State Ex Rel. Breslin v. Todd , 8 Wash. 2d 482 ( 1941 )

Relator here instituted a proceeding before the superior court for King county, by way of a petition for a writ of mandamus, directed to the county commissioners, requiring them to forthwith reinstate relator as an employee of King county. Responding to an order to show cause why the writ should not issue, the respondents appeared and moved to quash relator's application, for the reason that the petition filed in support thereof failed to state facts sufficient to authorize the granting of the relief prayed for, or any relief. An order was entered sustaining the motion to quash, and, January 9, 1941, a judgment was entered dismissing the action.

January 11, 1941, relator filed in this court his application for a writ of certiorari, to review the order sustaining the motion to quash and the judgment of dismissal. An order to show cause was issued, requiring respondent judge and the other respondents to appear herein and show cause why the writ of certiorari should not issue. In due time the matter was regularly argued and submitted to this court for decision.

Statutory writs of mandamus are provided for by Rem. Rev. Stat., § 1013 [P.C. § 8186] et seq. This court has repeatedly held that an application for a writ of mandamus is a civil action at law. State ex rel. Nesbitt v. Baughman, 185 Wash. 514,56 P.2d 155, and cases therein cited.

Rem. Rev. Stat., §§ 1032 and 1033 [P.C. §§ 8391, 8392], read as follows:

"§ 1032. Except as otherwise provided in this chapter, the provisions of the Code of Procedure concerning civil actions are applicable to and constitute the rules of practice in the proceedings in this chapter."

"§ 1033. From a final judgment in the superior court, in any such proceeding an appeal shall lie to the supreme court."

In the following cases, this court entertained appeals from judgments granting writs of mandamus: State ex rel. Race v.Cranney, 30 Wash. 594, 71 P. 50; State ex rel. Billings v.Lamprey, 57 Wash. 84, 106 P. 501. In the following cases, this court entertained appeals from judgments denying writs of mandamus: State ex rel. Brown v. McQuade, 36 Wash. 579,79 P. 207; State ex rel. Hunt v. Okanogan County, 153 Wash. 399,280 P. 31, 67 A.L.R. 668. In the case of Jones v. Paul, 56 Wash. 355,105 P. 625, this court denied an application for a writ of certiorari, holding that an adequate remedy by appeal was available. The case of State ex rel. Northern Pac. R. Co. v.Superior Court, 80 Wash. 190, 141 P. 365, is to the same effect.

A judgment entered in a mandamus proceeding, whether granting or denying the writ, may be brought before this court for review by appeal, and that procedure should be followed unless too slow, or otherwise inadequate by reason of some emergency. In the case at bar, no showing was made that remedy by appeal was not plain, speedy, and adequate.

The writ should be denied.

In any event, the judgment of the trial court was correct. Rem. Rev. Stat., § 10753, relied upon by relator, quoted in the majority opinion, by its express terms applies to honorably discharged soldiers and sailors. The petition filed before the superior court by relator alleges simply that he is a veteran of the World War. Clearly, that allegation was insufficient to afford relator any standing in court. To claim any benefit under the statute, the claimant must not only be a veteran, but must have received an honorable discharge from some branch of the armed forces of the United States. If the claimant be a widow, it must appear that her deceased husband had been granted such an honorable discharge.

For the reasons stated, I am not in accord with the opinion of the majority.

DRIVER, J., concurs with BEALS, J.