It is claimed by the respondent that the provision that the authorities granting the license shall have full authority and power to declare the license forfeited for violation of any of the terms upon which it is granted makes the mayor and council a judicial or quasi judicial body, and that, before such body may declare a forfeiture, it must find, upon facts properly presented, that the terms upon which the license was issued have been violated. If the provision relied upon were supported by legislation providing rules or means by which the question of fact should be determined, the intention of the Legislature would thereby be manifest, and it would then be clear that the Legislature intended that, before a license might be revoked, the mayor and city council should find the facts which authorized it to revoke the license. In such case, of course, the mayor and city council would act judicially in determining the questions of fact. But it is conceded that there is no statute prescribing a procedure by which the mayor or council may determine these facts. Inasmuch as the mayor and council of the city are a legislative body and not judicial, and inasmuch as no rules have been enacted providing for a judicial determination of the questions of fact, and inasmuch as the mayor and city council are given the sole and exclusive au thority and power to prohibit the sale and disposal of intoxicating liquors, we are of the opinion that the Legislature intended that such facts should be taken notice of by that body without any formal hearing or trial. In other other words, a a resolution regularly passed declaring the forfeiture of a license granted by that body is a legislative act and not a judicial function. Spring Valley Waterworks v. Bryant, 52 Cal. 132; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65. Such resolution is none the less legislative because the mayor and council may have to satisfy themselves that the state of facts exists under which they feel impelled to pass such resolution. The policy of a city, as of a state, is manifested by legislation, which is enacted by reason of facts or conditions which, in the minds of the lawmaking power, demand such legislation, which facts the legislative power takes notice of without judicial determination. But, assuming that the mayor and city council exercised a judicial function, we are still of the opinion that their action in this respect is not reviewable, especially as regards the jurisdiction or procedure adopted. Section 2934, supra, provides that the mayor and council of each incorporated city shall have the sole and exclusive authority and power to regulate, restrain, license, or prohibit the sale of intoxicating liquors within the corporate limits of the city. This means that the

matters of this kind, which discretion is final and conclusive, and therefore cannot be reviewed by the courts. Ryan v. Handley, (Wash.) 86 Pac. 398. In Wallace v. Mayor, etc., of Reno, 27 Nev. 71, 73 Pac. 528, 63 L. R. A. 337, 103 Am. St. Rep. 747, it was held, under a statute very much like ours, that the mayor and council may act ex parte and arbitrarily in matters of this kind, and that their act was not reviewable, and it was there said, quoting from note 2, § 363. of 1 Dillon on Mun. Corp. (4th Ed.), that “Licenses to sell liquors are not contracts between the state and the person licensed, giving the latter vested rights, and partaking of the nature of contracts, but are merely temporary permits to do what would otherwise be an offense, issued in the exercise of police powers, and subject to the direction of the government, which may revoke them as it deems fit." Many authorities are there cited. This seems to be the general rule upon the subject.

We are therefore of the opinion that the superior court is without jurisdiction to review the action of the mayor and council in revoking the license, and, inasmuch as there is no adequate remedy by appeal, the writ prayed for is therefore granted.

DUNBAR, HADLEY, CROW, and ROOT, JJ., concur.

(44 Wash. 581)

BAILEY V. MUKILTEO LUMBER CO. (Supreme Court of Washington. Dec. 6. 1906.) 1. MASTER AND SERVANT-INJURIES OF SERVANT ASSUMPTION OF RISK-OBVIOUS PERIL.

A servant, particularly an unskilled operator, in a large concern, will not be charged with an assumption of risk of the place where he is directed to work, unless the peril is so apparent that there could be no conflicting opinion between men of ordinary prudence and understanding.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 610-624.] 2. SAME-CONTRIBUTORY NEGLIGENCE - EVIDENCE-SUFFICIENCY.

In an action by an employé for personal injuries, evidence held to show contributory negligence, so as to require a nonsuit.

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by W. F. Bailey against the Mukilteo Lumber Company. From an order granting plaintiff a new trial, defendant appeals. Reversed, with instructions to dismiss the case.

Cooley & Horan and Brownell & Coleman, for appellant. Hulbert & Bundy and McMurchie & Locke, for respondent.

