MR. JUSTICE SANNER
delivered the opinion of the court.
According to the complaint, the appellant, plaintiff below, and Moses Quintín, George Farnam and William F. Bossier were on June 1, 1908, members of the police force of the city of Helena; on that day the respondent “wrongfully, unlawfully, maliciously and oppressively, and under color of his pretended authority as mayor of said city, did without right or jurisdiction or authority, and contrary to the provisions of the statute in that behalf enacted,” cause their dismissal and exclusion from office; and although they at all times and by all proper means protested against this exclusion and repeatedly reported for duty and tendered their services as members of the police force, they were by the act of respondent deprived of “all the insignia, ■badges, privileges and emoluments” of office until their restoration by judicial mandate on February 11, 1910. The personal .claims of Quintín, Farnam and Bossier are alleged to have been assigned to the appellant, and he prays damages measured by [369] the salary of each officer during the period of deprivation, with interest.
Several questions are presented by the assignment of errors, but they are all resolvable into one, viz.: whether the trial court correctly granted respondent’s motion for nonsuit. The order of nonsuit, to be sustained, must find support in one or the other of the following grounds: (1) That the appellant is barred and concluded from maintaining this action on principles of res judicata; (2) that the evidence does not show any damages suffered, by plaintiff which are recoverable in this action.
1. It seems advisable to first dispose of the question presented by the pleas in the answer, to the effect that the appellant is [1] precluded from maintaining this action because he and his assignors prosecuted against the present respondent, as mayor of the city of Helena, their several mandamus proceedings in and through the district court of the first judicial district and to final decision by this court “for the same causes of action as are now pleaded and in which the matters now in controversy were, or might have been, determined.”
It is disclosed by the reply that the fact-basis for the relief now sought is essentially the same as that for relief in the [2, 3] mandamus proceedings. Among the issues then presented and determined were “whether or not defendant, acting under the pretense and cover of his office as said mayor, but without authority of law and contrary to the provisions of the statute in that behalf enacted and without any right or justification so to do, on June 1, 1908, did unlawfully dismiss and discharge plaintiff from said police force and preclude him from the use or enjoyment of said place, and prevent him from performing any service or duty as a member of said force, and thereafter always prevented plaintiff from acting as such member and from discharging his duties as such, and deprived him of his badges and other insignia of his office and of his privileges as such member. ’ ’
The loss of emoluments as a matter of special damage was not raised by the pleadings in the mandamus proceedings; but it is [370] quite clear that if causes of action as against Frank J. Edwards, personally, now exist in virtue of the claims of appellant and his confreres, they existed in part, if not in toto, at all stages of the mandamus proceedings against Edwards as mayor; and if these claims should have been litigated in those proceedings, then under the familiar principle, applicable in mandamus as elsewhere, that a judgment concludes the parties thereto and their privies as to all matters which might have been litigated as part of the subject in controversy, they cannot be litigated now.
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MR. JUSTICE SANNER
delivered the opinion of the court.
According to the complaint, the appellant, plaintiff below, and Moses Quintín, George Farnam and William F. Bossier were on June 1, 1908, members of the police force of the city of Helena; on that day the respondent “wrongfully, unlawfully, maliciously and oppressively, and under color of his pretended authority as mayor of said city, did without right or jurisdiction or authority, and contrary to the provisions of the statute in that behalf enacted,” cause their dismissal and exclusion from office; and although they at all times and by all proper means protested against this exclusion and repeatedly reported for duty and tendered their services as members of the police force, they were by the act of respondent deprived of “all the insignia, ■badges, privileges and emoluments” of office until their restoration by judicial mandate on February 11, 1910. The personal .claims of Quintín, Farnam and Bossier are alleged to have been assigned to the appellant, and he prays damages measured by [369] the salary of each officer during the period of deprivation, with interest.
Several questions are presented by the assignment of errors, but they are all resolvable into one, viz.: whether the trial court correctly granted respondent’s motion for nonsuit. The order of nonsuit, to be sustained, must find support in one or the other of the following grounds: (1) That the appellant is barred and concluded from maintaining this action on principles of res judicata; (2) that the evidence does not show any damages suffered, by plaintiff which are recoverable in this action.
