[347]EDMONDS, J. The purpose of this mandate proceeding is to compel the respondent city officials to fix a salary or wage for all of the city’s employees in certain classifications at least equal to the prevailing scale for similar employment in private industry. The appeal from the judgment of dismissal primarily presents for decision the question as to whether the proceeding is brought by a person or persons having the requisite beneficial interest.
According to the caption of the petition, the relief is sought by “Lester A. Parker, individually and as a member of, and Secretary Treasurer of, the Council of Federated Municipal Crafts of Los Angeles, California, a voluntary unincorporated association, and for and on behalf of the following members of said association, all of which are unincorporated labor organizations: United Brotherhood of Carpenters & Joiners of America, Local Union No. 2231; United Association of Plumbers and Steam Fitters, Local Union No. 78, Southern California District Council of Laborers; and Carpenters District Council of Los Angeles County, Petitioners. ’ ’
The petition is signed by Parker as “Petitioner” and by the “Attorney for Petitioners.” It is alleged that the “ [petitioner, Council of Federated Municipal Crafts” is an unincorporated association, Parker is its secretary treasurer, certain designated unions which are unincorporated associations are members of the council, and “the petitioner brings this action for and on behalf of himself individually and as Secretary Treasurer” of the council “and for and on behalf of” its affiliated unions “and the members thereof.”
The council, it is alleged, is “devoted to the improvement of the working conditions of the members of its affiliated unions, and to the stabilization of labor relations between the City of and County of Los Angeles, and the employees of said political subdivisions, and has as one of its aims and objectives the establishment and maintenance of reasonable standards for wages, hours, and working conditions of said employees, and the maintenance of industrial peace.” According to the pleading, the labor council represents those members of the affiliated unions who are working for the city and the county. It is stated that of 2,631 members of the United Association of Plumbers and Steam Fitters, 26 are employed by the city; of approximately 35,000 members of the Carpenters District Council the city employs over 250; [348]and more than 110 of about 11,000 members of the District Council of Laborers are municipal employees.
“Tour petitioners are the real parties in interest herein,” it is said, “since they represent a substantial part of the employees of the City of Los Angeles; that petitioner, the Council of Federated Municipal Crafts ... is the collective bargaining representative of practically every craft of employee of the City ... as well as” 28 listed unions. According to the petition, “the sole purpose of the activities of the petitioner, Council of Federated Municipal Crafts ... is to foster, promote, and develop the welfare of wage earners employed by the City ... to improve their working conditions and to advance their opportunities for profitable employment. ’ ’ Section 425 of the city charter provides: “In fixing the compensation to be paid to persons in the City’s employ, the Council and every other authority authorized to fix salaries or wages, shall, in every instance, provide a salary or wage at least equal to the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations, under similar employment, in case such prevailing salary or wage can be ascertained.”
According to the petition, “the respondents in fixing the compensation paid to the members of the ‘ affiliated Unions ’ ’ ’, made a survey of salaries and wages paid by private industry in the Los Angeles area. This survey, it is alleged, disclosed that the rates of pay in private industry were higher than those paid by the city, “in violation of Section 425.” The “respondents,” it is said, “had available data from which it could ascertain the prevailing salary or wage paid to persons under similar employment for the same quality of services rendered to private persons, firms or corporations, but respondents failed, neglected and refused to pay such prevailing salary or wages and refused to consider, or to take into consideration, such prevailing salary or wages in fixing the salaries or wages of the carpenters, laborers and plumbers.” It is alleged that “demand was made on respondents that in fixing the compensation to be paid to the members of the ‘affiliated Unions’ respondents provide for a salary or wage at least equal to the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations under similar employment; that at all times since . . . respondents have failed and refused t'o do so. ’ ’
“Petitioners have no plain, speedy or adequate remedy at law,” the pleading continues, “to compel the respondents [349]... to perform the public duty which they have under Section 425 of the City Charter . . . and there is no method except by means of this petition whereby the petitioners can question the . . . acts of respondents and secure complete adjudication of their rights and adequate and complete relief.” The “petitioners pray” that a writ of mandate issne commanding the respondents to provide a salary or wage “for all of its employees classified as laborers, carpenters and plumbers” at least equal to the scale prevailing in private industry.
