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District Court of Appeal, Second District, Division 2, California.

NORTHRUP et al. v. HAYNES et al.

Civ. 10993.

Decided: July 29, 1936

Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Bourke Jones, Deputy City Atty., all of Los Angeles, for appellants. Robert F. Shippee, of Los Angeles, for respondents.

This is an appeal from an order granting respondents' petition for a writ of mandamus requiring appellants to pay to each of respondents the sum of $612.

The facts so far as material are:

Petitioners were improperly refused employment in the department of water and power for 72 working days and, after reinstatement to their positions, each sought through a writ of mandate to recover from the appellants the sum of $612.

This is the sole question necessary for us to determine:

Is a writ of mandate, where reinstatement is not sought, a proper remedy for recovery of wages due a municipal employee?

This question must be answered in the negative. The well–recognized procedure, where a right to recover salary is asserted and denied by respondents, is by ordinary suit at law for the salary. Butler v. City of Plainfield, 135 A. 669, 5 N.J.Misc. 170; Police Commissioner of City of Boston v. City of Boston, 279 Mass. 577, 181 N.E. 790. It is well settled that mandamus may not be invoked where there is a plain, speedy, and adequate remedy in the ordinary course of law. Section 1086, Code Civ.Proc.

Therefore, since petitioners could have filed suit in the municipal court to recover the amount of salary alleged to be due them, they had a plain, speedy, and adequate remedy at law. This is equally convenient, beneficial, and effective as a proceeding by mandamus, which therefore is not available to them. Black v. City of Santa Monica (Cal.App.) 56 P.(2d) 256; Burbank v. Hamilton, 63 Cal.App. 745, 746, 219 P. 1047.

For the foregoing reasons, the judgment is reversed, with directions to the trial court to enter judgment denying the petition for a writ of mandate.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.

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