1. It seems advisable to first dispose of the question presented by the pleas in the answer, to the effect that the appellant is [1] precluded from maintaining this action because he and his assignors prosecuted against the present respondent, as mayor of the city of Helena, their several mandamus proceedings in and through the district court of the first judicial district and to final decision by this court “for the same causes of action as are now pleaded and in which the matters now in controversy were, or might have been, determined.”
It is disclosed by the reply that the fact-basis for the relief now sought is essentially the same as that for relief in the [2, 3] mandamus proceedings. Among the issues then presented and determined were “whether or not defendant, acting under the pretense and cover of his office as said mayor, but without authority of law and contrary to the provisions of the statute in that behalf enacted and without any right or justification so to do, on June 1, 1908, did unlawfully dismiss and discharge plaintiff from said police force and preclude him from the use or enjoyment of said place, and prevent him from performing any service or duty as a member of said force, and thereafter always prevented plaintiff from acting as such member and from discharging his duties as such, and deprived him of his badges and other insignia of his office and of his privileges as such member. ’ ’
The loss of emoluments as a matter of special damage was not raised by the pleadings in the mandamus proceedings; but it is [370] quite clear that if causes of action as against Frank J. Edwards, personally, now exist in virtue of the claims of appellant and his confreres, they existed in part, if not in toto, at all stages of the mandamus proceedings against Edwards as mayor; and if these claims should have been litigated in those proceedings, then under the familiar principle, applicable in mandamus as elsewhere, that a judgment concludes the parties thereto and their privies as to all matters which might have been litigated as part of the subject in controversy, they cannot be litigated now.
The question is not free from perplexity. In the Chapter of. our Codes relating to mandmius, we find provisions for a verified answer; for traversing the answer; for trial by jury of certain questions of fact; for judgment; and “if judgment be given [2] for the applicant, he may recover the damages which he has sustained, as found by the jury, * * * together with costs,” etc. (Rev. Codes, sec. 7224.) This section is apparently an open door to any claim of damages whatsoever arising out of the transaction which the writ of mandate is invoked to remedy; and such — the expressed conclusion of some courts — is implied in the decisions of others to be found upon the subject. (Achey v. Creech, 21 Wash. 319, 58 Pac. 208; Bell v. Thomas, 49 Colo. 76, 31 L. R. A. (n. s.) 664, 111 Pac. 76; People ex rel. Broderick v. Morton, 24 App. Div. 563, 49 N. Y. Supp. 760; People ex rel. Deerell v. Musical Mut. Pro. Union, 118 N. Y. 101, 23 N. E. 129; Marion Beneficial Society v. Commonwealth, 31 Pa. 82; Hibernia Fire Engine Co. v. Commonwealth, 93 Pa. 264; State v. Board of Commissioners, 11 Kan. 66; State ex rel. Race v. Cranney, 30 Wash. 594, 71 Pac. 50; State ex rel. Billings v. Lamprey, 57 Wash. 84, 106 Pac. 501; McClure v. Scates, 64 Kan. 282, 67 Pac. 856; People ex rel. Van, Valkenburgh v. Sage et al., 3 How. Pr. (N. Y.) 56.) There are several considerations, however, which convince us that this cannot be the correct interpretation of the statute. In the first place, all the décisions which seem to hold that damages for the original wrong may be recovered in the mandamus proceeding are either upon statutes judicially declared to follow the Statute of Anne (9th Anne, Chap. 20), or [371] they stand upon the theory that mandamus is, to all intents and purposes, a civil action. The Chapter of our Code relating to mandamus has been part of our written law since the territory was organized (Bannack Statutes, p. 123 et seq.; Codified Stats. 1872, p. 206 et seq.; Rev. Stats. 1879, p. 142 et seq.; Comp. Stats. 