By answer, the respondents 11 deny that the petitioner brings this action for or on behalf of himself either individually or as Secretary-Treasurer of the Council : . . and deny that the petitioner brings this action for or on behalf of the affiliated unions ... or on behalf of any members thereof or for or on behalf of anyone whomsoever.” It is also denied that the council “represents or can represent any members of the said affiliated unions as to their wages, hours and working conditions, or as to the settlement of grievances in connection with the employment of any of them by” the city, county, or various city agencies. The respondents also deny that the council “represents anyone collectively or otherwise either in bargaining for wages, hours or working conditions or otherwise in respect to his employment by any of the said governmental entities.”
, Other allegations of the answer are that a survey was made of salaries and wages paid in private industry. The information so obtained, it is said, together with other information. was considered by the members of the city council in reaching the decision that the salaries and wages paid to city employees are at least equal to those prevailing in private industry. According to the pleading, “none of the petitioners is a real party in interest herein, or is employed by the City of Los Angeles, or has any claim herein, nor is any of the petitioners the collective bargaining representative of any employee of” the city or its agencies.
By supplement to the answer, it is alleged that, since the commencement of the proceeding, the city council has amended the salary standardization ordinance. As now in effect, the ordinance fixes increased rates of compensation.
Upon the commencement of the trial, the respondents objected to the introduction of any evidence upon the grounds “that the petitioner, Lester A. Parker, is neither a real party • in interest nor a party beneficially interested” and that the [350]petition failed to state a cause of action. The court sustained the objection upon both grounds. Judgment was entered discharging the alternative writ, denying the petition and ordering that “the petitioners” take nothing. The notice of appeal recites that the “petitioners,” designated in the same manner as in the caption of the petition, appeal from the judgment.
In the briefs upon appeal, the use of the plural designation “petitioners” is, for the most part, abandoned, reference being made to the “petitioner and appellant” in most instances. However, sometimes the labor council is referred to specifically as the'petitioner and at other times the reference to “petitioner” appears to mean Parker. It is contended that the “petitioner,” apparently irrespective of whether Parker, or the council, or the affiliated unions be so designated, has the requisite beneficial interest and representative standing to maintain the proceeding and that the petition states a cause of action. It is also argued that the trial court erred in denying the “petitioner” the right to inspect the city’s survey records and to take the deposition of one Howard E. Earl.
The respondents contend that neither the unions nor Parker, whichever be deemed the “petitioner,” is a proper party to bring the proceeding and the petition fails to state a cause of action. According to them, the only reasonable interpretation of the petition is that Parker is the sole petitioner. They also argue that the orders claimed to be erroneous are not" reviewable upon this appeal.
It is impossible, either from the caption or the body of the petition, to determine with certainty who is intended to be the “petitioner” or “petitioners.” Apparently, it was Parker’s belief that, as an individual, he could bring a representative suit upon behalf of all city employees and, as an officer of the labor council, sue on its behalf. There is some indication that the named affiliated unions were not intended to be petitioners, but were considered as represented by the council’s action.
The respondents argue that the council cannot be deemed to be a petitioner because it is simply an affiliation of various unions. No individual city employee can be a member of the council. Also, the respondents say, neither the council nor the affiliated unions can be a petitioner because each is an unincorporated association incapable of suing in its own name,' The former contention raises the question of the [351]council's standing to maintain this proceeding; the latter challenges the capacity of the unions to sue.
Insofar as the question of capacity to sue is concerned, not having been raised by demurrer or answer, it must be deemed to have been waived and cannot now be urged upon appeal. (Code Civ. Proc., §§ 430, 434; Klopstock v. Superior Court, 17 Cal.2d 13, 17 [108 P.2d 906, 135 A.L.R. 318].) However, the question of standing to sue is different from that of capacity. Incapacity is merely a legal disability, such as infancy or insanity, which deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action. It is not a plea in abatement, as is lack of capacity to sue. Where the complaint states a cause of action in someone, but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained. (Klopstock v. Superior Court, supra, pp. 18-19.) This objection is not waived by failure to raise it by demurrer or answer, and may be raised at any point in the proceedings. (Code Civ. Proc., § 434.) Here, by the objection to the introduction of any evidence, it has been properly raised as to whomever may be considered the “petitioner” or “petitioners.”
