State ex rel. Bond v. State

• Decision Date: 01 February 1962
• Docket Number: No. 35560,35560
• Citation: 368 P.2d 676,59 Wn.2d 493
• Court: Washington Supreme Court
• Parties: The STATE of Washington on the Relation of Robert H. BOND, Appellant, v. The STATE of Washington, Ralph Peoples, State Safety Supervisor, and Jerry Hagan, Director, Labor and Industries, Respondents.

Page 493

59 Wn.2d 493

368 P.2d 676

The STATE of Washington on the Relation of Robert H. BOND, Appellant, v. The STATE of Washington, Ralph Peoples, State Safety Supervisor, and Jerry Hagan, Director, Labor and Industries, Respondents.

No. 35560.

Supreme Court of Washington, En Banc.

Feb. 1, 1962.

Corbett, Siderius & Lonergan, Seattle, for appellant.

John J. O'Connell, Atty. Gen., S. Fred Bruhn, Asst. Atty. Gen., for respondents.

HILL, Judge.

QUAERE: Does an action for restoration to position by a state employee--entitled to a veteran's preference in public employment (RCW 73.16.010), who was discharged without cause and replaced by a nonveteran--come within the two-year 'catch-all' (RCW 4.16.130) or the threeyear (RCW 4.16.080(2)) statute of limitations?

ANSWER: The three-year statute.

BACKGROUND DISCUSSION: A veteran's preference in public employment was unknown at common law. It first came into our state statutes for the benefit of 'honorably discharged union soldiers and sailors' (Laws of 1895, chapter 84, p. 166), and was extended to give similar rights to honorably discharged soldiers and sailors of the Spanish-American War and the Philippine Insurrection (Laws of 1915, chapter 129, p. 356). No such delay was encountered after World War I in extending the preference to honorably discharged soldiers and sailors 'of the war with Germany and her allies'; and, at that time, 'widows' of veterans became entitled to the same preference (Laws of 1919, chapter 26, p. 54). While World War II was still in progress the act was again extended to cover honorably discharged soldiers and sailors (and their widows) 'of the existing war with Germany, Italy and Japan and their allies.' (Laws of 1943, chapter 141, p. 436).

Under none of these acts did the veteran have any means of enforcing the preference (State ex rel. Breslin v. Todd (1941), 8 Wash.2d 482, 113 P.2d 315), although an official who failed to comply with the act 'in letter and in spirit' was, and is, guilty of a misdemeanor punishable by a fine of not less than five dollars and not more than twenty-five dollars (RCW 73.16.020).

By Laws of 1951, chapter 29, p. 59, all reference to specific wars was deleted, and the statute was changed to read:

'In every public department, and upon all public works of the state, and of any county thereof, honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon shall have been awarded and their widows, shall be preferred for appointment and employment. Age, loss of limb, or other physical impairment, which does not in fact incapacitate, shall not be demed to disqualify them, provided they possess the capacity necessary to discharge the duties of the position involved. [1951 c 29 § 1; 1943 c 141 § 1; 1919 c 26 § 1; 1915 c 129 § 1; 1895 c 84 § 1; Rem.Supp.1943 § 10753.]' RCW 73.16.010.

'Any veteran entitled to the benefits of RCW 73.16.010 may enforce his rights hereunder by civil action in the courts. [1951 c 29 § 2.]' RCW 73.16.015.

Two cases, under this statute, have reached this court: State ex rel. Ford v. King County (1955), 47 Wash.2d 911, 290 P.2d 465; and State ex rel. Day v. King County (1957), 50 Wash.2d 427, 312 P.2d 637. Neither of these cases raised the issue now before us as to the applicable statute of limitations.

The three-year statute (RCW 4.16.080(2)), relied upon by the relator-appellant, is applicable to: 'An action * * * for any other injury to the person or rights of another not hereinafter enumerated.'

The respondents urge that this is an action on a liability created by a statute, and that our cases hold that the two-year 'catch-all' statute is the only one applicable to an action of this sort. It provides that:

'An action for relief not hereinbefore provided for, shall be commenced within two years after the cause of action shall have accrued.' RCW 4.16.130.

The trial court was of the opinion that the latter was the applicable statute and dismissed the action by which the relator sought restoration to a osition as safety inspector for the department of labor and industries, from which he had been discharged almost thirty-four months before, the position having been filled by a nonveteran.

REASONS FOR ANSWER TO QUAERE: We must, at the outset, make it clear that no question is raised as to the application of either of these statutes of limitation to a mandamus action.

The veteran brings this action in mandamus to compel his reinstatement in the position from which he claims to have been removed in violation of his preference rights. We have recognized that mandamus is a proper remedy. State ex rel. Ford v. King County, supra; State ex rel. Day v. King County, supra; Luellen v. Aberdeen (1944), 20 Wash.2d 594, 148 P.2d 849.