DUNBAR, J. Undertaking to abbreviate the respondent's statement of this case, which we think is practically justified by the testimony, respondent was employed by appel

lant in its sawmill as helper on the splitter deck. "Splitter deck" is the term used for that portion of the mill in which logs too large for convenient handling in the mill proper are sawed lengthwise into quarters. The equipment of the splitter deck consisted of a saw carriage with a slot in the middle running through its length. Through this slot there ran a band saw. The operation of the splitter device consisted of the rolling of a log on the carriage so that its diameter was directly over the slot, and sawing the log lengthwise. cutting it into halves, with the exception that the saw was stopped 12 or 18 inches from the end, leaving an unsawed length to hold the log together during further operations. The log was then turned and sawed again, so that it would be quartered, again leaving an unsawed portion at the end. A chain was passed about the middle of the log, and by this means the log was rolled from the carriage through the open side of the mill and into a chute; thence into the water below. The splitter deck, at the time of respondent's injury, was operated by one Fox, the sawyer, and respondent. At the time of the accident an unusually large log, with a crook or "belly," had been split into quarters. The chain was then passed under the log for the purpose of rolling it off the carriage and into the chute. By reason of the shape of the log the chain could not be placed under its exact middle, but had been placed beneath one end. The drum was then started, but by reason of the sag in the log it slued around; one end remaining on the carriage, and the other lodging against a timber running along the outside edge of the deck. The deck at this point was 32 feet above the water, and there was no railing or guard upon its edge. Finding it impossible to roll the log out while in this position, it became necessary to straighten it, so that it would be parallel with the carriage and with the edge of the deck. When the log became lodged, Fox, the sawyer, came down to examine the situation, and attempted to move the end of the log. which was resting on the carriage, with the chain, while the other end was held fast to the timber at the edge of the deck. After arranging the tackle, he went back to his station and tightened up on the chain. The only effect was to raise the outside end, which was braced against the timber, so that it rested on the top of the timber. He again came down and said it would be necessary to take the log off with the jack. Respondent took the jack and started to place it against the end of the log, and Fox told him that that would split the log. Fox then took the jack and placed it against the side of the log. between the log and the outside edge of the deck, at a point 2 or 3 feet from the end. He then told respondent to operate the jack while he went up and loosened the chain, which the respondent did. When the log slipped off the timber, the jar caused one quarter to break away and spring out in such

a manner as to knock the respondent off into the water below, thereby receiving the injury complained of. This statement is substantially testified to by the respondent; the only testimony being that of the respondent and of Fox, the sawyer, who was called by the respondent. At the close of the testimony the appellant made a formal motion for nonsuit. After considerable consideration by the court, the nonsuit was granted. A motion was afterwards made for a new trial, and the court determined that the nonsuit had been improperly granted, and granted respondent a new trial. From the order granting a new trial, the defendant appealed.

The contention of the appellant is that the respondent and Fox, the sawyer, were fellow servants, that the risk of the place in which he worked was assumed by the respondent, and that he was guilty of contributory negligence. Lengthy and elaborate arguments are made in the briefs of respective counsel on the subject of assumption of risk. The doctrine of assumption of risk is a difficult one to apply to an ordinary laborer in a mill or factory of any kind, for it must be considered with reference to another rule, which is obviously a just rule, viz., that the servant, when directed by the master to work in a certain place, has a right to assume that he will not be exposed to unnecessary perils, or, in other words, that such a direction or order implies an assurance of reasonable safety. This must be true if it is the duty of the master to furnish a reasonably safe place, a proposition which is undisputed, and the servant has a right to assume that the master will do his duty, which is equally well established. It must be apparent to any one who reflects upon the situation that operatives, in large concerns especially, are not expected by their employers, when they are ordered here and there, to spend any time in examining the safety of the place in which they are ordered to work, but are expected to obey with alacrity; and this ready obedience is necessary for the systematic operation of the business, and frequently for the safety of others. In addition to this, it is a matter of common observation that the common, unskilled man is not accredited with the capacity to determine the question of the safety of the place, but that such investigation and determination is made by or for the master when the general scheme or plan of operations is conceived and adopted. Any other theory in law would be harsh and unjust. Hence the courts generally have decided that the servant will not be charged with assuming the risk of a place, unless the peril is so apparent that there could be no conflicting opinion between men of ordinary prudlence and understanding; and when this appears plainly, and then only, it becomes the duty of the court to hold that as a matter of law the risk was assumed.

