I dissent.

This proceeding in mandamus was decided on the merits by the District Court of Appeal, is here pursuant to an order of transfer, and is now decided by this court likewise on the merits. The principal question, as I see it, is whether the statutory remedy of appeal to the commission after decision by the referee is an adequate remedy on behalf of petitioner in the light of the admitted facts and the proper construction of the statute. That the administrative remedy afforded by statute must be an adequate remedy is not disputed.

The rule of exhaustion of remedies does not require blind enforcement. It is an outgrowth of the rule that a petitioner may not invoke the extraordinary redress of the courts if he has another adequate legal remedy, exemplified in the rules governing the issuance of the writ of mandamus (sec. 1086, Code Civ. Proc.) and the writ of review (sec. 1067, Code Civ. Proc.). The basis of the rule excluding the petitioner from the redress sought is that his legal remedy is adequate. In contemplating the question of adequacy, realities as well as theories must be considered. This is the point at which I depart from the opinion of the majority.

In the petition for a writ of mandamus it is alleged that the commission has adopted a rule binding upon all the officers, referees, and employees of the commission charged with the administration of the act and the payment of benefits there *319 under. The alleged rule is to the effect that notwithstanding the provisions of section 56 (a) of the act, the commission will order and direct that unemployment benefits “be paid to employees belonging to one union who leave their work by reason of a trade dispute actually in existence at the establishment at which they are employed, where such trade dispute is evidenced by a strike and picket line declared, established and maintained by another union representing employees in the same establishment, and where the employees seeking benefits under the act have left their work and refused to return thereto, although their employment is available to them, by reason of sympathy with the striking and picketing union and with the union objectives of the trade dispute evidenced thereby.” It is also alleged that “Said rule has been kept in force and effect since June 29, 1939, and has been complied with by all officers, employees, deputies and referees, and said Commission and its officers, employees, deputies and referees have publicly and officially declared that said rule will be enforced in all cases submitted to them, or any of them, notwithstanding the express provisions of the Act, and particularly section 56 thereof.”

The commission denied that on or about June 29, 1939, or at any other time, it had “adopted” such a rule, but admitted that, through its adjustment unit, it had directed the payment of benefits to the members of Knitgoods Workers’ Union, Local No. 191, who refused to cross the picket line established by another union in the same establishment, but denied that the direction was pursuant to any rule “adopted” by the commission. The denial is captious in the light of the admission in the answer and the language of the opinion and decision of the referee in this very matter, a copy of which is attached to and made a part of the return to the alternative writ. The opinion so adopted contains the following statement : ‘ ‘ OPINION: The principle is settled by a long line of Commission decisions that the refusal of members of a union which is not engaged in any labor dispute with an employer to cross a picket line established by another union representing a different class of workers which is engaged in a trade dispute with an employer, is not sufficient to invoke the disqualification provided by Section 56 (a) of the Unemployment Insurance Act.” The opinion then cites twelve commission cases to that effect and follows with this positive announcement : ‘ ‘ These decisions are binding upon the Eeferee in t.bia *320 ease. ’ ’ It should here be noted that in the Bodinson ease the commission adhered to the same rule.

In the face of these admissions and allegations, it is certain that the commission would affirm the referee’s order. To admit and allege that it had uniformly ruled in favor of the allowance of benefits under the facts here disclosed is tantamount to an admission that the commission had adopted a rule on the subject. As stated by the referee, the rule was binding on him. ITe, therefore, had no discretion in the matter and must decide in accordance with what the commission had announced it would hold on any appeal from the referee’s decision. To conclude that an appeal under these circumstances would be an adequate remedy on behalf of petitioner, and that relief should be denied on that ground, would be to ignore the substance of the controversy.

Of course, the Bodinson case had not been decided by this court at the time the respondents filed their answer and return. As the matter then stood, the petitioner was, in my opinion, entitled to the relief sought. However, in the light of our decision in the Bodinson case, the commission has no discretion or alternative except to set aside the referee’s order and deny payments which this court has decided would be illegal, if made.

Inasmuch as the official duty of the commission is thus so clearly indicated, the peremptory writ should, in my opinion be granted.

Ward, J., pro tem., concurred.