Hall v. Elliott

• Decision Date: 25 November 1942
• Docket Number: 28805.
• Citation: 131 P.2d 137,15 Wn.2d 518
• Parties: HALL et al. v. ELLIOTT et al. (FARIS et al., Interveners).
• Court: Washington Supreme Court

131 P.2d 137

15 Wn.2d 518

HALL et al. v. ELLIOTT et al. (FARIS et al., Interveners).

No. 28805.

Supreme Court of Washington

November 25, 1942

Department 2.

Action by George H. Hall and another to enjoin Henry Elliott, Jr. and others, constituting the Civil Service Commission of the City of Seattle, from permitting Robert S. Faris and another who intervened, to take a promotional examination for the position of transit cashier. From a judgment granting an injunction, defendants and interveners appeal.

Reversed and remanded, with direction.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

A. C Van Soelen and John E. Sanders, both of Seattle, for appellants.

Nelson R. Anderson, of Seattle, interveners-appellants.

Kennett & Benton, of Seattle, for respondents.

DRIVER Justice.

This is an appeal from an order of the superior court enjoining the civil service commission of the city of Seattle from permitting two city employees, who intervened in the action to take a promotional examination. For convenience, we shall hereinafter refer to appellant civil service commission as the commission, and to appellant interveners as the interveners.

A recital of the facts sufficient to indicate briefly the basis of our decision follows:

In September, 1941, the commission advertised that it would hold a promotional examination for the position of transit cashier, and that such examination would be open to 'those employees of the Seattle Transportation Commission with at least one year's regular service, immediately preceding date of filing application for this examination, as Junior Transit Cashier or as Transit Operator regularly assigned and reported as Junior Transit Cashier.'

The Seattle city charter and civil service rules provide that no person shall be admitted to an examination unless he has continuously served under an appointment from an eligible list for at least one year or longer in the position from which the seeks promotion.

Respondents plaintiffs below, without question, were eligible to take the examination as each of them previously had taken a promotional examination for the position of junior cashier (also referred to as 'Junior Transit Cashier'), the next lower rank, and held that position at the time of the commencement of the instant action.

The interveners, formerly conductors in the service, had been assigned to perform the duties of junior transit cashiers and were then classified as 'junior transit cashiers, detailed from trainmen.' However, neither intervener had ever taken a promotional examination to obtain civil service status as such junior transit cashier.

Respondents' position is that, since the interveners have no civil service standing as junior transit cashiers, they are not eligible to take the examination in question.

At the threshold of the case we are confronted by the interveners' contention that, aside from the merits of the controversy, injunction was not the proper remedy. We think there is merit in this contention.

Where injunctive relief is sought to prevent a threatened injury, it must be one that is actual and material, and not merely possible, or doubtful, or contingent. 28 Am.Jur. 222, § 29.

In Bouckaert v. State Board of Land Com'rs, 84 Wash. 356, 146 P. 848, 849, this court held that injunction would not lie to restrain the state board of land commissioners from proceeding with a reappraisement and public sale of certain tide lands, because it was considered that the threatened injury to the holders of warrants against the special fund to which the proceeds of the sales of such lands had been appropriated was too remote and speculative. Judge Mount, the author of the opinion, quoted from earlier cases of this court as follows:

"Courts do not seek to protect excepting against material injury, and purely speculative and theoretical injury cannot ordinarily be redressed in the courts. Especially is this true when such redress is sought in a court of chancery by means of the exercise of the extraordinary powers of said court.' Wintermute v. Tacoma Light & Water Co., 3 Wash. 727, 29 P. 444.

' In Morse v. O'Connell, 7 Wash. 117, 34 P. 426, quoting from 1 High, Injunctions (3d Ed.), § 22, we said:

"An injunction being the 'strong arm of equity,' should never be granted, except in a clear case of irreparable injury, and with full conviction on the part of the court of its urgent necessity."

In the case at bar, the respondents are not threatened with deprivation of their rights to take the examination. Their purpose is to prevent interveners, whom they claim to be ineligible, from taking it. Under the commission's requirements, a minimum mark of seventy percent on each part of the examination, and a minimum final grade of seventy-five percent, is required, as well as passage of a satisfactory medical test Before an aspirant may be entered on the eligible register. If respondents should take the examination and both of them fail to qualify, or if they should qualify and neither of the interveners should succeed in doing so, respondents would suffer no injury...