State v. Brewer

• Citation: 39 Wash. 65,80 P. 1001
• Parties: STATE ex rel. HAWES v. BREWER, Sheriff, et al.
• Decision Date: 16 May 1905
• Court: United States State Supreme Court of Washington

80 P. 1001

39 Wash. 65

STATE ex rel. HAWES v. BREWER, Sheriff, et al.

Supreme Court of Washington

May 16, 1905

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Mandamus by the state of Washington, on the relation of F. B. Hawes against Frank Brewer and another, as sheriff and city marshal. From a judgment for respondents, relator appeals. Affirmed.

E. C Dailey and Frank D. Lewis, for appellant.

R. A Hulbert, Hathaway & Alston, and Bell & Austin, for respondents.

DUNBAR, J.

This is an action in mandamus brought in the superior court of Snohomish county, wherein the state of Washington ex rel. F B. Hawes, is plaintiff, v. Frank Brewer, sheriff of Snohomish county, and Edward J. Dwyer, marshal of the city of Everett Wash., are defendants. The affidavit alleges that it is the duty of said officers, under and by virtue of their oath of office and of the laws of the state of Washington, to enforce the laws of said state, and make complaint against and prosecute all persons who violate the laws of said state against keeping saloons, cigar stands, and other places of business open for the purpose of trade or sale of goods on the first day of the week, commonly called Sunday, or who sell or dispose of any intoxicating liquor on Sunday as aforesaid, or who rent houses for the purpose of prostitution, or who gamble or run gambling houses, and in fact to complain of and prosecute persons who commit crimes against the criminal laws of the said state of Washington. It alleged that said laws have been for a long time past openly and notoriously violated in said city, in that saloons, cigar stands, etc., have been kept open on Sunday for the purpose of trade, and that houses are being and have been rented in said city for the purpose of prostitution, and that gambling with slot machines has been carried on, and at length reciting the perpetration of the crimes and misdemeanors committed in the city; that demand had been made upon defendants to enforce the laws of said state against the violators thereof; that said defendants, and each of them, have utterly failed, neglected, and refused to enforce said laws, or any of them. This is the substance of the affidavit. And the demand was made that an alternative writ of mandamus issue to said defendants, requiring them to enforce said laws and prosecute all persons guilty of the violation thereof, or to show cause to the court why they neglected and failed so to do. A peremptory writ was issued, and upon the hearing a demurrer was interposed to the complaint--first, that the court had no jurisdiction of the subject-matter of said action; second, that the plaintiff had no legal capacity to sue; third, that there was a defect of parties plaintiff and defendant; fourth, that the complaint did not state facts sufficient to constitute a cause of action. The demurrer being sustained, judgment was entered, and from such judgment this appeal was taken.

It is insisted by the defendant, first, that the court erred in sustaining the demurrer and in dismissing the action, because there is no provision for a demurrer to the writ or affidavit in mandamus. We think there is no merit in this contention. The common-law forms of pleading have been abolished by the Code, and the demurrer in this instance was in effect a motion to quash the writ, and the sustaining of the demurrer was in effect the quashing of the writ. The view we take of the merits of the case renders it unnecessary to pass upon the proposition that the defendants could not be joined in the same action, as we think there is no cause of action stated in the affidavit. The office of mandamus is to compel an officer to perform a ministerial duty, and cannot be used for the purpose of compelling the...