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shall have full authority and power to declare , city authorities are given a discretion in it forfeited for the violation of any of the matters of this kind, which discretion is terms upon which it is granted."

final and conclusive, and therefore cannot be It is claimed by the respondent that the reviewed by the courts. Ryan v. Handley, provision that the authorities granting the (Wash.) 86 Pac. 398. In Wallace v. Mayor, license shall have full authority and power etc., of Reno, 27 Nev. 71, 73 Pac. 528, 63 L. to declare the license forfeited for violation R. A. 337, 103 Am. St. Rep. 747, it was held, of any of the terms upon which it is granted under a statute very much like ours, that makes the mayor and council a judicial or the mayor and council may act ex parte and quasi judicial body, and that, before such arbitrarily in matters of this kind, and that body may declare a forfeiture, it must find, their act was not reviewable, and it was upon facts properly presented, that the there said, quoting from note 2, § 363. of terms upon which the license was issued have 1 Dillon on Mun. Corp. (4th Ed.), that "Libeen violated. If the provision relied upon censes to sell liquors are not contracts bewere supported by legislation providing rules tween the state and the person licensed, or means by which the question of fact giving the latter vested rights, and partaking should be determined, the intention of the of the nature of contracts, but are merely Legislature would thereby be manifest, and temporary permits to do what would otherit would then be clear that the Legislature wise be an offense, issued in the exercise of intended that, before a license might be re- police powers, and subject to the direction of voked, the mayor and city council should find the government, which may revoke them as the facts which authorized it to revoke the it deems fit.” Many authorities are there license. In such case, of course, the mayor cited. This seems to be the general rule upand city council would act judicially in de- on the subject. termining the questions of fact. But it is We are therefore of the opinion that the conceded that there is no statute prescribing superior court is without jurisdiction to rea procedure by which the mayor or council view the action of the mayor and council may determine these facts. Inasmuch as in revoking the license, and, inasmuch as the mayor and council of the city are a legis- there is no adequate remedy by appeal, the lative body and not judicial, and inasmuch writ prayed for is therefore granted. as no rules have been enacted providing for a judicial determination of the questions of DUNBAR, HADLEY, CROW, and ROOT, fact, and inasmuch as the mayor and city | JJ., concur. council are given the sole and exclusive au thority and power to prohibit the sale and disposal of intoxicating liquors, we are of

(44 Wash. 581) the opinion that the Legislature intended that

BAILEY V. MUKILTEO LUMBER CO. such facts should be taken notice of by that (Supreme Court of Washington. Dec. 6. 1906.) body without any formal hearing or trial. 1. MASTER AND SERVANT-INJURIES OF SERYIn other words, a resolution regularly ANT-ASSUMPTION OF RISK—OBVIOUS PERIL.

A servant, particularly an unskilled operapassed declaring the forfeiture of a license

tor, in a large concern, will not be charged with granted by that body is a legislative act and

an assumption of risk of the place where he is not a judicial function. Spring Valley Wa

directed to work, unless the peril is so apparterworks v. Bryant, 52 Cal. 132; Grider v.

ent that there could be no conflicting opinion

between men of ordinary prudence and underTally, 77 Ala. 422, 54 Am. Rep. 65. Such

standing. resolution is none the less legislative because

[Ed. Note.For cases in point, see Cent. Dig. the mayor and council may have to satisfy vol. 34, Master and Servant, $$ 610-624.] themselves that the state of facts exists un- 2. SAME-CONTRIBUTORY NEGLIGENCE -- DVIder which they feel impelled to pass such DENCE-SUFFICIENCY. resolution. The policy of a city, as of a

In an action by an employé for personal

injuries, evidence held to show contributory neg. state, is manifested by legislation, which is

ligence, so as to require a nonsuit. enacted by reason of facts or conditions which, in the minds of the lawmaking power,

Appeal from Superior Court, Snohomish demand such legislation, which facts the County; W. W. Black, Judge. legislative power takes notice of without Action by W. F. Bailey against the Mukiljudicial determination. But, assuming that

teo Lumber Company. From an order grantthe mayor and city council exercised a ju

ing plaintiff a new trial, defendant appeals. dicial function, we are still of the opinion

Reversed, with instructions to dismiss the that their action in this respect is not re

case. viewable, especially as regards the jurisdic- Cooley & Horan and Brownell & Coleman, tion or procedure adopted. Section 2934, for appellant. Hulbert & Bundy and McMursupra, provides that the mayor and council chie & Locke, for respondent. of each incorporated city shall have the sole and exclusive authority and power to DUNBAR, J. Undertaking to abbreviate regulate, restrain, license, or prohibit the

the respondent's statement of this case, which sale of intoxicating liquors within the corpo- we think is practically justified by the testirate limits of the city. This means that the mony, 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 quarterel, 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 Testaandent's injury, was operated by one Fox, the sawyer, and respondent. At the time of the accident an unusually large log, with a (look 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 elge of the deck. The deck at this point was 32 feet above the water, and there was no railing or guard upon its elge. 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 edige 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 (hain, 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 neg. ligence. Lengtby 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 prulence and understanding; and when this appears plainly, and then only, it lecomes 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

nearly within the rule of contributory negli

(44 Wash. 542) gence. It must be seen at a glance that the STATE ex rel. HOWE et al. v. KENDAL, place where the respondent was operating

