(dissenting) — The majority does not allow recovery for injuries which are otherwise tortious. I cannot agree.
There are two clearly established foundations in this case. First, the defendants exceeded the scope of their authority in denying payment of appellant's vouchers without a formal revision of the county budget. This action was wrongful toward the appellant and was unlawful; if the action had been in accordance with law there would have been no legal or factual predicate for issuance of the writ of mandamus. See Miller v. Pacific County, 9 Wn. App. 177, 509 P.2d 377 (1973). Second, at this stage of the proceedings the appellant is entitled to all reasonable inferences in his favor and we must, therefore, ascribe to the defendants here the most malicious, base, and personal motives for their wrongful action and assume that the specific desire to inflict personal harm upon the appellant supplied defendants' sole or predominate incentive for their action. Appellant has so alleged without the opportunity to supply proof, and the trial judge refused to permit any evidence to be introduced on this issue. The case has reached us essentially in the posture of a 12(b)(6) motion, requiring us to accept appellant's allegations as verities. Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978). Although appellant may not be able to supply adequate proof to support his allegations, we should not convert any skepticism into an absolute bar to appellant's opportunity to have his day in court to attempt to prove them. The grant to defendants of absolute immunity under the circumstances of this case, even when not acting within the limits and scope of their lawful authority, is, I believe, erroneous.
The majority's finding of absolute immunity here is predicated upon its conclusion that the defendants were acting in their legislative capacity. This conclusion is erroneous. RCW 36.32, and particularly 36.32.120, reveals that county commissioners perform a variety of functions, including both legislative and executive/administrative duties. General legislative responsibilities include adoption *754of formal budgetary and taxing enactments and general police power ordinances and resolutions. However, the commissioners also are charged with the executive/administrative functions of managing county funds and accounts, prosecuting and defending actions by and against the county, and overseeing the care and use of county property.
The gravamen of appellant's complaint in this case had nothing to do with legislative budgetary action. Appellant is not challenging, and has never challenged, any general legislative budgetary enactment or formal revision. What appellant challenges, and has challenged from the beginning, is the refusal of the commissioners in reviewing vouchers submitted in full compliance with the county budgetary enactment, to approve them for payment of expenses which appellant lawfully incurred in the discharge of his official duties. This refusal to make payment is a simple administrative decision, as the legislative action making the funds available had been taken, and a budget-making allocation for appellant's expenditures was in effect when appellant incurred such expenses. This analysis accords entirely with the Court of Appeals opinion earlier in these proceedings. As stated therein:
So far as we know, the county commissioners have made no attempt to formally revise the prosecutor's current budget by adopting a resolution altering the appropriations previously enacted. . . .
. . . [T]he issue is simply — absent a formal revision of the prosecutor's budget, do the county commissioners have the power to refuse to approve those expenses, not otherwise invalid, which the prosecutor has incurred by reason of the operation of an office in Raymond? We hold that they do not.
Miller v. Pacific County, 9 Wn. App. 177, 178, 509 P.2d 377 (1973). Thus, at issue here is not legislative immunity, but executive/administrative immunity, and it is unnecessary to comment in this case upon the desirability of absolute immunity in a legislative context.
The Court of Appeals directed that a writ of mandamus *755be issued directing the county commissioners to take particular, specific action. Such a writ could not properly be issued to the commissioners in their legislative capacity, because legislative action is by definition discretionary. Discretionary duties are not generally subject to the mandamus action. State ex rel. Tubbs v. Spokane, 53 Wn.2d 35, 330 P.2d 718 (1958); Lillions v. Gibbs, 47 Wn.2d 629, 289 P.2d 203 (1955); Stoor v. Seattle, 44 Wn.2d 405, 267 P.2d 902 (1954). Where they are so subject, it is only when the exercise of discretion has been so arbitrary as to not be an honest and considered exercise, see Tubbs, Lillions, and Stoor. When the court issues a writ of mandamus for discretionary duties, it cannot direct that a particular result be reached; it can only require that the discretion be exercised honestly and properly. Benedict v. Board of Police Pension Fund Comm'rs, 35 Wn.2d 465, 214 P.2d 171, 27 A.L.R.2d 992 (1950). When the officer can make only one correct decision, the duty ceases to be discretionary and becomes ministerial. State ex rel. Craven v. Tacoma, 63 Wn.2d 23, 385 P.2d 372 (1963). Here, appellant was entitled to approval and payment of his vouchers as a matter of right; the commissioners could make only one correct decision, and the act of approval was ministerial. I believe the Court of Appeals therefore quite properly directed the issuance of the writ of mandamus requiring the commissioners to take particular, specific action — not merely to exercise their honest discretion. The majority here is inharmonious with this earlier, correct decision.
A private suit for damages generally is sustainable whenever mandamus is appropriate. See F. Mechem, A Treatise on the Law of Public Offices and Officers § 659 (1890). Indeed, the only two sources which the majority cites on this central issue of liability refute the majority's thesis that absolute immunity is proper here. In R. Gray, Private Wrongs of Public Servants, Al Cal. L. Rev. 303, 342 (1959), the author states that the "overwhelming majority" of jurisdictions in this country "take the position that malice, *756or dishonesty of purpose, can transform an otherwise privileged act of an official into one for which liability may ensue. [Citing cases from 26 jurisdictions, including Wood v. Rolfe, 128 Wash. 55, 221 P. 982 (1924).]" Gray cites only two states for a contrary view. Wood v. Rolfe, supra, should be overruled given the- majority's rejection of the well established rule.