“The granting of a writ of mandate is discretionary and it will be granted only where necessary to protect a substantial right and only when it is shown that some substantial damage will be suffered by the petitioner if said writ is denied.” (Ault v. Council of City of San Rafael, 17 Cal.2d 415, 417 [110 P.2d 379] ; May v. Board of Directors, 34 Cal.2d 125, 134 [208 P.2d 661]; Gay v. Torrance, 145 Cal. 144, 147 [78 P. 540].) “The writ of mandate will not be issued except upon affidavit on the application of the party beneficially interested. (Code Civ. Proc. § 1086.)” (Fritts v. Charles, 145 Cal. 512, 513 [78 P. 1057].) “The writ of mandate will not issue in a case where the plaintiff fails to show that it will subserve or protect some right or interest of his. . . . The writ will not lie ‘where it is apparent that the relator has no direct interest in the action sought to be coerced, and that no benefit can accrue to him from its performance. ’ ” (Ellis v. Workman, 144 Cal. 113, 115 [77 P. 822].)
Parker, as an individual, alleges no facts to show that he has any right or interest in the action sought to be commanded. He does not plead that he is an employee of [352]the city, nor even that he is a resident or taxpayer of the city. There is no indication that any benefit could accrue to him if the writ were issued, nor that he will suffer any detriment if it is denied.
The situation is clearly distinguishable from that in Hollman v. Warren, 32 Cal.2d 351 [196 P.2d 562], where the petitioner was both an applicant for appointment as a notary and a resident and taxpayer of the city and county. Under those circumstances, the majority of the court held that the petitioner had shown a proper interest to contest the validity of the statute under which the governor refused to consider her application. There, the petitioner had a direct interest in-securing consideration of her application in addition to her interest as a citizen in having a sufficent number of notaries commissioned to serve the needs of the public. In the present case, however, Parker cannot benefit directly by an increase in the pay scale of city employees. Neither has he alleged that he is a citizen interested in having the duty in question enforced.
Parker urges, however, that he has brought this proceeding as a representative suit on behalf of city employees who have a direct interest in the enforcement of the duty. He relies upon the provision of section 382 of the Code of Civil Procedure that, “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”
The statutory provision is based upon the doctrine of virtual representation and is an exception to the general rule of compulsory joinder of all interested' parties. (Weaver v. Pasadena Tournament of Roses Assn., 32 Cal.2d 833, 837 [198 P.2d 514].) It is a codification of “the common law theory of convenience to the parties when one or more fairly represent the rights of others similarly situated who could be designated in the controversy.” (Fallon v. Superior Court, 33 Cal.App.2d 48, 50 [90 P.2d 858].) “ [R]egardless of which of the alternative conditions of the statute is invoked as authorizing a class proceeding, it has been uniformly held that there must be a well-defined ‘community of interest’ in the questions of law and fact involved as affecting the parties to be represented.” (Weaver v. Pasadena Tournament of Roses Assn., supra; Jellen v. O'Brien, 89 Cal.App. 505, 509 [264 P. 1115].)
[353]No facts have been alleged to bring Parker within this well established rule regarding class suits. He does not claim to be a member of the interested class, and there is nothing to indicate that he is “similarly situated” with those whom he pretends to represent. There can be no “common or general interest” in the subject matter of the controversy (Weaver v. Pasadena Tournament of Roses, supra, p. 842) between Parker, who is not employed by the city, and city employees. Parker eamiot give himself standing to sue by purporting to represent a class of which he is not a member.