Mayor, et al. the jack was a very dangerous place, and (Supreme Court of Washington. Dec. 4, 1906.) that, if the log split and flew apart, there 1. MANDAMUS-PROCEEDINGS-PARTIES PLAINvould be no probable way by which the TIFi'. respondent could escape injury. He had

Two persons claiming to have been elected

members of the council of a city might unite Worked on the splitter deck three weeks,

in mandamus proceedings to compel the mayor and testified that he had learned all there and councilmen to canvass the returns and issue

certificates of election to relator's. was to learn about the work on the first day of his employment. The testimony shows

[Ed. Yote.--For cases in point, see Cent. Dig.

vol. 33, Mandamus, $ 290.] that the respondent used some dogs which

2. SAME-SERVICE OF WRIT-SUFFICIENCY. were furnished to him to keep the logs from

Under Pierce's Code. $ 3521, providing that splitting; that he knew their use, and fre- the council of a city shall judge of all election quently used thein for that purpose. lle also returns and determine contested elections, and

section 1420, providing, in relation to mandatestified that logs frequently slid around the

mus, that service upon a majority of any public way this log did. If the dogs had been board shall be sufficient service on the board, used by him at this time, it would have in mandamus by one claiming to have been electbeen impossible for the log to have split

ed a councilman, to compel the mayor and coun

cilmen to canyiss the election, etc., service on and the quarters to lave detached themselves.

a majority of the members of the council was He was familiar with the work, and looked sufficient. if'ter the details or minutiæ of the work, D. Wote.--For cases in point, sce Cent. Dig. and, having the appliances at hand and be

vol. 33, Mandamus, $ :20.] ing familiar with their use, as he testified

3. SAME--PARTIES DEFENDANT.

Where the mayor of a city was by law that he was, he saw fit to take chances on

the presiding officer of meetings of the council the splitting of the log, when he could have

and the council was required to canvass all prevented it by a slight precaution. It is election returns, the mayor was a proper party plementary that, if there are two ways in

to proceedings in mandamus by one claiming

to have been elected a councilman to compel which work can be done, one a safe way

a canvass of the election returns, etc. and the other a dangerous way, and the TEd. Wote.- For cases in noint, see Cent. Dig. Operative chooses the dangerous, instead of vol. 33, Mandamus, $$ 291-293.] the safe, way, he cannot complain if he is 4. SAME SUBJECTS OF RELIEF - PUBLIC injured. It is useless to discuss and analyze BOARDS-ELECTIONS.

Where it is the duty of tl:e mayor and coun: the multitude of cases that have been decided

cilmen of a city to canvass city elections and ison this question by both this and other

sue certificates of election, mandamus will lie courts. In this case, having the means at on the relation of one claiming to have been hand to protect himself and neglecting to use

elected to a city office to compel them to can

vass an election and issue certificates of elsuch means, we think respondent cannot

tion to the proper persons. rightfully charge the disaster to his employ- Ed. Note. For cases in point, sre Cent. Dig. er. The court, in passing upon the question vol. 33, Mandamus, $$ 150-157.] at the time the nonsuit was granted, said: 5. SAME--COSTS. *The dangers, if any, were in the splitting

Where the mayor and councilmen of a of the log. That was a matter that was

city refused to canvass a city election and issue

certificates of election to the proper persons, peculiarly, I think, in this case within the

on the issuance of a peremptory writ of mandaknowledge of the plaintiff. He was working mus to compel such action on the relation of with those logs. Ile knew the purpose of

one claiming to have been elected to a city

office, it was proper to award costs against splitting the logs was so they would fall

respondents. apart. He knew they were insecure. He El. Wote.--For cases in point, see Cent. Dig. was not directed as to the specific manner vol. 33, Mandamus, SS 438-443.] of doing the work. He had an opportunity

Appeal from Superior Court, Kitsap Counof knowing that, by putting dogs on the end,

ty; A. W. Frater, Judge. the splitting would be prevented,' at least to

Mandamus by the state, on the relation a degree. He had the knowledge, and he had

of H. B. Howe and another, to compel Thomthe right to put those dogs in." This seems

as Kendall, as mayor of the town of Port to us to be a fair presentation of the case,

Orchard, and others, as councilmen thereof, and we thing the court was justified in grant

to canvass the returns of a city election, etc. ing the nonsuit asked for, and that he com

From a judgment overruling a demurrer to mitted error in subsequently granting a new

the writ, respondents appeal. Affirmed. trial. The judgment will therefore be reversed,

John G. Barnes, for appellants. J. Henry with instructions to dismiss the case.