1887, p. 206 et seq.; Code Civ. Proc. 1895, sec. 1960 et seq.) and very early in our history it was settled that mandamus is not a civil action and that the Statute of Anne is not in force with us (Chumasero v. Potts, 2 Mont. 242, 258, et seq.; Territory v. Potts, 3 Mont. 364, 366). In Chumasero v. Potts, this court, touching the nature of mandamus said: “To call this an action or suit at law would certainly be a misnomer. * * * The manner in which the term ‘civil action’ is used in these two sections [secs. 522, 529, Civ. Prac. Act, 1872; Rev. Codes 1907, secs. 7218, 7225] shows conclusively that our legislative assembly did not consider that the proceedings in mandamus were a civil action. * * * The civil action has reference exclusively to private wrongs. * * * What is the nature of the proceeding called mandamus? It is not applicable as a redress for mere private wrongs. * * * It can- be resorted to only in those cases where the matter in dispute, in theory, concerns the public and in which the public has an interest. * * * The enforcement of the writ may incidentally, and as a result, affect private rights, but this is not the prime object of the issuance of the writ. * * * The attempt to classify the proceedings in mandamus is always futile. It is sui generis. Undoubtedly it may be called an extraordinary legal remedy, civil in its nature. * * * But, being a remedy to enforce public rights and not for the enforcement of private rights or the prevention or redress of private wrongs, it is not a civil action.” Again, in the recent ease of State ex rel. Stuewe v. Hindson, 44 Mont. 429, 442, 120 Pac. 485, we find the following: “This proceeding is essentially ex relatione. While Stuewe is nominally the complaining party, the taxpayers of Lewis & Clark county constitute the real party in interest; and if it can be said that from the allegations contained in the affidavit [372] and the alternative writ the taxpayers of the county are entitled to relief of any character, which can be granted in this proceeding, it is the duty of the courts to extend that relief, whether this relator individually desires it, or the attorney general opposes it. In our determination, we are not bound by the prayer of the relator, but may search the affidavit, and order such relief as the facts stated' may warrant; for the relief is granted, not to Stuewe individually, but to the public, the real party in interest.” Inferences, therefore, founded upon the Statute of Anne or upon the hypothesis that mandamus is a civil action, can have no validity to require such a construction of section 7224, Revised Codes, as respondent here seeks to evoke.
And this conclusion finds collateral support in the further fact that in a mandamus proceeding a jury is not a matter of right but of discretion. Any and all of the questions arising therein, whether of law or of fact, may be tried by the court without a jury, with or without a reference (sec. 7219, Rev. Codes; Chumasero v. Potts, supra). If the relator must litigate therein any private right to damages which he may have against the respondent personally, arising out of the wrong to which the mandate itself is directed, perforce the adversary must submit; so that a cause of action at law becomes summarily justiciable without a jury, notwithstanding the fact that as to such causes of action both parties are entitled to a jury and cannot be compelled to submit to a summary adjudication. (U. S. Const., 7th Amendment; Basey v. Gallagher, 20 Wall. (U. S.) 670, 22 L. Ed. 452, 1 Morr. Min. Rep. 683; Const. Mont., Art. III, sec. 23; Chessman v. Hale, 31 Mont. 577, 581 et seq., 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254.) But the statute clears itself of any such absurdity. It says, the applicant,,if he prevail, may have “the damages he has sustained” as found by the jury, etc. Sustained by what? Surely, by those circumstances upon which a jury may, but need not be, called to pronounce. These are questions of fact raised by the answer, “essential to the determination of the motion and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of [373] which, the application for the writ is based.” (Sec. 7219.) How is the question of what damages the applicant may have suffered from official inaction essential to the determination of whether the writ shall go to compel official action? Or how is the question of what damages the applicant may have sustained by reason of preclusion from office essential to determine whether he shall be restored ? It seems to be the rule even under the civil action theory of mandamus that damages cannot be awarded unless the peremptory writ is issued (Brown v. Worthen, 63 Kan. 883, 65 Pac. 255); and it is settled in this state that the peremptory writ cannot issue after the term of the officer involved has expired (State ex rel. Stranahan v. Board, 32 Mont. 13, 4 Ann. Cas. 73, 79 Pac. 402) ; what, in such a case, becomes of the relator’s right to damages for the original wrong if they are necessarily triable in the mandamus proceedings ?