The cases upon which Parker relies for authorization of a representative action by an individual strengthen this conclusion. In each of them, the individual seeking to maintain the action on behalf of himself and others was a member of the class sought to be represented and raised questions of law and fact common to himself and other members of his class. (Wheelock v. First Presbyterian Church, 119 Cal. 477, 481 [51 P. 841], individual members of a church suing on behalf of all members to recover a fund of money; Weber v. Marine Cooks' & Stewards' Assn., 93 Cal.App.2d 327 [208 P.2d 1009], action by group of members of union on behalf of all members who chose to join with them for declaration of status of constitution and by-laws of the union; Ellis v. American Federation of Labor, 48 Cal.App.2d 440 [120 P.2d 79], members of three unions suing in a representative capacity to enjoin the revocation without a hearing of the charter of the Central Labor Council with which their unions were affiliated; Law v. Crist, 41 Cal.App.2d 862 [107 P.2d 953], members of a group teaching theosophy seeking to enjoin the use by a competing corporation of the name of their society; Peterson v. Donelley, 33 Cal.App.2d 133, 136-137 [91 P.2d 123], action for an accounting and the removal of trustees by one beneficiary of a trust upon behalf of some 3,000 beneficiaries with common interests; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 629 [63 S.Ct. 1178, 87 L.Ed 1622, 147 A.L.R. 674], members of a religious sect suing “for themselves and other similarly situated” to restrain enforcement of laws and regulations against their sect.)
Two of the decisions cited by Parker are not in point. In Allen v. Hotel & Restaurant etc. Alliance, 97 Cal.App.2d 343, 348 [217 P.2d 699], the court refused to consider the proceeding as a representative suit for the reason that the .preliminary injunction appealed from applied only to the named [354]plaintiffs and not to the members of the class whom they purported to represent. Dismissal of a class suit by members of a religious sect seeking to restrain threatened criminal prosecution was affirmed in Douglas v. Jeannette, 319 U.S. 157, 165 [63 S.Ct. 877, 882, 87 L.Ed. 1324], upon the ground, among others, that there was no showing of an identity of issues between the numerous members of the class.
Insofar as the council and its affiliated unions are concerned, whether one or all of them be assumed to be the petitioner or the petitioners, the same reasoning applies and compels the conclusion that none of them has standing to maintain this proceeding. No facts are alleged which show any right or interest of the unions in the action sought to be commanded. There is no indication that any benefit, except possibly the incidental one of satisfying a very small proportion of their members, could accrue to them if the writ were issued. Nor could they suffer any detriment if it is denied. At best, they can claim to act only on behalf of their members, since they cannot legally be affected by enforcement of the city’s duty. None of the unions can have the requisite beneficial interest in enforcing a duty owed by the city to its employees. (Funeral Directors Assn. v. Board of Funeral Directors & Embalmers, 67 Cal.App.2d 311, 313 [154 P.2d 39] ; cf. Associated Boat Industries v. Marshall, 104 Cal.App.2d 21, 23 [230 P.2d 379].)
The council argues that it is a “party beneficially interested” within the meaning of section 1086 under the rule laid down in Board of Soc. Welfare v. County of Los Angeles, 27 Cal.2d 98 [162 P.2d 627]. That case, however, must be limited strictly to the facts upon which it was based. By statute, the Board of Social Welfare was “designated as the single State agency with full power to supervise every phase of the administration of the public assistance plans for which grants-in-aid are received from the United States Government in order to secure full compliance with the provisions of Title 1 and 4 of the Federal Social Security Act.” (Welf. & Inst., Code, § 103.5.) In upholding its right to sue, the court said: “Generally, when a power or duty is imposed by law upon a public board or officer, and in order to execute such power or perform such duty, it becomes necessary to obtain a writ of mandamus, it or he may apply for the same.” (P. 101.) Because of its statutory duty, it was held to be “a proper party to maintain mandamus proceedings against county officials who fail or refuse to issue a war[355]rant to a needy aged person who is a member of a class entitled thereto.”
Here, however, there is no statutory duty of supervision or representation placed upon the unions. They are not public boards but private organizations created to foster the diverse personal interests of their members. As purported representatives of city employees in negotiations with the city, they have no legal standing. The city has no duty to bargain collectively or contract with the unions. (Nutter v. City of Santa Monica, 74 Cal.App.2d 292, 303 [168 P.2d 741].) In fact, it may not do so to the extent that the conditions of employment usually arranged by contract are covered by the provisions of the city charter. (City of Los Angeles v. Los Angeles etc. Council, 94 Cal.App.2d 36, 46-47 [210 P.2d 305].) For these reasons, the unions cannot bring themselves within the rule of the Board of Social Welfare case.