But this case, it seems to us, falls more

The

lation of the respondents H. B. Howe and H. P. Walker, to obtain a writ of mandate directed to Thomas Kendall, as mayor of the town of Port Orchard, a city of the fourth class, and S. H. Livingstone and C. P. Ainsworth, as members of the common council of said town, to compel them, and each of them, to sit as a board of canvassers of election returns and issue certificates of election to the relators, and each of them, as members of the common council of said town. Various alternative writs of mandate were issued in the proceedings moved against by the appellants, and quashed by the court. The third alias alternative writ of mandate and the affidavit upon which it is founded, designated as the "third amended affidavit," is the one which is under consideration. third alias alternative writ is in the same language as the third amended affidavit on which it was issued, and; in substance, alleges as follows: That the town of Port Orchard is a town of the fourth class; that the relators are citizens, residents, and qualified electors, etc.; that Thomas Kendall is the mayor of the town; that Livingstone and Ainsworth, together with one Radey, are the qualified and acting members of the common council and a majority of all of said common council; that they and the mayor constitute the board of canvassers of the returns of the city election held in said town on the 5th day of December, 1905; that they are the board required by law to issue certificates of election to persons duly elected, etc.; that, at a city election duly, legally, and regularly held in the said town of Port Orchard on the 5th day 0 December, 1905, the relators were duly elected, having duly and regularly received a majority of all the votes cast by the duly qualified electors of said town for said officers, setting forth the regularity and legality of the election, etc.; that, notwithstanding the election of the relators and the rights of the relators and of the public, the mayor and city councilmen mentioned wholly failed, neglected, and refused to perform their public duty and to canvass the returns of said city election, or to sit as a board of canvassers of the returns thereof, or to declare the relators duly elected as members of the council, or to issue a certificate of election to them as members of the council, although they had duly demanded the said action on the part of the mayor and council. This is the substance of the affidavit, although it is set out with great circumstantiality. To the third alias alternative writ the appellants filed a demurrer, on the grounds of the defect of parties plaintiff, defect of parties defendant, and that the writ did not state facts sufficient to constitute a cause of action or proceeding or to entitle the relators, or either of them, to any relief. The demurrer was overruled, exceptions were taken, and the peremptory writ of mandate issued. From this order and judgment of the superior court, ap

pellants have appealed, and assigned as errors the grounds of the demurrer just noticed.

There was no defect of parties plaintiff. There was a common right to both of the relators to compel the canvassing of the election returns. Two actions to determine the same common question would simply have been a multiplicity of suits, which the policy of the law avoids when possible. This kind of an action was sustained by this court in State ex rel. King v. Trimbell, 12 Wash. 440, 41 Pac. 183.

Neither was there a defect of parties defendant. The law provides, section 3521, Pierce's Code: "The council shall judge of the qualifications of its members and of all election returns, and determine contested elections of all town officers," and it was the council that the writ ran against, and all of the council that the affidavit recognized. Whether the two alleged members were actually members of the council was one of the issues raised by the petition. In any event, under section 1420, Pierce's Code, the service upon a majority of the board would have been sufficient. The mayor was a proper party to the proceeding. He is made by law the presiding officer of meetings of the board, and, as presiding officer, the duty was enjoined upon him, as well as upon the others, to canvass the election returns, and issue certificates of election to these relators if the allegations of the affidavit are true.

There can be no question that mandamus was the proper proceeding in this case. If the council in the exercise of the duty that is imposed upon it by the writ is acting in a ministerial capacity, then certainly the writ will lie, for it is the special office of a writ of mandate to compel a ministerial officer to perform the duties of his office. If it is of a quasi judicial character, a discretion which cannot be reviewed by the courts, nevertheless the council can be compelled, through the medium of a writ of mandate, to exercise that discretion, and that is what was attempted in this case. "The writ will be granted to compel the common council of a municipal corporation to receive and count the vote of a member of the council duly elected and qualified, and to permit him to exercise the duties of his office." High on Extr. Legal Rem. (3d Ed.) § 402, and cases. cited; State ex rel. King v. Trimbell, supra. It was said by this court in State ex rel. Brown v. McQuade, 36 Wash. 579, 583, 79 Pac. 207, that mandamus is a procedure under the Code, and that any person who has a cause that calls for its invocation has the same right to sue out the writ as he has to commence a civil action to redress a private wrong; that it is nothing more than one of the forms of procedure provided for the enforcement of rights and the redress of wrongs; that the facts stated in the affidavit for the writ might be controverted by a return, raising both questions of law and fact; that the return likewise might be contro

verted, and a trial had on the issues of fact thus raised, either before the court, a jury, or a referee; that judgment could be entered on the verdict or findings not only directing the issue of a peremptory mandate, but for damages and costs upon which execution might issue. And this case disposes of the final contention of the appellants that costs should not have been awarded in this case against the mayor and councilmen.

