefits.

After first having advised respondents of their intentions, by letter dated March 20, 1962, the appellants commenced picketing respondents’ premises, on or about March 22, 1962. The picketing was peaceful and no attempt was made to secure a collective bargaining agreement, nor to compel union affiliation by the employees. The work was continued, but certain construction suppliers and their employees ceased delivery of materials to the job, and commercial tenants of the respondents complained of the picketing because of damage to their business. A temporary injunction had been issued April 13, 1962.

This case was submitted to the trial court on an agreed statement of facts. One of the stipulated facts was as follows:

“14. Plaintiffs have commitments under which the building should be completed before the end of April, 1962.”

This fact, which was adopted by the trial court in its findings, is unchallenged on this appeal, and appears to follow and be based upon the allegation in respondents’ complaint that:

“It is imperative that plaintiffs complete the construction and repair work now in progress on said building as soon as possible and before the end of April, 1962.”

The injunction issued by the trial court is narrow in scope and restricted to the specific premises named. The stipulated facts indicate that it was necessary to complete the construction project before the end of April, 1962, which is now approximately one year past. Although the record does not disclose the present status of the construction work, it does suggest, and it may well be reasonably assumed, that it has now been completed, and that there is no remaining controversy between the parties.

This poses a question which was not before the trial court, because it did not then exist, nor was it raised in the briefs, and at best was only casually and indirectly referred to by counsel in argument before this court. However, we must now consider it, because

“We have repeatedly held that we will not review a proceeding or cause which has become moot. . . . ” State ex rel. Jones v. Byers, 24 Wn. (2d) 730, 733, 167 P. (2d) 464 (1946).

In State ex rel. Johnston v. Tommy Burns, Inc., 188 Wash. 263, 264, 62 P. (2d) 47 (1936), we said:

“Although respondents also urge us to decide this question upon the merits, we decline to do so. The question is purely academic, and this court is not required to pass upon such questions. Courts will not knowingly determine moot questions, however much both parties desire such determination. Holly-Mason Hardware Co. v. Schnatterly, 111 Wash. 29, 189 Pac. 545; State ex rel. Burnham v. Superior Court, 180 Wash. 519, 41 P. (2d) 155. See, also, Bellingham American Pub. Co. v. Bellingham Pub. Co., 145 Wash. 25, 258 Pac. 836.”

In State v. International Typographical Union, 57 Wn. (2d) 151, 356 P. (2d) 6 (1960), an action arising out of a jurisdictional dispute between two unions, we reiterated the rule that we will not take jurisdiction to decide moot cases, citing Hansen v. West Coast Wholesale Drug Co., 47 Wn. (2d) 825, 827, 289 P. (2d) 718 (1955), wherein we said that:

“. . . A moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights. . . . This court refuses to take jurisdiction of moot cases.”

See, also, State ex rel. Chapman v. Superior Court, 15 Wn. (2d) 637, 131 P. (2d) 958 (1942); National School Studios v. Superior School Photo Ser., 40 Wn. (2d) 263, 242 P. (2d) 756 (1952); Friendly Finance Corp. v. Koster, 45 Wn. (2d) 374, 274 P. (2d) 586 (1954); and Brehm v. Retail Food & Drug Clerks Union No. 1105, 4 Wn. (2d) 98, 102 P. (2d) 685 (1940).

If the construction work on the particular project here involved is now completed, as it would seem it is, neither party could gain any benefit by our either affirming or reversing the judgment of the trial court. We are unable, however, to determine conclusively from the present state of the record, whether the construction work has been completed or not. In view of this fact, we must remand the case to the trial court for entry of further findings of fact relating to this question, with directions to dismiss the appeal, if it is found that the construction is completed.

The case is remanded to the trial court, which is directed to proceed in accordance with the instructions herein contained.

Ott, C. J., Donworth, and Hamilton, JJ., concur.

Judge Ryan is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.