56 Wn.2d 407, THE STATE OF WASHINGTON, on the Relation of Association of Washington Industries, Plaintiff, v. OTTO S. JOHNSON, as Acting Commissioner of the Employment Security Department, Respondent

[No. 35470. En Banc.      Supreme Court      June 23, 1960.]

THE STATE OF WASHINGTON, on the Relation of Association of
Washington Industries, Plaintiff, v. OTTO S. JOHNSON,
     as Acting Commissioner of the Employment
          Security Department, Respondent. 1

[1] MANDAMUS - NATURE AND GROUNDS - ADEQUATE REMEDY AT LAW. Mandamus is an extraordinary proceeding, and it is permitted only where there is no plain, speedy or adequate remedy at law.

[2] ADMINISTRATIVE LAW AND PROCEDURE - JUDICIAL REVIEW - AVAILABILITY OF OTHER REMEDY. When an adequate administrative remedy is provided, relief must be sought by exhausting that remedy before the courts will intervene.

[3] SAME. Under RCW Title 50 (Employment Security Act) which provides an appeal procedure from decisions of the Department of Employment Security to the Commissioner, to an appeal board, and thereafter, to the courts, a writ of mandamus cannot issue where an employer seeking to compel the Acting Commissioner of the Employment Security Department to issue experience rating credits, has not pursued the administrative remedies made available by statute, and there was no showing that the administrative remedy was inadequate.

[4] SOCIAL SECURITY - UNEMPLOYMENT SECURITY - REVIEW - DECISIONS REVIEWABLE. A letter from the Acting Commissioner of the Employment Security Department, apprising an employer that the surplus in the unemployment compensation fund was insufficient to warrant allowance of rating credits, although not a formal order, was sufficient evidence of the Commissioner's intention for the employer to test the correctness of the determination through the use of the statutory administrative remedies.

[5] SAME - PROCEEDINGS - RATING CREDITS - TIME LIMITATION ON REQUEST FOR ADJUSTMENT. The thirty day limitation on request for adjustment of the amount of credit shown on the credit notice mailed to an employer, as set out in RCW 50.28.060 , starts to run from the date the formal rating credit notice is given, when rating credits are authorized.

Application filed in the Supreme Court February 10, 1960 for a writ of mandamus, compelling the Acting Commissioner of the Department of Employment Security to issue experience rating credits. Denied.

1 Reported in 353 P. (2d) 881.

[2] See Ann. 130 A. L. R. 882; Am. Jur., Public Administrative Law, 197.

 408    STATE EX REL. ASS'N ETC. v. JOHNSON. [56 Wn. (2d)

C. Lee Coulter, for relator.

The Attorney General, Paul J. Murphy and Richard M. Montecucco, Assistants, for respondent.

William J. Millard, Jr., amicus curiae.

PER CURIAM -

The relator, in this original proceeding, seeks a writ of mandate to compel the acting commissioner of the department of employment security to issue experience rating credits to it as a qualified employer. The stipulated facts are:

"IT IS HEREBY AGREED AND STIPULATED by and between the relator and the respondent, by and through their respective counsel herein, that the above entitled proceeding shall be submitted to the court upon the following statement of facts.

"(1) The Association of Washington Industries is a corporation organized under the statutes of the State of Washington with its principal place of business located in Seattle Washington; that it is a qualified employer as defined by the unemployment compensation statutes of the State of Washington and has been issued account number 63228 by the Employment Security Department.

"(2) The Employment Security Department is a state agency established to administer the Employment Security Act of the State of Washington; that Otto S. Johnson is its duly Acting Commissioner and as such is a state officer.

"(3) By chapter 50, Laws of 1947, and amendments (Chapter 50.28 , RCW), the legislature of the State of Washington directed the Department of Employment Security to compute the surplus in the Unemployment Compensation Fund according to a statutory formula and to credit to each qualified employer his portion of such surplus. Since 1947 experience rating credits have been issued in the following amounts:

"(4) After the department determined on June 30, 1957 that there existed a surplus of $12,049,485, it issued experience rating credits according to statutory formula to 45,937 qualified employers as of said date for application against contributions payable on wages paid in credit year July 1, 1957 to June 30, 1958, and reported not later than July 31, 1958.

"(5) There remained on June 30, 1959, $249,063.41 of the experience rating credits issued on June 30, 1957, which had not been claimed and used by employers against contributions which were payable on

 June 1960]     STATE EX REL. ASS'N ETC. v. JOHNSON. 409

any wages paid by them in credit year July 1, 1957 to June 30, 1958 and reported not later than July 31, 1958, being the date prescribed by the Commissioner for payment of contributions on wages paid in last quarter of the credit year ending June 30, 1958.

