State Ex Rel. Wettrick v. Seattle, 115 Wash. 548, 197 Pac. 782

           STATE EX REL. WETTRICK v. SEATTLE.      549
 May 1921               Opinion Per MAIN, J.

the time that he had been separated from the service.
The position was formerly known as that of chief engineer
in the office of superintendent of public utilities
of the city, but the name was subsequently changed to
that of superintendent of maintenance, and since the
beginning of the action the title was again changed to
that of railway maintenance engineer. The duties of
the position covered the matter of superintending the
construction work and the maintenance upon the street
railway lines owned and operated by the city. The
cause was tried to the court and resulted in findings of
fact, conclusions of law and a judgment sustaining the
relator's right to be restored to the position and also
his right to the salary during the time that he had been
separated from the service. From this judgment the
respondent in the court below, the city of Seattle, the
superintendent of public utilities, and the
superintendent of railways of the city have appealed. The facts
found by the trial court, and which are sustained by
the evidence, are substantially as follows:

On April 1, 1912, the relator was duly appointed
chief engineer in the department of public utilities in
the classified civil service of the city of Seattle and
continued to hold that position until March 22, 1920.
On a later date, an ordinance was passed by the city
council which abolished certain positions in the public
utilities department and which named a position therein
of superintendent of maintenance. The work of the
position of superintendent of maintenance has, since
the 22d day of March, 1920, been carried on and the
position filled by the temporary appointment thereto
of a person who has at no time passed the civil service
examination for the position. The work done by
the railway maintenance engineer is practically all
comprised and included within the work formerly done

 550    STATE EX REL. WETTRICK v. SEATTLE.
                    Opinion Per MAIN, J.           115 Wash.

by the relator as chief engineer. On the theory that
the ordinance above referred to had abolished the position
of chief engineer, and that the position of superintendent
of maintenance was a different position,
the city, through its officers in the public utilities
department, refused to allow the relator to occupy tile
position and to perform the duties thereof. The
qualifications of the relator are conceded. The court
specifically found,

"that the work and duties to be performed under
said position of superintendent of maintenance (now
railway maintenance engineer) are identical with those
heretofore discharged by the relator as chief
engineer and the name of the position only has been
changed so as to make the title thereof correspond
more accurately with the duties performed."

The relator was, prior to the purported creation of
the position of superintendent of maintenance, an employee
of the city, having a civil service rating and
classification making him eligible to appointment to,
and the discharge of the duties of, such a position.
Prior to the bringing of this action, the relator applied
to the civil service commission for a hearing upon the
question of his removal, and a hearing was denied him.
Thereafter he brought this action as above indicated,
seeking to be restored to the position and for the
recovery of the salary during the time that he had been
separated therefrom. It is well settled that it is within
the power of the city council to abolish a position in
the classified civil service and thus separate an
incumbent from the service and discontinue the salary thereof.
State ex rel. Voris v. Seattle, 74 Wash. 199, 133 Pac.
11; State. ex rel. Burris v. Seattle, 82 Wash. 464, 144
Pac. 695; State ex rel. LaGrave v. Seattle, 109 Wash. 629,
187 Pac. 339.

           STATE EX REL. WETTRICK v. SEATTLE.      551
 May 1921               Opinion Per MAIN, J.

Under the rule stated, if the city council abolished
the office of chief engineer and created a new one with
new duties, the relator cannot complain. On the other
hand, if what was done in effect was the change of
name in the office only, and the duties of the office of
chief engineer were substantially the same as those of
superintendent of maintenance, the relator's position
is well taken.

The trial court specifically found, and the evidence
sustains the finding, that the work and duties to be
performed under the two positions were identical and that
the name of the position only had been changed. The
relator, therefore, has a right to prevail under the
holdings in Foster v. Hindley, 72 Wash. 657, 131 Pac.
197, and State ex rel. Gilmur v. Seattle, 83 Wash. 91,
145 Pac. 61. It is argued, however, that mandamus is
not the proper remedy. In State ex rel. Roe v. Seattle,
88 Wash. 589, 153 Pac. 336, it was held that

"an employee discharged in violation of the civil
service laws is entitled to be restored to his former
position by mandamus."

It is also argued that since the city has paid the
salary to the one performing the duties of the office a
recovery therefor cannot be had in this proceeding.
The right to recovery is sustained by the cases of
Foster v. Hindley, and State ex rel. Roe v. Seattle,
supra.

It is also suggested that the relator's remedy was to
bring all action against the service commission and
compel his restoration instead of a direct action to be
restored to the office. The relator, not having been
suspended or discharged for cause, but basing his action
upon the usurpation of authority, had a right to proceed
as in the present action. This is also determined
in the Roe case, supra. The case of State ex rel.

 552    KEITH v. PEART.
                     Syllabus.                115 Wash.

Wolcott v. Boyington, 110 Wash. 622, 188 Pac. 777, was a
case where a civil service employee had been discharged
for cause.

Under the facts shown by the record and the prior
holdings of this court, the relator was entitled to be
restored to the position and to recover the salary thereof.

The judgment will be affirmed.

PARKER, C.J., MITCHELL, TOLMAN, and MOUNT, JJ.,
concur.