Relying upon Denver Bldg. & Constr. Trades Council v. Vail, 103 Colo. 364, 368-369 [86 P.2d 267], the labor council argues that a union has sufficient interest in the enforcement of prevailing wage legislation to maintain this proceeding. In that case, a Colorado statute provided that contractors constructing public works must pay the prevailing rate of wages to their employees. Prevailing rates were to be stated in the invitation for bids, and disputes were to be adjusted by the Industrial Commission. The union, which was the collective bargaining agent with contractors for employees in the construction industry, sought an injunction to restrain the state highway engineer from opening certain construction bids. It claimed that the rate in the invitation to submit bids was not the prevailing wage rate and that the dispute should be submitted to the Industrial Commission. At the time suit was commenced, there were neither contractors nor employees for the particular projects involved. The court construed the statutory purpose to be the avoidance of the delays and losses which would result from wage controversies arising during the construction of public works. It concluded that, under the peculiar circumstances existing, the only practical solution to achieve the legislative intent was to hold that the union had a sufficient interest in the subject matter to maintain the proceeding.
The situation here is in no way similar to that in the Denver Trades Council ease. The labor council cannot be the collective bargaining agent for municipal employees. In the present case, there are employees with a present interest [356]in the subject matter of the action. The city charter is vastly different from the Colorado statute in its objective. There is no purpose to be served by a holding that the union may maintain the action, since a sufficient interest reposes in others to seek compliance with the intent of the charter. In the absence of any similarity between the facts pleaded by Parker and the peculiar circumstances of the Denver Trades Council case, it is not persuasive in determining the present controversy.
Likewise distinguishable for the same reasons is El Paso Bldg. & Constr. Trades Council v. Texas Highway Com., (Tex.Civ.App.) 231 S.W.2d 533, 536-538, which arose upon facts substantially similar to those of the Denver Trades Council ease and followed that decision. It is also noteworthy that the Texas Supreme Court reversed the judgment of the Court of Civil Appeals in the El Paso case upon the ground that the action of the highway commission was not subject to review and refused to discuss the question of the union’s standing to sue. (Texas Highway Com. v. El Paso Bldg. & Constr. Trades Council, 149 Tex. 457, 468 [234 S.W.2d 857].)
Equally without merit is the council’s contention that it is a proper party to bring a representative suit. Neither it, nor its affiliated unions, are members of the class sought to be represented. Indeed, only a very small number of the members of the affiliated unions are city employees, and there is no allegation that any of them is employed by a department for which the wage and salary scale is established by the city council. For all that appears, it well may be that none of the members of the affiliated unions is a member of the class which is supposedly being represented.
The decisions from other jurisdictions upon which the labor council relies as stating the proposition that a union may maintain a representative action upon behalf of its members are not in point. United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 392 [42 S.Ct. 570, 66 L.Ed. 975], determined that a labor union, an unincorporated association, could be sued in accordance with the provisions of a federal statute. No question was raised as to the propriety of the association’s bringing an action in a representative capacity. In Hague v. Committee for Industrial Organizations, 307 U.S. 496, 514 [59 S.Ct. 954, 83 L.Ed. 1423], the court held that only the individual plaintiffs, and not the labor organizations, could maintain a suit for protection of their civil rights.
[357]Stapleton v. Mitchell, 60 F.Supp. 51, involved an action brought by labor unions and individuals, acting in both individual and representative capacities, to test the validity of a Kansas labor statute which purported to regulate the activities of both the organizations and the individuals. The unions and the individuals all had a direct interest in the enforcement of the statute. There was no question presented concerning the right of a union to sue on behalf of some of its members in a matter in which it had no immediate interest. Again, in Brotherhood of S. Engineers v. City of St. Louis, (Mo.App.) 212 S.W.2d 454, 458, the union had a direct interest in challenging an ordinance which allegedly deprived it of its statutory right. Thus it was permitted to join with individual plaintiffs a number of its officers and members, although its interest was not identical to that of its members. There is no indication in the opinion that it purported to act in a representative capacity.
Regardless of who may be considered the petitioner or petitioners in this case, it is obvious that none of the parties named in the petition can have any standing to maintain this proceeding. It is, therefore, unnecessary to consider other points presented.
The judgment is affirmed.
Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.