"(6) In computing surplus on June 30, 1959 for credit year July 1, 1959 to June 30, 1960, the department made the following computation of the amount of monies in the Unemployment compensation Fund:
Balance in UC Fund-June 30, 1959      $197,083,858.35
Less:
Appropriated 'Reed Bill' Funds           2,187,491.76

Net Balance UC Fund-June 30, 1959.           $194,896,366.59
Deductions:
A. 1957-1958 E.R.C. ... $ 249,063.41

1958-1959 E.R.C. ...          none
      Total unliquidated
      E.R.C                          $ 249,063.41
B. Total Contributions
      Paid Applicable to
      Calendar Year 1958,
      as of March 31, 1959 $47,505,737.30
      Statutory formula
      requirement                     x4
                                        $190,022,949.20

Total Deductions from UC Net Balance           $190,272,012.61

Surplus available under Statutory Formula           $ 4,624,353.98
To be distributable, surplus
must be 10% of contributions
paid applicable to calendar year
1958, as of March 31, 1959.
      10% of $47,505,737.30 (above)           $4,750,573.73
      Surplus (above)                               4,624,353.98

Additional money needed in surplus to issue
     experience rating credits                     $ 126,219.75

"(7) That a study by the department of the source of unliquidated experience rating credits deducted under A in Par. VI shows the following as of September 30, 1959:
Category                              No. of Accounts      Amounts
(1) Employer liquidation                     91      $ 9,556.37
(2) Employer bankruptcy                     101      8,423.28
(3) Discontinuance of business by employer 2252      130,444.36
(4) Reduction of payroll                     922      97,168.00
                                              3366      $245,592.01

 410    STATE EX REL. ASS'N ETC. v. JOHNSON. [56 Wn. (2d)

items involving less than $5.00 in credits eliminated from study                               $ 3,246.11

"(8) That if deduction A in Par. VI was not made, surplus would be $4,873,417.39 and experience rating credits for credit year July 1, 1959 to June 30, 1960, would be issued in that amount to approximately 50,000 qualified employers in the State of Washington to be applied against contributions payable on wages for such period and reported not later than July 31, 1960."

The relator states that the question involved is:

"In computing 'surplus' in the unemployment compensation fund on June 30, 1959, should the Acting Commissioner subtract, as 'outstanding as valid', certain experience rating credits which the law provides can only be applied in payment of contributions payable on wages paid in year July 1, 1957 to June 30, 1958 and reported not later than July 31, 1958?"

The respondent contends that, under the facts of this case, mandamus does not lie. We agree.

RCW 50.28.060 provides in part:

"Any employer dissatisfied with the amount of credit shown on his credit notice . . . may file a request for adjustment with the commissioner within thirty days of the mailing of such credit notice to the employer, . . . Should such request for adjustment be denied the employer may . . . file with the appeal tribunal a petition for hearing . . . The appellate procedure prescribed by this title for further appeal shall apply to all denials of adjustment."

RCW 50.32.180 provides:

"The remedies provided in this title for determining the justness or correctness of assessments, refunds, adjustments, or claims shall be exclusive and no court shall entertain any action to enjoin an assessment or require a refund or adjustment except in accordance with the provisions of this title. Matters which may be determined by the procedures set out in this title shall not be the subject of any declaratory judgment."

The legislature has provided in the employment security act an appeal procedure to the commissioner, to an appeal board, and, thereafter, to the courts. RCW 50.32 .

[1, 2] Mandamus is an extraordinary proceeding. A writ will issue only when there is no plain, speedy or adequate remedy at law. Edwards v. Tremper, 49 Wn. (2d) 677 , 305

 June 1960]     STATE EX REL. ASS'N ETC. v. JOHNSON. 411

P. (2d) 1062 (1957). When an adequate administrative remedy is provided, it must be exhausted before the courts will intervene. Sunny Brook Farms v. Omdahl, 42 Wn. (2d) 788 , 259 P. (2d) 383 (1953). See Mulhausen v. Bates, 9 Wn. (2d) 264 , 114 P. (2d) 995 (1941); Louis Eckert Brewing Co. v. Unemployment Reserves Comm., 47 Cal. App. (2d) 844, 119P. (2d) 227 (1941).

[3] In the instant case, the agreed facts do not establish that the administrative remedy was inadequate. The relator did not pursue its administrative remedies. Applying the established law to the instant proceeding, a writ of mandate cannot issue.

Relator contends that, because the respondent has not issued a formal order announcing his finding that the surplus was insufficient to allow experience rating credits, there was no order from which it could appeal, and that, therefore, relief by mandamus is the only remedy available.

[4] We find no merit in this contention. The relator received a letter from the acting commissioner in which it was apprised of the commissioner's determination that the surplus was insufficient to warrant the allowance of rating credits. The letter was not a formal order. It was, however, sufficient evidence of the commissioner's intention to deny rating credits for the relator to test the "justness or correctness" of the determination through the use of the statutory administrative remedies. See New Model Laundry v. Employment Security Department, 35 Wn. (2d) 598 , 214 P. (2d) 209 (1950). The legislature has provided that the administrative remedies established under the act are exclusive. RCW 50.32.180 , supra.

[5] Finally, should the relator elect to pursue its administrative remedies, the thirty-day time limitation set out in RCW 50.28.060 , supra, is not a bar to a request for an adjustment, for the reason that the time limitation prescribed in the quoted section starts to run from the date a formal rating credit notice is given, when rating credits are authorized.

For the reasons stated, the writ is denied.