, 1891-11-10
THE MINING BUREAU U.
Denial Of the Supreme Court for
a Re-hearing,
70 Pay Money Out OF the state
Treasury there Must Appear
Some Positive ProYis-
ION Of EayE

ION of Law
The DAILY and WEEKLY TRIBUNE viii
print from time to time all the decisions o.
the supreme court
HI. 3. Parish, plaintiff, VS.. Thomas M. Reed
auditor of the state of Washington, de.
fendant.
In the petition for rehearing in this
cause it's strongly insisted that the court
should have granted the alternative writ
even although it was of the opinion that
the peremptory writ would be denied on
final hearing. In the opinion rendered we
attempted to show that to do this was not
according to the practice courts, and that
in this court at least such had never been
the course adopted.
Weonly desire to say word in addition
to what was then said. The respondent
in such a proceeding is not necessarily
called upon to answer such alternative
writ by showing cause why the peremptory
writ should not issue, instead thereof he
may return that he has done the act which
1t is sought to compel. If he should take
this course the alternative order Of this
court would probably be complete justi-
tication for the act, howeverillegal.
In the case at bar, if the court had grant
ed the alternative writ the auditor might
have issued the warrant in question and
returned his action in so doing as a COM
plete answer to the said writ. And it
would have followed that the order of this
court could be pleaded as justification for
az az act which was in its opinion clearly
illegal.
The above statement clearly shows that
the course contended for by the petitioner
would De an improper and dangerous one
a further contention is that the petition
on its face (prima facie) established the
right to the relief prayed for. This is prob
ably true if we were bound by the conClu-
sions of law therein pleaded. If this court
was bound to accept as true the twelfth
paragraph of the petition there would be
little lett to be decided. Said paragraph is
as follows:
Twelfth. That the said Thomas M.
Reed was at all times mentioned herein,
and now is the duly elected and qualified
auditor of the state of Washington; and
that it was then, and now is, his duty en-
Joined by law to draw his warrant upon
the state treasurer for the payment of said
voucher, bill and claims but he unlaWfully
refused and still refuses SO to do.''
What is here alleged as a fact is the very
question oflaW that the court was expected
to decide. 1t needs no argument to prove
that this and other conclusions of law
could not be taken as true. simply because
alleged in the petition. The court was
bound by the allegations of fact in the pc
ton, and ii assuming them to be as stated
1t was OF the prima facie opinion that
alternative writ sbo11Id bava boe,1
but if from such facts tbe conrt Was e Of H.
opinion that the neremtorv writ WouIG
be denied then the alternative - one teo9sae was
properly denied, In other words "fif f
would have been idle to call mon the re-
spondent to answer a petition Which oh did
not in the oninion Of the court even tn1l rinda ma
facie state q cause Of action Residaa IN
this case # appears from the netition hat
the auditor had substantiaIy admitted the
main facts pleaded therein and had stated
his views of the law to he directly CONTRARY
to the theory ofthe netitioner Hol1D1id n Wo1id
have followed that if the affirmative writ writ
had issued he might have we'll
thought that the court. 511st he of tha sanoa m1
opinion as the petitioner as To The law 1e'a an
piieable to the facts and az he conid npt NJ
deny the facts that he OUGHT ia accent tbe
view of the court as to the law and as Al
rected, issue the warrant at once and 90 ston
further contention. - O-1'' ''iiN' 9O9p
This was a canse of imnortanoe To +bo
public and the court far tbat ras al ~ eard
the petitioner much more f1IIT fi5an rs ne
uaI. When the netition was vas nresanta5 Tt-sal cd
full argnment was allowed a5 +,o 10,
taken under. adyisement and mon q i''cg0n. CON
cIusion being reached tbat tbera Puh %as ooli7 ~
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