State v. McQuade

• Decision Date: 16 January 1905
• Parties: STATE ex rel. BROWN v. McQUADE et al.
• Court: Washington Supreme Court

79 P. 207

36 Wash. 579

STATE ex rel. BROWN v. McQUADE et al.

Supreme Court of Washington

January 16, 1905

Appeal from Superior Court, King County; Frank H. Rudkin, Judge.

Mandamus by the state, on the relation of Tom Brown, against John McQuade and others, as directors of School District No. 68 of King county, and another. From a judgment for defendants relator appeals. Reversed.

Horace A. Wilson, for appellant.

Fred H Peterson, for respondents.

FULLERTON J.

This is a proceeding in mandamus, instituted by the appellant, to compel the respondents, who are officers of School District No. 68, to issue to him a warrant for $100, which he claims to be due him as part of his salary for teaching in the public school of District No. 68 during the school year of 1902 and 1903. In his application for the writ, the appellant alleged that on the 12th day of July, 1902, the directors of the school district named entered into a contract with him by the terms of which he agreed to teach in the public schools of that district for a period of 10 months at a salary of $100 per month, payable at the end of each school month out of the funds of the school district, upon a warrant drawn by the directors, payable by the county treasurer. He then alleges that he entered upon the performance of his contract at the time agreed upon, and fully and faithfully performed the same on his part; that the respondents paid the salary agreed upon for each month of the school year except the month of June, 1903, for which month the directors, unlawfully, and without reason, excuse, or justification, adopted a resolution withholding the warrant for his salary, and ever since have refused to issue such warrant, although demand had been made upon them therefor. On the filing of this application the court issued an alternative writ of mandate, to which the directors made return, and subsequently an amended return; the latter only appearing in the record sent to this court . In this return it is admitted that a contract was entered into between School District No. 68 and the appellant, by which the appellant was employed to teach in the public school of that district, but deny that such a contract was made as the appellant sets out. On the contrary, they allege that the appellant was employed to teach in both School District No 68 and the Union High School, composed of districts numbered 68, 4, and 20, and that he was to receive the sum of $80 per month for his services to District 68, and $20 for his services in the high school, all of which was to be paid by District 68. Further, it was alleged that the appellant did not faithfully comply with his contract, in that he did not issue and deliver to graduating pupils a diploma, as the rules and regulations governing the conduct of the schools required; also that he had taken and appropriated to his own use certain property of the district, of the value of $14, which he had not accounted for; and that subsequent to the institution of the proceedings he had received from the Union High School $200, which, together with the amount paid him by District 68, made $100 more than he was entitled to for his services under the contract. The prayer was that a peremptory writ be denied, and that the respondents be permitted to go hence without day.

After the filing of the amended return, a trial of the issues was entered upon, at which the appellant offered himself and one W. E. Holland as witnesses; their evidence tending to support the right of the appellant to the relief demanded by him. The testified, however, after the appellant had testified, and in the course of the examination of Mr. Holland, on motion of the respondents, dismissed the proceedings on the ground that it was not a case in which manfamus would lie; remarking, while giving the reasons for his conclusion, that, if the rule were otherwise, he did not think the evidence offered made a case entitling the appellant to a writ.

On both questions, we think the learned trial judge was in error. By virtue of the statute the writ of mandamus may issue to any inferior tribunal, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; and clearly it was the duty of this school board to draw a warrant for the appellant's salary as a teacher, if any such salary was due him. As his contract with the district provided that he was to be paid by a warrant drawn by the school board on the county treasurer, in no other way was he entitled to receive payment for his services; and, unless he can force the board to act, it is difficult to see how he is going to get paid at all. An action at law against the district will not furnish him relief. The most he could obtain by such an action would be a judgment against the district, which would entitle him to a warrant drawn by the directors on the county treasurer. He could not obtain a judgment which could be collected by execution. If the judgment was not paid voluntarily--if the directors still refused to act of their own volition--he would yet have to resort to mandamus to secure his rights.

It would seem, therefore, that in reason the claimant could resort to the remedy of mandamus in the first instance. But it is said that the remedy of mandamus is only applied where the right to the thing sought is clear, that it is not a procedure to determine disputed claims, and that here the directors disputed the right of the appellant to the amount claimed by him to be due as salary. But however effective this contention might have been when applied to the writ as anciently administered, it has no application to a writ denominated mandamus by the Code. Formerly mandamus was regarded as a prerogative writ, issued, not as of right, but at the pleasure of the sovereign or state, in his or its name, as an attribute of sovereignty; but with us the writ is not in any sense a prerogative writ, or a writ to be issued at the discretion of the court. It is a procedure under the Code, and any person who has a cause that calls for its invocation has the same right to sue out the writ as he has to commence a civil action to redress a private wrong. As we said in State ex rel. Race v. Cranney, 30 Wash. 594 71 P. 50, a proceeding in mandamus 'is a judicial investigation, the object of...