Denning and William A. McLeod, for re

spondents. MOUNT, C. J., and CROW and RUDKIN, JJ., concur. ROOT, J., concurs in the result. • DUXBAR, J. This is a proceeding, brought HADLEY and FULLERTON, JJ., not sit- i in the superior court of Kitsap county in the ting.

name of the state of Washington on the re

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 moyed 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. The 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 inentioned 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 deinanded 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 seryice 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 oflice." 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 un. der 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, to furnish the money, McCleary solicit busithus raised, either before the court, a jury, or ness and make estimates on prospective cona referee; that judgment could be entered on tracts, and respondent was to have charge the verdict or findings not only directing the of the construction work. Respondent alissue of a peremptory mandate, but for dam- leges that the net profits were to be equally ages and costs upon which execution might | divided among the three, after he had been issue. And this case disposes of the final paid at the rate of $5 per day for each day contention of the appellants that costs should employed on contract work. When the case not have been awarded in this case against came on for trial, it appears that the only the mayor and councilmen.

question involved was as to the allowance of From an examination of the affidavit upon the $5 per day to respondent, he maintaining which the writ is based, we are satisfied that that he was entitled to that upon all work, no error was committed by the trial court | while appellants claimed that he was entitled in overruling the demurrer to the same. The to this allowance upon one certain contract judgment will be affirmed.

only. The case was tried before the court

without a jury. Findings and conclusions MOUNT, C. J., and ROOT, CROW, and were made, and exceptions to material porRUDKIN, JJ., concur. HADLEY, and FUL- tions thereof properly taken by appellants. LERTOX, JJ., not sitting.

One of the principal errors assigned is upon the action of the trial court in not granting

appellants a continuuance on account of the (44 Wash. 560)

absence of appellant White. It appears that TRAYNOR v. WHITE et al.

when the case was first called for "setting," (Supreme Court of Washington. Dec. 5, 1906.) in October, 1905, it was continued at appel1. CONTINUANCE – ABSENCE OF PARTY - AD, lants' request, and was afterwards set for DeMISSION TO PREVENT CONTINUANCE.

cember 26th. When this day arrived, the Where a case had been three times continued, and, on application for a fourth continu

court, being otherwise occupied, continued ance for absence of one of the defendants, the

the case until after the holidays, at which affidavit set out at length his expected testimony time appellant White filed a motion for a furand the plaintiff admitted that he would testify

ther continuance, setting up as a cause his as stated in the affidavit and the other defend

sickness and absence from the state. The ant was present and testified, the refusal of the continuance was not an abuse of discretion.

case was then reset for January 30, 1906. [Ed. Note.-For-cases in point, see Cent. Dig. On the 29th of January, appellants' attorney vol. 10, Continuance, 147.]

again asked for a continuance and filed in 2. APPEAL-HARMLESS ERROR-ADMISSION OF support thereof an affidavit of one of their EVIDENCE-TRIAL DE Novo.

attorneys, which referred to, and made a part In an action for accounting where the case is tried de novo on appeal, incompetent evidence

thereof, a telegram and letter from one A. will not be considered and its introduction in J. Bennett, claiming to be White's physician, the trial court is not ground for, reversal.

and residing at Jamestown, N. Y., where [Ed. Note.-For cases in point, see Cent. Dig. White was at that time visiting. This televol. 3, Appeal and Error, $ 3648.]

gram and letter were dated respectively the 3. TENDER-DEPOSIT IN COURT-ACCEPTANCE

11th and 12th of December, 1905. A second -EFFECT. In an action for an accounting, where de

telegram from Bennett was also filed in the fendants tendered and paid into court a certain

case. The letter and telegram were to the sum, and, after judgment in favor of plaintiff effect that White had been, and was, ill, and ordering the deposit to be paid to plaintiff and applied on account of the judgment and after

unable to make the trip from New York to notice of appeal and the filing of a supersedeas

Seattle at that time. The affidavit of the bond, plaintiff received the deposit and gave attorney set up at much length the evidence his receipt therefor, this did not constitute an

which it was claimed that appellant White acceptance of the tender so as to defeat his would give if present. The respondent adright to recover the balance allowed by the judgment.

mitted in open court that said White, if

present, would testify to all the matters set Appeal from Superior Court, King County;

forth in said affidavit. The trial court thereArthur E. Griffin, Judge.

upon denied the motion for a further continuAction by Harry T. Traynor against Willis

ance, and caused the parties to go to trial. N. White and another. From a judgment Appellants urge that the admission by rein favor of plaintiff, defendants appeal. Af

spondent that appellant White would testify firmed.

as set forth in the affidavit was not sufficient Blaine, Tucker & Hyland and F. R. Con- to justify the court in going ahead with the way, for appellants. J. E. McGrew, for re- trial; that, as White was a party to the acspondent.

tion, the case stood upon a different basis

from what it would if he were merely a wit. ROOT, J. This was an action for an ac- ness, and urged that his personal presence counting. From a judgment in favor of re- was essential to the proper management of spondent, this appeal is prosecuted.

his case upon the trial. There is some force Respondent and appellants entered into an in this contention. Ordinarily the court will oral agreement to engage in the business of not go into a trial when one of the parties, general contracting and building. White was on account of sickness or other unavoidable

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