In this state, mandamus is one of the forms of procedure provided by statute (RCW 7.16.150 through 7.16.280) for the enforcement of rights and the redress of wrongs, and 'has in it all the elements of a civil action.' Luellen v. Aberdeen, supra; Washington Security Co. v. State (1941), 9 Wash.2d 197, 114 P.2d 965, 135 A.L.R. 1330; State ex rel. Hunt v. Okanogan County (1929), 153 Wash. 399, 280 P. 31, 67 A.L.R. 668; State ex rel. Brown v. McQuade (1905), 36 Wash. 579, 79 P. 207; State ex rel. Race v. Cranney (1902), 30 Wash. 594, 71 P. 50.

We are not, at the moment, concerned with any question of a monetary recovery for back pay or liability therefor, but with the enforcement, by reinstatement, of a preferential right to employment granted by statute to the relator.

The respondents disregarded that right when they discharged the relator without cause and replaced him with a nonveteran. When a legally protected interest or right is invaded or violated such action constitutes an injury thereto within the purview of RCW 4.16.080(2), the three-year statute of limitations hereinbefore quoted. Luellen v. Aberdeen, supra.

The relator's rights under the statute, in this case, are comparable to the statutory right of action given for violation of civil rights by a Federal statute. The Kansas statute of limitations held to be applicable, in such a case, is that section which relates to an "action for injury to the rights of another, not arising on contract." Wilson v. Hinman (C.A.Kan.1949), 172 F.2d 914, 915.

The respondents' discussion of an action for a liability created by a statute is beside the point. The 'catch-all' statute of limitations, relied upon by respondents, applies by its terms, only to actions for relief 'not hereinbefore provided for.' If, as we hold, this mandamus action by a veteran is for relief to an injury to his right of preferential employment, the 'catch-all' statute has no application.

ANALYSIS OF RESPONDENTS' AUTHORITIES: Since our answer to the Quaere involves a setting aside of the trial court's order of dismissal, and since the trial court relied upon the authorities cited by the respondents, we will make clear why we deem them inapplicable to the present situation.

All of the discussion about 'a liability created by a statute,' is a red herring. We do not have a statute of limitations, as many states do, specifically applicable to an action for a liability created by a statute.

The phrase 'liability created by a statute' came into our cases dealing with statute-of-limitation questions by reason of the contention, made in numerous cases, that a cause of action predicated on a statute came under a three-year statute of limitations applicable to actions on 'a contract or liability, express or implied, which is not in writing.' (Now, RCW 4.16.080(3))

Our cases quite properly held that the word 'liability,' in that statute, referred neither to a tort liability nor to a liability created by a statute, but only to a contractual liability. Northern Grain & Warehouse Co. v. Holst (1917), 95 Wash. 312, 165 P. 775; Rebinson v. Lewis County (1927), 141 Wash. 642, 252 P. 143, 256 P. 503; Constable v. Duke (1927), 144 Wash. 263, 257 P. 637; Noble v. Martin (1937), 191 Wash. 39, 70 P.2d 1064; Cannon v. Miller (1945), 22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530; and Heitfeld v. Benevolent and Protective Order of Keglers (1950), 36 Wash.2d 685, 220 P.2d 655, 18 A.L.R.2d 983. See, however, Pierce County v. Newman (1946), 26 Wash.2d, 63, 173 P.2d 127.

These (except Pierce County v. Newman, supra) are cases relied upon by the respondents, and so far as our present problem is concerned, they hold no more than that that particular section of the statute of limitations (RCW 4.16.080(3)) applied only to contractual liabilities and not to liabilities created by a statute.

That does not mean, and here is the fallacy of the respondents' position, that, therefore, an action on a liability created by a statute falls within the two-year 'catch-all' statute of limitations. RCW 4.16.130. It may or it may not. We reiterate that there is no such category as 'an action on a liability created by a statute' in our limitation statutes. Such an action does not fall within the 'catch-all' statute unless there is no other statute of limitations applicable thereto, i. e., it is 'an action for relief not hereinbefore provided for.'

Examples of actions which are created by statute, to which the 'catch-all' statute of limitations has never been applied, are Wrongful Death Act and Factory Act cases: Cook v. Clallam County (1947), 27 Wash.2d 793, 180 P.2d 573; Calhoun v. Washington Veneer Co. (1932), 170 Wash. 152, 15 P.2d 943; Dodson v. Continental Can Co. (1930), 159 Wash. 589, 294 P. 265; Robinson v. Baltimore & S. M. & R. Co. (1901), 26 Wash. 484, 67 P. 274.

The fallacy of the respondents' position is further made clear by their own cases, in which, while the ultimate conclusion is that the 'catch-all' statute is applicable in each case, the court did not arrive at that conclusion simply because it was an action on a liability created by statute, but because no...