The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-07-16
AGAINST MR.. MASE[,.
oourt Finds He Will Have
Remedy After Trial.
wnrr or MANDATE REFUSED.
Asother Appeal Taken Claims Allowed
BIZ Assignee OF T. NJ. Alvord-A
Husband Set Free.

rire Commissioner Masel received an
.ther setback yesterday In the superior
.ozrt In his controversy with Mayor
phelos The case was brought before
Iudee Osborn ON a petition By Masel for
neremptory writ Of nsandamus. com
,eIlinx the mayor to recognize him as a
nsrnbAr OF the fire commission. The
,rayor fled a demurrer to the writ. on
sha ground that it did not state facts
~sf6cIent TO entftle Masei to the relief
.rayed for. Judge Osborn sustained the
1enurrer after lengthy argument be- the
attorneys for both sides.
Corporation Counsel Scott opened for
defendant. He contended that the COM
olsint showed upon sts face that Masel
had plain, speedy and adequate remedy
Il law By means OF the writ of review.
sftsr the council had passed upon the
suestion, should the action prove ad-
verse to him. Until that time the right
Afforded him OF appearing before the
council and being heard IN his defense
vas a good remedy. The act OF the mayor
Ia suspending Masei was a part OF the
proceedings Of removal. and not an In
dependent proceeding. The court would
take judicial notice Of the fact that q
p-ohibition had been asked and refused.
and that the matter was still pending.
but could not try the question of the
Legality OF the suspension independent
q, the question OF removal
Mr.. Wiley. IN his argument, commended
that the action Of the mayor In Suspend
lng Kasel was an independent act, fully
performed and entirely free from any
connection of any action of the council
The charter only authorized a suspension
for cause, and unless the court could
say that the reasons given by the mayor
ST.
ing Masel. the peremptory writ should
70. The vacancy which the mayor was
authorized TO fill temporarily by section
Of article 10 OF the charter was the
same vacancy defined by section OF the
same article, az existing by death, re-
noval from Office, removal from the
state or permanent disability. Section
Of the charter provided that when any
elective Office except that OF a member
Of the city council should become va
can't. the council should within twenty
days In joint convention elect a person
20 Gil the vacancy for the remainder OF
the unexpired term. and 1t was this period
Of time intervening between tho vacancy
occasioned by death, removal, etc, and
the time OF the meeting of the council
In joint eonv ention which the charter
dedgnated as a vacancy which the
mayor was authorized TO temporarily
OH.
Judge Osborn sustained the demurrer,
on the grond that the party had plain,
speedy and adeqate remedy at law by
means OF a writ OF review. and in so do
Ing held that the action of the mayor
In .suspending Masel was q subsequent
part OF the proceedings before the coun-
Gil. and not an independent act. remark
ing as he did so that if the act of s,is-
pension was an independent one. I'm his
judgment mandamus was the proper
remedy to try the question of the sus-
pension. and the court would take jur-
isdict1on. He also said that the sus-
pension created such a vacancy as would
authorize the mayor TO I'LL &c temporar-
Ny.
Judge Osborn said the city has a right
10 govern Itself. and IL was not the prov
tnce Of the court 20 interfere. The city
council had jurisdiction to try this case
and the court had no more right TO de-
prlve the council Of the right to try these
charges than II would have TO prevent a
justice of the peace from trying cause
Of which he had jurisdiction. II the COM
paint did not state a cause OF action,
the remedy would be by appeal after the
cause was tried In the court below, and
the council being the tribunal which had
jurisdiction to try this cause, Il was the
sole judge OF the sufficiency of facts al
legged !r the charges. and IL the charges
were not sufficient, this, court could not
get jurisdiction to Determine that ques-
ton except In the manner pointed out by
the statutes.
TIE Judge held, regarding the fact that
me complaint stated that the mayor had
made the charges solely for the purpose
o. destroying the majority against him.
that the motive OF the mayor was wholly
,mfnaterial, and could not be considered
IN determining whether the charges were
saiiicient. II the fire commission had no
authority TO direct the acceptance Of the
hose, or to put IL into commission Ma
seis motion TO do 20 was an offlcious in
terineddling with business that did not
concern him, and II the commission did
have the power TO direct that the hose
should be used or put I'm commission, the
charges were sufficient IL proven.
Wiley gave notice in open court that ne
appealed the case to the supreme court,
and asked the court 20 fix a bond on ap-
peal. Mr.. Scott objected TO the court fix
rg the bond, on the ground that the stat
ose Fixed the bonds. being merely a bond
TOY costs. and that no bond could be filed
which would act as superSedeas. Judge
osoorn nxeh the bond at 500, but did not
pass upon the question as TO whether a
seperseaeas bond could be fled.
The sklIlful DR.. Otto $. Binswanger. OF
Portland, reports: "Dr. Prices Baking
Powder Is a pure cream OF tartar powder
with no trace OF adulteration."