State ex rel. Breslin v. Todd

• Decision Date: 28 April 1941
• Docket Number: 28316.
• Citation: 113 P.2d 315,8 Wn.2d 482
• Parties: STATE ex rel. BRESLIN v. TODD, Judge of Superior Court, et al.
• Court: Washington Supreme Court

113 P.2d 315

8 Wn.2d 482

STATE ex rel. BRESLIN v. TODD, Judge of Superior Court, et al.

No. 28316.

Supreme Court of Washington

April 28, 1941

Mandamus proceeding by the State, on the relation of W. P. Breslin, to compel Jack Taylor and others, as county commissioners of King County, to reinstate relator as a grader operator, and to recover pay from the time relator was discharged. To review a judgment of dismissal, relator brings certiorari opposed by Hugh C. Todd, judge of the superior court for King County, and the county commissioners.

Affirmed.

STEINERT SIMPSON, BEALS, and DRIVER, JJ., dissenting.

W. C Hinman, of Seattle, for relator.

B. Gray Warner and F. M. Reischling, both of Seattle, for respondents.

BLAKE, Justice.

This case comes up on certiorari to review a judgment of dismissal after granting a motion to quash an application for a writ of mandamus. A show cause order had been issued on petition of the relator showing that he is a veteran of the World War; that respondents Taylor, Smith, and Fluent are county commissioners of King county; that, for about five years prior to September 20, 1940, he had been regularly employed by respondents, as such commissioners, as a grader operator at the Bow Lake gravel pit, Commissioner's District No. 2; that others who were not veterans of any War were also there employed in the same capacity; that, on September 20, 1940, he was discharged and some of such others who were not veterans of any War were continued in employment on the same work; that he had made demand upon the respondent commissioners for reinstatement, which demand had been refused. He prayed for reinstatement and pay from the time he had been discharged.

Relator's application is grounded upon chapter LXXXIV, Laws of 1895, p. 166 (Rem. & Bal. Code, §§ 8925, 8926), as amended by chapter 26, Laws of 1919, p. 54 (Rem.Rev.Stat. §§ 10753, 10754), which provides:

§ 10753. 'In every public department, and upon all public works of the state of Washington, and of any county thereof, honorably discharged union soldiers and sailors, and their widows, and honorably discharged soldiers and sailors, and their widows, of the Spanish-American war and the Philippine insurrection, and of the war with Germany and her allies, 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 deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved.'

§ 10754. 'And all officials and other persons having power to appoint to or employment in the public service set forth in the last preceding section, are charged with a faithful compliance with its terms, both in letter and in spirit, and a failure therein shall be a misdemeanor, and on conviction shall be punished by a fine of not less than five dollars nor more than twenty-five dollars.' (Italics ours.)

Treating the motion to quash as a demurrer, the court granted it on the ground that the petition for the writ did not state facts sufficient to constitute a cause of action.

The relator takes the position that the first section of the act as amended (Rem.Rev.Stat. § 10753) is mandatory, and, that being so, he is entitled to preference as a grader operator over any nonveteran as long as there is any work for any one in that capacity. In taking that position, however, relator fails to take into account section two of the act. Rem.Rev.Stat. § 10754. The first section creates a right unknown to common law; the second section prescribes a penalty for its denial.

It is a general rule that, when a statute gives a new right and prescribes a particular remedy for its enforcement, such remedy is exclusive; though it is otherwise when a statute gives a right without prescribing the remedy. Cooley on Torts, 4th Ed., 351, § 475(3); Fire Engine Co. v. Town of Mt. Vernon, 9 Wash. 142, 37 P. 287, 38 P. 80; Horrell v. California, etc., Ass'n, 40 Wash. 531, 82 P. 889; Yakima Lodge No. 53, K. of P. v. Schneider, 173 Wash. 639, 24 P.2d 103; Globe Newspaper Co. v. Walker, 210 U.S. 356, 28 S.Ct. 726, 52 L.Ed. 1096; Wiley v. Yale, 1 Metc., Mass., 553; Almy v. Harris, 5 Johns., N.Y., 175; Hartford v. Talcott, 48 Conn. 525, 40 Am.Rep. 189; Woollcott v. Shubert, 169 A.D. 194, 154 N.Y.S. 643; Flynn v. Canton Co. of Baltimore, 40 Md. 312, 17 Am.Rep. 603; Town of Brattleboro v. Wait, 44 Vt. 459; Reed v. Omnibus R. R. Co., 33 Cal. 212; Grant v. Slater Mill & Power Co., 14 R.I. 380; Heeney v. Sprague, 11 R.I. 456, 23 Am.Rep. 502; Nash v. Inhabitants of Sorrento, 118 Me. 224, 107 A. 32; Jefferson County Farm Bureau v. Sherman, 208 Iowa 614, 226 N.W. 182; Johnson v. Brigham Co., 126 Me. 108, 136 A. 456; Employers' Liability Assurance Corp. v. Young County Lumber Co., 122 Tex. 647, 64 S.W.2d 339.

