SAME- - ADEQUATE REMEDY AT LAW.

Where a city comptroller refuses to issue a salary warrant to an officer of the city, on the ground that he has no title to the office, mandamus is the proper remedy when the salary of the officer and the duty of the comptroller to draw such warrants are both fixed by law, and the officer is not compelled to first resort to an action at law against the city for the recovery of money, especially when it appears that the city is not disputing his claim. SAME INTERFERENCE WITH OFFICER'S DISCRETION.

The duty of a city comptroller to draw warrants for officers whose salary is fixed by law being clearly defined by ordinance and charter, the performance of such duty would not require the exercise of judgment and discretion on the comptroller's part to determine the title of an officer to his office, and hence the performance of his duty in that respect is enforcible by mandamus.

MUNICIPAL CORPORATIONS

ARIES.

AUDIT OF CLAIMS

EXCEPTION OF SAL

Where the salary of a city officer is fixed by charter or by ordinance passed pursuant to the charter it is not such a claim as is required to be passed upon by an auditing committee, whose duty it is made by charter to examine or reject or disallow all claims and demands of whatever nature against the city, "except salaries of city officers as fixed by this charter."

CITY OFFICERS - CORPORATION COUNSEL

FICE HOLDING OVER.

EXPIRATION OF TERM OF OF

Under the rule of law that an officer holds office until his successor is appointed and qualified, unless by the language of the statute such holding over is expressly or impliedly prohibited, the corporation counsel of the city of Spokane must be construed as continuing in office when no successor has been appointed and confirmed, where the city charter provides by § 16, that "all officers shall hold their offices until their successors are elected or appointed"; by § 79, that "the corporation counsel shall be appointed by the mayor and confirmed by the city council, and shall hold office for the term of one year, and until his successor is duly elected and qualified"; and by §9 (as subsequently amended), that "the corporation counsel shall hold office for the term of two years, and all of § 79 in conflict with this section is hereby repealed."

Appeal from Superior Court, Spokane County.-Hon. GEORGE W. BELT, Judge. Reversed.

Opinion of the Court-WHITE, J.

Mai. 1902.]

Cullen & Dudley, for appellant.

Hoyt & Taylor, for respondent.

The opinion of the court was delivered by

WHITE, J.-This is a proceeding, brought upon the relation of the appellant, for a writ of mandamus to compel the respondent, as comptroller of the city of Spokane, to place the appellant's name upon the city pay roll for the month of May, 1901, as corporation counsel of said city for the entire month, and to make and deliver to appellant a pay check for the salary of such officer for the full month at the rate of $200 per month. The facts, as shown by the affidavit and alternative writ, are that, by ordinance passed May 23, 1899, the salary of the corporation counsel of the city of Spokane was fixed at $200 per month. Immediately after the passage of this ordinance, A. G. Avery was appointed corporation counsel for the period of two years. On or about the 15th of October, 1900, Mr. Avery resigned, and the appellant was thereupon appointed and confirmed as corporation counsel of the city, to fill out the unexpired term. The appellant duly qualified and entered upon the performance of the duties of the office, and thereafter continued to perform such duties until the commencement of this proceeding, including a period covering the entire month of May, 1901. No successor to the appellant has been appointed and confirmed, and no person has qualified to perform the duties of the office since the appointment, confirmation, and qualification of appellant. Respondent is, and has been since the 17th day of May, 1901, the comptroller of the city of Spokane. By ordinance it is made his duty, as city comptroller, to certify pay rolls for official salaries fixed by charter or ordinance, and to pay such salaries by pay

Opinion of the Court-WHITE, J.

[28 Wash.

checks issued by him upon the proper fund of the city treasury. The charter further provides that the salary of corporation counsel shall be paid in warrants at the end of each calendar month. The appellant duly demanded of the respondent that he perform these duties, by certifying to a pay roll showing appellant to have been corporation counsel for the month of May, 1901, and making and delivering to appellant a pay check for the salary for that month. This the respondent has refused to do, but has prepared and certified a pay roll for the salaries of city officers fixed by charter or ordinance for the month of May, 1901, and has therein set down the name. of appellant as corporation counsel for the city for the period of twenty-one days only of said month of May, and certified that the appellant as such corporation counsel is entitled to receive as salary the sum of $135.45 only, being the salary for twenty-one days at the rate of $200 per month, and has prepared a pay check in favor of the appellant for said sum of $135.45 only. The alternative writ having been served, the respondent appeared and demurred upon the grounds (1) that the court was without jurisdiction of the subject matter; and (2) that the affidavit and alternative writ of mandate did not. state facts sufficient to constitute a cause of action, or to entitle the relator to any relief. This demurrer being sustained, and the relator electing to stand upon the affidavit and alternative writ, judgment of dismissal and in favor of the respondent for costs was entered. From the order sustaining the demurrer and the judgment, this appeal is taken.

The respondent interposes a motion to dismiss this appeal upon the ground that this court has no jurisdiction, inasmuch as the amount in controversy is the sum of

Mar. 1902.]

Opinion of the Court-WHITE, J.

$64.55; being the difference between the salary for the full month of May and the salary for twenty-one days of that month.

"The supreme court shall have appellate jurisdiction in all actions and proceedings, excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of the property, does not exceed the sum of $200, unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute.

§ 4, art. 4, State Constitution.

It will be observed that a distinction is drawn, under this provision of the constitution, between "actions" and "civil actions at law for the recovery of money or personal property." It may be conceded that mandamus is generally regarded as an action. It is of common-law origin and the writ of mandamus is in the nature of a commonlaw remedy. A judgment in a mandamus proceeding, as in case of an ordinary action at law, is subject to review by writ of error or appeal under like conditions as in other cases. State ex rel. Boom Co. v. Superior Court, 2 Wash. 9 (25 Pac. 1007). But while it is an action at law, within the meaning of the term "action" as used in the constitution, it cannot be said to be "a civil action at law for the recovery of money or personal property." These terms refer to an ordinary action where the plaintiff seeks to recover a simple money judgment, or a judgment for the recovery of personal property or its value. The remedy sought in a mandamus proceeding is of an extraordinary nature. The complainant, under our statutes, in such an action, seeks to obtain a command from a court of law directed to an inferior tribunal, corporation, board, or person, to compel the performance of an act

Opinion of the Court-WHITE, J.

[28 Wash.

which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person. §5755, Bal. Code.

While the particular question here raised was not discussed, we have already entertained jurisdiction in two, if not more, similar actions. Mudgett v. Liebes, 14 Wash. 482 (45 Pac. 19); State ex rel. Smith v. Neal, 25 Wash. 264 (65 Pac. 188). These were actions in the nature of mandamus proceedings to compel an officer to issue city and county warrants to the relators. In the first case $83.33 was involved. In the second case less than $200 was involved. We have also held that, where a claim is allowed and a warrant is to issue for it, the one entitled to the warrant must compel the ministerial officer who is in fault to act, before he is entitled to any other remedy. Abernethy v. Town of Medical Lake, 9 Wash. 112 (37 Pac. 306). We therefore conclude that the motion to dismiss must be denied.

Several questions are presented by the demurrer: First, The technical objection that mandamus is not the proper remedy. Second (and the principal question involved), That respondent's term of office ceased immediately upon the expiration of the period of two years from the date of Mr. Avery's appointment; that immediately upon the termination of the two years, and ipso facto, the appellant ceased to be an officer of the city and ceased to be entitled to any salary. No question is made by respondent as to the regularity of appellant's appointment and qualification to and for the office of corporation counsel, or as to the full performance by appellant of the duties of the office