It is last urged that the court erred in allowing the verdict to stand, for the alleged reason that the amount, $1,350, is excessive. While it may not appear conclusively that permanent injuries were incurred, yet there was testimony to the effect that respondent was severely injured in his foot, and that the anatomy thereof is such that the injury may be troublesome for a long time. It was also shown that his vocation is now that of a carpenter, and that weakness in the foot may materially decrease his earning ability. Considering the evidence and the amount of the verdict, we think it does not appear that passion or prejudice prompted the amount. Under such circumstances we shall not disturb it. Rush v. Spokane Falls & Northern R. Co., 23 Wash. 501, 63 Pac. 500. We find no prejudicial error and the judgment is affirmed.

cur.

MOUNT, C. J., and FULLERTON and DUNBAR, JJ., con

[No. 5110. Decided January 16, 1905.]

THE STATE OF WASHINGTON, on the Relation of Tom
Brown, Appellant, v. JOHN MCQUADE et al.,

as Directors etc., Respondents.1

MANDAMUS-WHEN LIES-SCHOOLS-COMPELLING SCHOOL BOARD To ISSUE WARRANT FOR TEACHER'S SALARY. Mandamus will lie upon the application of a school teacher to compel a board of school directors to issue a warrant for his salary, if anything is due under a contract providing that he was to be paid by a warrant drawn by the school board on the county treasurer, the remedy at law being inadequate, since it could only result in a judgment directing the issuing of a warrant.

SAME-MANDAMUS UNDER THE CODE. The principle that the writ of mandamus issues only where the right thereto is clear 1Reported in 79 Pac. 207.

36 579

40 455 40 475 36 579 f42 378

Opinion Per FULLERTON, J.

[36 Wash. has no application to the writ authorized by the Code, and hence may issue, although sought to enforce disputed claims, the procedure under the code having all the elements of a civil action.

SCHOOLS AND SCHOOL DISTRICTS--CONTRACT TO TEACH SCHOOLVALIDITY. It is error to dismiss a proceeding in mandamus to enforce a teacher's contract to teach school, on the theory that it was illegal to contract to teach a district school forming a part of a union district, and at the same time to teach in a union Ligh school in the same building, as there is nothing illegal in such contract.

MANDAMUS-PLEADINGS-REPLY. It is not necessary, under the code, to reply to a return or answer to mandamus, new matter being deemed denied.

Appeal from a judgment of the superior court for King county, Rudkin, J., entered October 26, 1903, upon motion of the defendants, dismissing an application for a writ of mandamus, after hearing the plaintiff's evidence. 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 number 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 number 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 ten months, at a salary of $100 per month, payable at the end of each month out of the funds of the school district, upon a warrant drawn by the directors payable by the county t. rer. He then alleges that he entered upon the per

formance 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 number 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 number 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 respondent 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

The

entitled to for his services under the contract. 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 court, 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 mandamus 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. we said in State ex rel. Race v. Cranney, 30 Wash. 594, 71 Pac. 50, a proceeding in mandamus,

As

is a judicial investigation, the object of which is the determination of civil rights, the same as in any ordinary proceeding; not only the determination of rights, but their determination in such a way as to cul minate in an effective judgment."

In our practice, mandamus is nothing more than one of the forms of procedure provided for the enforcement of rights and the redress of wrongs. The procedure has in it all the elements of a civil action. The facts stated in the affidavit for the writ may be controverted by a return,