State Ex Rel. Schoblom v. Anacortes Veneer, Inc. ( 1953 )

Grady, C. J.

(concurring)—I concur in the result reached by the majority opinion, but upon the ground that section 9 of the by-laws so modifies section 8 as to make it ineffectual if the directors of the corporation choose to defeat the purpose of that section by recognizing the preference right of employment and then immediately discharging the preferred stockholder-employee. The record indicates that the directors intend to exercise the authority given by section 9 if the corporation is compelled by court decree to give appellant his preference right provided by section 8. If we had section 8 only to consider, I would be of the opinion that our statutory mandamus RCW 7.16.150 and 7.16.160 would be available to appellant to compel the corporation to accord to him the right given by section 8 of the by-laws. The applicable part of'the statute is as follows:

“The writ of mandamus . . . may be issued . . . to any . . . corporation ... to compel the admission of a party to the use and enjoyment of a right . . . to which he is entitled, and from which he is unlawfully precluded by such . . . corporation ...”

This statute refers to such a right as appellant acquired when he became a stockholder and affords him a remedy if such right is denied to him. In applying the statute, we must not be led afield by common-law concepts of the scope and purpose of mandamus. This has happened in some of our cases when we have adopted and quoted from texts and excerpts from cases not voicing the ideas on the subject of mandamus expressed by the statute.

I find no reason to explore the field of specific performance because it is not the remedy appellant has sought. He has instituted a statutory mandamus proceeding, but is unable to vindicate his right because of a by-law which enables the corporation to lawfully destroy the right given.