The other authority cited by the majority, Shellburne, Inc. v. Roberts, 43 Del. Ch. 485, 238 A.2d 331 (1968), also supports the application of only a qualified immunity here, allowing liability to be imposed upon those acting in bad faith or with malice. There a county commissioner was granted absolute immunity in his legislative capacity for a vote cast upon a formal resolution, but was limited to the protection afforded by qualified immunity in his duties revolving the carrying out of legislative enactments. Absent formal legislative proceedings, the court held, a commissioner acts in an executive/administrative capacity. The court found that the issuance of a stop-work directive to a building inspector was executive in nature. In that capacity, the commissioner
is immune from personal liability, but the immunity is conditioned upon the absence of bad faith or malice or improper motive. A public executive officer is adequately protected, in our opinion, by such conditional immunity. ... We adopt as the better rule the conditional immunity for executive officers acting within the general scope of their authority, prevailing in the great majority of the states, under which malice or bad faith or corrupt motive will transform an otherwise immune act into one from which liability may ensue.
Shellburne, Inc. v. Roberts, 43 Del. Ch. 485, 496-97, 238 A.2d 331 (1968). Because these same authorities are cited by the majority on the essential issue in this case, I cannot agree that there is no authority supporting a finding of liability here. The overwhelming majority of states would impose liability in precisely these circumstances. See Gray, supra at 342 n.246; W. Prosser, Law of Torts § 132 (4th ed. 1971); F. Harper & F. James, Law of Torts § 2910 (1956). *757Consistent with these authorities, I would hold that the commissioners, acting here in their administrative capacity, hold only a qualified privilege which may be defeated by bad faith or malice.
The majority appears to ascribe great significance to its assertion that the defendants could have achieved the results they sought by following a different, and presumably legal, course of action. Assuming the accuracy of its assertion, I still find little basis for the majority's finding of comfort in this fact. Tort law is replete with examples of lawful ends which do not prevent recovery when those ends are sought by unlawful, malicious, and/or bad faith means. Perhaps the classic example of this proposition is self-defense, in which an actor is privileged to use reasonable force to repel an attack. This privilege is, however, conditioned upon the use of only force which is reasonable; use of excessive force to achieve the lawful result of self-protection results in tort liability. See Prosser, supra, § 19. Similarly, a landowner may pursue self-held remedies in achieving the lawful result of removing a trespasser from land, but this privilege gives way to tort liability when this lawful end is sought through the use of excessive, and hence, illegal force. See Prosser, supra, § 21. Conditional privileges apply in defamation, see Prosser, supra, § 115; Interference with Family Relations, see Prosser, supra, § 124; and Interference with Contractual Relations, see Prosser, supra, § 129. In each instance, however, the privilege to achieve lawful ends is conditioned upon the use of lawful means. As Prosser states with respect to interference with contractual relations, section 129, at pages 936-37:
The means employed may, however, affect the defendant's privilege to interfere. The privilege of intentional invasion of the plaintiff's economic interests is limited to reasonable and proper means, by a restriction not unlike that which limits the defense of property to the use of reasonable force. Methods which are tortious in themselves, such as violence, threats and intimidation, defamation, misrepresentations, the counterfeiting of a product, bribery, or the harassing of agents, will not be *758privileged, even where the defendant is acting for a purpose justifiable in itself, while peaceable inducement, or various forms of economic pressure, might be privileged under similar circumstances.
(Footnotes omitted. Italics mine.)
Thus, even if it is true that proper action, undertaken in the commissioners' legislative capacity eventually could have brought, in a lawful manner, the result they desired, it is beyond argument that the commissioners did not actually use this mode. The majority's observation that, although the commissioners in fact acted unlawfully, they could have performed an entirely different, lawful act for the same purposes is irrelevant. When improper means are used, tort liability should attach.
The majority appears to have decided that ruling for appellant here will subject the people of Pacific County to the responsibility of paying any judgment which appellant might obtain in a subsequent proceeding. Of course, that issue is in no way before this court. The sole issue is whether appellant's allegations of bad faith, malice, and personal attack state a compensable claim. Appellant has brought suit against both the county and the commissioners individually, so we need not determine who will pay for appellant's damages; we need decide only whether his damages are compensable.
Appellant's defeat in a reelection attempt is irrelevant. Although I find election results uniquely inapposite to a determination of legal consequences of illegal actions, even their use here fails to support the majority in the manner intimated. It is true that appellant was defeated at the polls in his quest for reelection. It is also true, however, that the commissioner most responsible for the voucher disapproval was also turned out of office by the voters. Irrespective of election results, however, I would not establish a total shield for those performing illegal acts merely because such acts occurred in a partially political context. Tortious conduct should result in a right of recovery, even when that conduct is politically charged. The governmental *759process is well served by requirement that executive/administrative action be undertaken in good faith, and the important ideals of our political system would be enhanced by granting only qualified immunity to those exercising such power.
Horowitz and Hicks, JJ., concur with Utter, C.J.
Reconsideration denied May 14, 1979.