From an examination of the affidavit upon which the writ is based, we are satisfied that no error was committed by the trial court in overruling the demurrer to the same. The judgment will be affirmed.

Where a case had been three times continued, and, on application for a fourth continuance for absence of one of the defendants, the affidavit set out at length his expected testimony and the plaintiff admitted that he would testify as stated in the affidavit and the other defendant was present and testified, the refusal of the continuance was not an abuse of discretion. [Ed. Note. For cases in point, see Cent. Dig. vol. 10, Continuance, § 147.]

2. APPEAL-HARMLESS ERROR-ADMISSION OF EVIDENCE-TRIAL DE Novo.

In an action for accounting where the case is tried de novo on appeal, incompetent evidence will not be considered and its introduction in the trial court is not ground for reversal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3648.]

3. TENDER-DEPOSIT IN COURT-ACCEPTANCE

-EFFECT.

In an action for an accounting, where defendants tendered and paid into court a certain sum, and, after judgment in favor of plaintiff ordering the deposit to be paid to plaintiff and applied on account of the judgment and after notice of appeal and the filing of a supersedeas bond, plaintiff received the deposit and gave his receipt therefor, this did not constitute an acceptance of the tender so as to defeat his right to recover the balance allowed by the judgment.

| to furnish the money, McCleary solicit business and make estimates on prospective contracts, and respondent was to have charge of the construction work. Respondent alleges that the net profits were to be equally divided among the three, after he had been paid at the rate of $5 per day for each day employed on contract work. When the case came on for trial, it appears that the only question involved was as to the allowance of the $5 per day to respondent, he maintaining that he was entitled to that upon all work, while appellants claimed that he was entitled to this allowance upon one certain contract only. The case was tried before the court without a jury. Findings and conclusions were made, and exceptions to material portions thereof properly taken by appellants.

One of the principal errors assigned is upon the action of the trial court in not granting appellants a continuuance on account of the absence of appellant White. It appears that when the case was first called for "setting," in October, 1905, it was continued at appellants' request, and was afterwards set for December 26th. When this day arrived, the court, being otherwise occupied, continued the case until after the holidays, at which time appellant White filed a motion for a further continuance, setting up as a cause his sickness and absence from the state. The case was then reset for January 30, 1906. On the 29th of January, appellants' attorney again asked for a continuance and filed in support thereof an affidavit of one of their attorneys, which referred to, and made a part thereof, a telegram and letter from one A. J. Bennett, claiming to be White's physician, and residing at Jamestown, N. Y., where White was at that time visiting. This telegram and letter were dated respectively the 11th and 12th of December, 1905. A second telegram from Bennett was also filed in the case. The letter and telegram were to the effect that White had been, and was, ill, and unable to make the trip from New York to Seattle at that time. The affidavit of the attorney set up at much length the evidence which it was claimed that appellant White would give if present. The respondent admitted in open court that said White, if present, would testify to all the matters set

Action by Harry T. Traynor against Willis N. White and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Blaine, Tucker & Hyland and F. R. Conway, for appellants. J. E. McGrew, for respondent.

ROOT, J. This was an action for an accounting. From a judgment in favor of respondent, this appeal is prosecuted.

Respondent and appellants entered into an oral agreement to engage in the business of general contracting and building. White was

upon denied the motion for a further continuance, and caused the parties to go to trial. Appellants urge that the admission by respondent that appellant White would testify as set forth in the affidavit was not sufficient to justify the court in going ahead with the trial; that, as White was a party to the action, the case stood upon a different basis from what it would if he were merely a witness, and urged that his personal presence was essential to the proper management of his case upon the trial. There is some force in this contention. Ordinarily the court will not go into a trial when one of the parties, on account of sickness or other unavoidable