The foregoing, and other considerations, as we think, justify our opinion that section 7224 is not to be interpreted as [3] contended by the respondent; but rather that the damages therein provided to be allowed in mandamus proceedings are such damages as are incidental to the proceedings themselves, and not those arising out of the prior preclusion or deprivation which the writ itself was invoked in part to redress. This brings us within, not the letter, but the spirit of the decision in Peterson v. City of Butte, 44 Mont. 401, Ann. Cas. 1913B, 538, 120 Pac. 483, and to our final conclusion upon this branch of the ease: That the plaintiff is not precluded from maintaining this action by the litigation of the mandamus proceedings referred to in the answer.
2. We are constrained, however, to agree with the contention of respondent that the evidence presented to the trial court was [4] insufficient to sustain the action as laid. The complaint alleges “that by, through and because of the hereinbefore stated unlawful, wrongful, oppressive and malicious acts and conduct of said defendant, plaintiff has been and still is deprived of said emoluments and compensation,” to his damage, etc. The “unlawful, wrongful, oppressive and malicious acts and con[374] cttuct” above referred to are the dismissal and preclusion of the plaintiff and his associates from their offices as policemen. No other damages are claimed, no other cause of damage is alleged; so that the burden of the charge is that the plaintiff and his associates were damaged by the loss of their salary in consequence of their unlawful dismissal and preclusion, and not otherwise. What causal connection there was between their dismissal and preclusion on the one hand, and the loss of salary on the other, is not further revealed.
At the close of appellant’s case the state of the proof as regards any causal connection between the respondent’s acts and the damages claimed! was this: Bailey and his associates had been kept out of their offices from June 1, 1908, to February 10, 1910, as the result of orders of the respondent under an ordinance judicially held) to be void; during that time they drew no pay; upon their restoration they presented, in due form, to the mayor and city council their verified claims for the accrued salary, and these claims, for some reason, not made to appear, were rejected. There was an offer of proof that the city had exceeded the constitutional limit of indebtedness, but this was rejected, and properly so, for lack of an allegation in the pleadings.
The various decisions of this court relative to the status of the plaintiff and his associates establish that their dismissal and preclusion from office were without legal effect. (State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940; State ex rel. Quintin v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 106 Pac. 695; State ex rel. Bailey v. Edwards, 40 Mont. 313, 106 Pac. 703; State ex rel. Edwards v. District Court, 41 Mont. 369, 109 Pac. 434.) In contemplation of law, therefore, they were never dismissed, but were, during the entire period of their unlawful preclusion, police officers of the city, entitled to be paid as such, and, upon making good their claim to the office, in position to assert their right as against the city to the salary accrued. (Peterson v. City of Butte; 44 Mont. 401, Ann. Cas. 1913B, 538, 120 Pac. 483; Wynne v. City of Butte, 45 Mont. 417, 123 Pac. 531.)
[375] So far as we can tell, the failure of appellant and his associates to receive their pay may have been due to circumstances wholly unconnected with the acts of respondent complained of; for there is absolutely nothing before us to show that the city could not have been made to respond or that it cannot now be made to respond; and if it should be made to respond, no emoluments will have been lost and therefore no damages suffered of the character alleged.
“But it does not lie in the mouth of defendant to say that another person — Helena—is liable for the salaries”; so say appellant’s counsel, and Lumley v. Gye, 2 El. & Bl. 216, is cited in support of this position. That case, which was for damages directly due to the malicious act of Gye in procuring an opera singer to abandon her contract with Lumley, was decided upon principles wholly foreign to the case at bar; and without indicating whether we should, under appropriate circumstances, care to follow it, we note in the opinion of Compton, J., this language: “The damages occasioned by such malicious injury might be calculated upon a very different principle from the amount of the debt which might be the only sum recoverable on the contract. * * * The servant or contractor may be utterly unable to pay anything like the amount of the damage sustained entirely from the wrongful act of the defendant. ’ ’ In the case at bar damage might have been claimed upon a different basis and therefore calculated upon a different principle and upon the amount of the unpaid salary; but it was not. The.city of Helena may be utterly unable to pay the salary arrears, and the damage sustained by appellant may be due entirely to the wrongful act of respondent; but, if so, these facts have not been made to appear. This being true, there was a lack of proof; and for this reason the judgment must be affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
(Submitted June 11, 1913.
Decided July 7, 1913.)