(concurring) — I agree with the majority but believe it unnecessary to decide whether the act of the county commissioners in refusing payment of the appellant's claim was legislative, discretionary or ministerial. The Court of Appeals, Division Two, has held in Miller v. Pacific County, 9 Wn. App. 177, 509 P.2d 377 (1973),1 that *749the commissioners were obliged to make these payments, since they had not, by resolution, revised the budget. We denied a petition for review.
As the case stands now, the commissioners wrongfully refused to pay these claims and have been ordered to pay them, an order which I assume has been obeyed, since it is not suggested to the contrary. I find it most awkward to attempt to fit this refusal into some tort category, where the dissent suggests it belongs, neglecting, however, to analyze the various torts whose names are so casually dropped or to designate the category into which the refusal falls.
I see no reason to engage in analytical adventures, either with respect to the nature of the commissioners' function or the characterization of their act as tortious, malicious, or merely ill advised, for the question before us does not necessitate such inquiry. RCW 7.16.260 provides that, in a mandamus proceeding, if judgment be given for the applicant, he may recover damages which he has sustained, as found by the jury or as determined by the court or referee, together with his costs. The question is: What damages are recoverable?
The Superior Court, having studied the authorities upon this question, and the briefs of the parties, concluded that, however much the appellant may have suffered damage as a result of other causes, the only damages legally attributable to the refusal to pay his office expenses (whatever the motive may have been) were the outlays directly resulting from the delay in obtaining payment of his vouchers and those incurred in obtaining the writ of mandamus, an amount which was stipulated by the parties. My own examination of the authorities upon the question convinces me that the trial court was eminently correct.
The statute does not specify the damages to be recovered, so we must assume that the legislature meant the ordinary rule of damages to apply, and that the damage to *750be recovered is the amount naturally resulting from the wrongful act or refusal to act. The appellant and the dissent agree that the commissioners' act here was in the nature of a tort. If that is so, the rule which we have recently stated in Maltman v. Sauer, 84 Wn.2d 975, 979-80, 530 P.2d 254 (1975), should apply. We said there:
The courts of this state have consistently recognized the rule that when a plaintiff brings an action in tort, regardless of the particular doctrine relied upon, he has the burden of showing that
(1) there is a statutory or common-law rule that imposes a duty upon defendant to refrain from the complained-of conduct and that is designed to protect the plaintiff against harm of the general type; (2) the defendant's conduct violated the duty; and (3) there was a sufficiently close, actual, causal connection between defendant's conduct and the actual damage suffered by plaintiff.
Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969).
In none of the cases which I have found dealing with the damages recoverable in a mandamus action to compel the payment of money wrongfully withheld have consequential damages been allowed, or even claimed for that matter, and the damages allowed have generally been confined to the amount improperly withheld and the costs of the mandamus proceeding — sometimes including interest and sometimes attorney fees. These cases are gathered together in 73 A.L.R.2d 903 (1960), Allowance of Damages to successful plaintiff or relator in mandamus; 55 C.J.S. Mandamus § 342, at 606 (1948 and Supp. 1978); and 52 Am. Jur. 2d Mandamus § 495 (1970). As these authorities make clear, damages which are not the natural and proximate result of the action of the respondent which gave rise to the mandamus proceeding are not recoverable.
The damages which the appellant contends he should recover in this proceeding are for mental anguish, loss of reputation, public embarrassment, the loss of a later bid for reelection, and damages to his career as a lawyer. It should *751be obvious that none of these is the natural and probable consequence of a refusal to pay his office expenses, however malicious and unwarranted that refusal may have been.
The appellant recognizes that the mere refusal did not bring upon him these damages which he allegedly suffered, but argues that they resulted from the necessity of bringing a lawsuit to force the payment of the expenses. But there is nothing in the experience of the courts to indicate that these dire consequences are the natural and probable result of bringing such a suit. Of course, if it were the other way around, and the commissioners had plagued the appellant with lawsuits without probable cause, damages to his reputation, resulting from malicious prosecution, might be recoverable. But the notion that a person who brings suit and wins it can thereafter sue the defendant for harm to his reputation, mental suffering, etc., is indeed a novel one in the law, and it is not surprising that no authority is cited in the briefs of the appellant or the dissent for this proposition. The damages sustained by a plaintiff in bringing a lawsuit are the costs of the suit, and perhaps attorney fees, but never to my knowledge has a court allowed recovery for such items as are claimed by the appellant.
As the Superior Court rightly divined, if the alleged damage did occur, it was referable to some cause other than the refusal to pay the expenses or the filing of the lawsuit. It is apparent that any damage of this sort was caused by the publicity given to the quarrel between the appellant and the commissioners. If that publicity included slanderous and untrue statements, made by the commissioners with malice (as defined by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964)), the appellant may well have a cause of action for that tort. But that is not this action.
There is nothing in the language of RCW 7.16.260 which manifests a legislative intent that issues of this sort should be tried out in a mandamus action. Nor is there any reason to suppose that the legislature, when it enacted RCW *75236.32.120(5), providing that the legislative authorities of the several counties shall "[a]llow all accounts legally chargeable against the county not otherwise provided for," contemplated that a breach of that duty would result in the kind of liability contended for by the appellant here. Since that harm was not reasonably foreseeable as a consequence of a failure to allow an account, the first requirement of our tort liability rule quoted above was not met in the present instance. In my opinion, the third requirement, that of a close, actual, causal connection between the commissioners' conduct and the damage suffered, was also missing.
For these reasons, all of which are apparent and can be determined as a matter of law, the court below did not err in its judgment.
We concur with the majority opinion. Nevertheless, to avoid any misinterpretation of the opinion, we think it desirable to point out that the County Commissioners of Pacific County were not, in the first instance, required to provide appellant, as the elected Prosecuting Attorney for Pacific County, with office space away from the county seat. Whether they chose to do so or not would at best be a discretionary act for which they, as well as appellant, would be accountable to the taxpayers of the county.
Unfortunately, in the instant case the commissioners initially did so provide appellant with the requested expense and then undertook to withdraw the budgeted item by an improper method. Miller v. Pacific County, 9 Wn. App. 177, 509 P.2d 377 (1973). The majority opinion, and particularly the last paragraph thereof, should not, therefore, be construed as requiring county commissioners, under threat of judicial mandate, to provide, in every instance, elected county officials with office space away from the county seat.
The foregoing opinion was prepared by Justice Orris L. Hamilton prior to his retirement and is adopted by the undersigned Justices as their opinion.
Rosellini, Stafford, Wright, and Brachtenbach, JJ.
Nothing in that opinion supports the assumptions made by the dissent here that the commissioners acted maliciously or in bad faith. The question whether they were required to pay the expenses of an office located outside the county seat was debatable, as evidenced by the fact that the trial judge (whose motives I trust the dissent does not question) had held that their decision was made in the *749proper exercise of their discretion. As I view the case, however, motive is not a significant factor.