The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-10-30
NEWS OF NORTHWEST.
Summary of Decision Against
Geological Survey Looters.
IABORER KILLED AT CLE-ELUM.
Unidentified Corpse Found at Mt. YER
non-Fatal Accident at Port Angeles
-welI-Known Oregonian Killed.

OLYMPIA, Oct 2o-tspecial]-Th supreme
court today filed an opinion by Judge Hoyt in
the mining bureau case in which a rehearing
was recently denied. The petition for rehear-
ing insisted that the court should have granted
the alternative writ even although il was of the
opinion that the peremptory writ would be de-
MED on final hearing The court points out
that this is not the practice and says:
The respondent in such proceeding is not
necessarily called upon to answer such an alter
native writ by showing the cause why the per-
emptory writ should not issue. Instead thereof
he may return that he has done the act which it
Is sought to compel. II he should take this
course the alternative order OF the court would
probably be complete justification for the act,
however illegal. In the case at bar, ii the court
had granted the alternative writ, the auditor
might have issued the warrant in question and
returned his action in SO doing as a complete
answer to said writ. Aud it would have fol-
lowed that the order of the court could be
pleaded as justification for act which was in
its opinion clearly illegal.
As to the contention that the petition prima
facie established the right to the relief prayed
for, the court expressed the opinion that:
The opinion did not even state prima facie
cause OF action, and that therefore il would
have been idle to call upon the auditor to an
swer.
As to the merits of the case. while several in
genious theories had been presented upon
which it could be held hat the legislature
might have intended To legislate, as claimed,
yet none of them satisfy US that in fact such was
the intention, and for this court to
hold that the -, money could could properly
state because the legislature might have in
tended, or even because it did probably so in
tend, would establish precedent that would
threaten greater evils to the commonwealth than
will the delay for few months of the mining
bureau, however important ii may be.
1t is the contemplation OF our constitution
that money should only be paid out OF the treas
ury of the state under some positive provision
OF the law, and beore the court will coerce the
administrative officers into making such pay
ments the authority for so doing must appear
with reasonable certainty.
In an opinion by Judge Dunbar. the judgment
OF the lower court in the case OF Ba-dwell, Rob-
inson & Co. VS.. Zeigler, appealed from Spokane,
was reversed. The action was upon a contract
for furnishing the defendant certain building
material. The defendant answered that the
doors, wainscoting and chairs were not deliv-
cred until six weeks after the time specified,
and claimed damages in the sum OF $500. Plain
tiffs replied that the failure was caused by the
negligence of the defendant in not having the
building so far constructed that measure
ments could be taken, and that they could
not be taken from the plans and specifications
but must be made by actual measurement OF
the house itself. Plaintiffs offered evidence
tending to show this state of facts and to show
that under such contract the general custom
was to take actual measurements. This testi-
mony was ruled out by the trial court The SUI
preme court holds that IL was an error TO refuse
TO admit the testimony, as 1t was proper for the
purpose of explaining the contract in the
light of general custom, on the prin-
ciple that a man will not be presumed
to Intentionally contract to do thing that it is
impossi bic for him to do. The court also de-
cides that 1t is violation of the state constitu-
ton TO instruct jury that any fact is undis-
puted by the evidence, and that in instructing q
jury court must confine itself to a statement
of the law, and must make no reference to the
testimony for the purpose of informing the jury
what it proves or does not prove. Judge Hoyt
concurs in the result, but dissents from the view
that it is for the trial court to instruct the
jury that fact is undisputed.
The judgment of the lower court was affirmed
In an opinion by Chief Justice Anders in the
case of Enos VS.. Wilcox, also from Spokane, for
the reasons that the notice of appeal was given
too late and the statement of facts settled out of
time, and that the statement was also
wholly invalid because the statement was
settled by one who had ceased to
hold the Office of judge. The court
further holds that all the testimony upon which
the cause was tried below, in the actions for
equitable relief, must be brought to the supreme
court, such causes are tried de moro on appeal.
The appeal of Snider kelso, from Lewis
county, was dismissed, because of a defective
statement of facts The case of Book VS.. Scully,
from Pierce, was argued