Judge Cooley, at page 352, § 475(3), says: 'So if performance of the duty is enjoined under penalty, the recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured.' However, as indicated in some of the foregoing decisions and by Judge Cooley, the rule is not necessarily applicable when the statute creates a new right on the one hand and a duty on the other and fixes merely a penalty for violation of the duty. Cooley on Torts, 4th Ed., 352, 353, § 475(3). David v. Britannic Merthyr Coal Co., [1909] 2 K.B. 146; Willy v. Mulledy, 78 N.Y. 310, 34 Am.Rep. 536.

In some instances, as in case of a statute which provides no remedy or one which is declaratory of a common-law right, the law will supply a remedy. But to warrant the court in supplying a remedy other than the enforcement of the penalty, it must be clear that such was the legislative intent. Cooley on Torts, 4th Ed. 353.

Now, construing our statute in the light of the rule and its exception and in the light of decisions of courts of other states in which soldier preference statutes have been under consideration, we think that there can be no doubt that the legislature intended the penal provision of the second section to be an exclusive remedy. Granting that the preference given by the first section is mandatory, it is apparent that its denial was not intended to establish a liability against the municipality, for the second section imposes the duty upon ' all officials * * * having power to appoint * * *' and charges them with ' a faithful compliance * * * both in letter and in spirit * * *.' They personally, not the municipality, are subject to the penalty.

We are of the view that mandamus does not lie to enforce the preference given by Rem.Rev.Stat. § 10753. To this view, the following decisions construing soldier preference statutes lend some support: People ex rel. Hansen v. Collins, 351 Ill. 551, 184 N.E. 641; Owen v. Detroit, 259 Mich. 176, 242 N.W. 878; Rounds v. Des Moines, 213 Iowa 52, 238 N.W. 428.

The following decisions are of particular interest because the statutes there under consideration specifically accorded the soldier a right of hearing Before discharge and a further remedy by certiorari or mandamus: State ex rel. Castel v. Village of Chisholm, 173 Minn. 485, 217 N.W. 681; Douglas v. Des Moines, 206 Iowa 144, 220 N.W. 72. The statutes there considered not only created the preference, but also provided a remedy personal to the soldier which, upon its denial, he could invoke. Ours creates the preference, but provides for a penalty only. We think it clear that the legislature intended this to be the only remedy the soldier could invoke even though it is not payable to him.

Judgment affirmed.

ROBINSON, C.J., and MAIN, and MILLARD, JJ., concur.

JEFFERS, J., concurs in the result.

STEINERT Justice (dissenting).

This cause is Before us wholly upon the petition of the relator suing on behalf of himself, two other named individuals, and and others similarly situated. The petition makes the following allegations which, for the purpose of this case, must be taken as true: Relator is a veteran of the World War. For about five years prior to September 20, 1940, he was regularly employed by respondent county commissioners as a grader operator, at the Bow Lake gravel pit in King county, and was then receiving a salary of $165 per month. During all of that time he was fully qualified to, and did, perform the duties assigned to him as such operator. At the same time and place, other individuals who were not veterans were employed to perform, and did perform, the same kind of duties as those performed by relator. On September 20, 1940, the commissioners, without notice and without cause, discharged relator but retained in their employment other persons who were not veterans and who continued to perform the same duties that relator had been performing. The ground assigned by the commissioners for discharging him was lack of funds, although they still retained nonveterans for employment in the same capacity. Relator demanded to be reinstated and reemployed by reason of the preference in employment afforded by Rem.Rev.Stat. § 10753, quoted in the majority opinion. The demand was refused. Similar allegations were made in the petition as to the two other named individuals, except that they were alleged to have been employed as truck drivers.

Relator's contention here is that the statute above mentioned is mandatory, and guarantees him a preference over nonveterans so long as there is no difference in qualifications and there is still work for anyone in that capacity. Respondents' contention is that the statute merely gives the veteran the first right of position, but does not guarantee him retention in employment, even though nonveterans be retained in the same line of work after the veteran is discharged. R...