This cause is before us wholly upon the petition of the relator suing on behalf of himself, two other named individuals, and all others similarly situated. The petition makes the following allegations, which, for the purpose of this case, must be taken as true: Relator is a veteran of the World War. For about five years prior to September *Page 487 20, 1940, he was regularly employed by respondent county commissioners as a grader operator, at the Bow Lake gravel pit in King county, and was then receiving a salary of one hundred and sixty-five dollars per month. During all of that time he was fully qualified to, and did, perform the duties assigned to him as such operator. At the same time and place, other individuals who were not veterans were employed to perform, and did perform, the same kind of duties as those performed by relator.
On September 20, 1940, the commissioners, without notice and without cause, discharged relator, but retained in their employment other persons who were not veterans and who continued to perform the same duties that relator had been performing. The ground assigned by the commissioners for discharging him was lack of funds, although they still retained nonveterans for employment in the same capacity. Relator demanded to be reinstated and reemployed by reason of the preference in employment afforded by Rem. Rev. Stat., § 10753, quoted in the majority opinion. The demand was refused. Similar allegations were made in the petition as to the two other named individuals, except that they were alleged to have been employed as truck drivers.
Relator's contention here is that the statute above mentioned is mandatory, and guarantees him a preference over nonveterans so long as there is no difference in qualifications and there is still work for anyone in that capacity. Respondents' contention is that the statute merely gives the veteran the first right ofposition, but does not guarantee him retention in employment, even though nonveterans be retained in the same line of work after the veteran is discharged. Respondents' theory with reference to the matter is *Page 488 aptly expressed in the following paragraph in their brief:
"No county employee has civil service status at this time. It has always been the practice of each newly elected officer to make changes in the personnel of his department, in accordance with his political faith. This practice has been a characteristic of our system of government and a philosophy which was expressed by Andrew Jackson in the words `To the victor belong the spoils.' To adopt the holding suggested by the relator — that an employee who is a veteran is entitled to his job as long as there is a job in his department which he is capable of filling — would be to prevent the turn-over of employees, which in greater or lesser degree generally follows an election in which a new administration comes into power."
The majority opinion does not adopt respondents' thesis, but is written upon a theory that was not advanced or suggested by either counsel, by brief or at the oral argument. The opinion takes the position that, even if Rem. Rev. Stat., § 10753, be mandatory, the only remedy for the violation of the preference right is the imposition of the penalty prescribed by Rem. Rev. Stat., § 10754. I cannot agree with that conclusion. If the statute be held to be mandatory, it seems to me to be unreasonable and unjust to hold that, even though the law enjoins a preference in favor of the veteran, the only remedy that he may have is by way of a possible fine of from five to twenty-five dollars to be imposed on the offending official and, when collected, to be paid into the registry of the court. Even if the fine be imposed, and be paid, that does not secure to the veteran the employment to which he is entitled. The statute is satisfied only with performance, not by a fine for nonperformance.
The majority opinion is rested upon the general principle that, when a statute gives a new right and prescribes *Page 489 a particular remedy for its enforcement, such remedy is exclusive. But, by the same token, the remedy must be one which, if invoked, will secure the right accorded by the statute, and not one which, though invoked, will still leave the right unsatisfied.
As authority for its specific holding, the majority opinion quotes from 3 Cooley on Torts (4th ed.), 352, § 475 (3), as follows:
"So if performance of the duty is enjoined under penalty, the recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured."
That sentence, however, is immediately followed by a statement which, it seems to me, fits the present situation exactly. Judge Cooley continues by saying:
"But the rule is not without its exceptions; for if a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the state or to an informer, the right of an individual injured to maintain an action on the case for a breach of the duty owing to him will be unquestionable."
A reading of the many cases cited in the majority opinion in support of its conclusion will, I think, reveal that they cover factual situations entirely different from the one before us, and are not at all inconsistent with the statement last made by Judge Cooley.
Until and unless the majority can find a safer and more logical ground than it has for denying the relief sought in this instance, I am constrained to dissent.
SIMPSON, J., concurs with STEINERT, J. *Page 490