Aug. 1893.] Dissenting Opinion — DUNBAR, C. J. ants. Appellant while so engaged was in the same employment as Hurlburt and Tom Smith. If, therefore, Hurlburt, the engineer, was negligent in the management of the engine, as claimed by the appellant, or in not moving the cars up nearer to the main track before undertaking to "stake" them, thereby increasing the hazards otherwise incident to the business in hand, and causing the injury complained of, the respondents are not liable. Sayward v. Carlson, 1 Wash. 38 (23 Pac. Rep. 830); Crispin v. Babbitt, 81 N. Y. 516; O'Brien v. American Dredging Co., 53 N. J. Law, 291 (21 Atl. Rep. 324); Waddell v. Simoson, 112 Pa. St. 567 (4 Atl. Rep. 725); Reese v. Biddle, 112 Pa. St. 72 (3 Atl. Rep. 813); Brazil, etc., Coal Co. v. Cain, 98 Ind. 282; Holden v. Fitchburg R. R. Co., supra. We find in the record no evidence of negligence imputable to the respondents, and the judgment appealed from is, therefore, affirmed. HOYT and STILES, JJ., concur. SCOTT, J., dissents. DUNBAR, C. J. (dissenting).—I dissent. In my judg ment there is no question of fellow servant in this case. The appellant was all the time working under the direction of a superior whose directions it was his primary duty to obey, and on whose judgment he had a right to rely, in the absence, of course, of apparent danger. Smith, the foreman, who was certainly the alter ego of the lumber company, placed him at the disposal of Kelley, and Kelley eventually sent him to work under the direction of the engineer. He could not presume to direct the engineer, but the engineer did presume to, and had undoubted authority to direct him, and in obeying such direction or instruction he was injured. His primary duty was to obey, and in the absence of any apparent danger his absolute duty was to obey. The only question then is, was Dissenting Opinion — DUNBAR, C. J. [7 Wash. the company, through this engineer, guilty of negligence in moving the cars in the way in which they did move them? It was clearly proven that the method adopted of moving the cars with a stick is a dangerous one, but the majority say that the men engaged in moving the car were not compelled to adopt the method provided; but I insist that the appellant was compelled to obey orders or lose his employment, and his orders came from the agent of the company accredited with the authority to exercise his judg ment as to the manner of moving the cars. It is true, as the majority say, that it was simply a matter of choice which was the better or safer method to pursue; but the choice was to be made solely by the engineer under whose instructions this appellant was working. It was the engineer who decided upon the method and who selected the material for putting the method into practice, and who directed the appellant to use that particular material. The case of Sayward v. Carlson, 1 Wash. 38 (23 Pac. Rep. 830), is cited as sustaining the theory that appellant should be bound by the action of the engineer as the acts of a fellow servant. In my judgment they are not by any means parallel cases, as there was no question of authority in that case. I did not sit in the case of Sayward v. Carlson, but from an examination of it since, I cannot endorse it. For while the general argument is good, the conclusion announced is not, in my judgment, a logical deduction. It will not do to allow the master to escape responsibility by the assertion made in the majority opinion that "there is no evidence showing that the respondent, Hart, gave any direction or authority to the appellant to assist in moving the cars, or that he knew that he would be so employed." The appellant went from one place to another, each time under the direction of some one who had authority to send him; and under the system which Hart had adopted, and which is necessary for the successful and orderly opera Aug. 1893.] Dissenting Opinion — DUNBAR, C. J. tion of a large business with a varied class of employment, he was practically sent to move the cars by Hart, as much as though he had personally directed him to go. The establishment of any other rule would render it practically impossible for the servant, in employment of this kind, to fasten the responsibility of his employment upon the master. In any event, the pertinent fact is, that the appellant was actually there at the time, working under the direction. of the engineer; that he accepted his services, and that appellant was injured while performing such services; and, if nothing more, it was an employment at that time. But, says the majority, "the evidence discloses that at the time appellant was injured none of the men there, including the foreman in charge, knew anything about the business of staking cars." This announcement, it seems to me, very nearly approaches a confession of judgment. The very fact that the company would place men to work, in a concededly dangerous employment, who had no knowl edge of the way in which the work should be done, and consequently could not realize the danger of their employment or guard against it, and that the foreman in charge was equally incompetent and ignorant, conclusively established the grossest kind of negligence. It was the imperative duty of the company to have some one in command. of that work who did understand it. Had it done so, this accident in all probability would have been averted. There is no showing whatever of any contributory negligence on the part of the appellant, and the judgment, in my opinion, should be reversed, and the jury be allowed to assess the damages. REPORTS OF CASES DECIDED IN THE SUPREME COURT OF THE STATE OF WASHINGTON, AT THE OCTOBER SESSION, 1893. [No. 1064. Decided October 14, 1893.] F. S. LEWIS, Appellant, v. THE CITY OF PORT ANGELES, Respondent. MUNICIPAL CORPORATIONS PURCHASE OF ELECTRIC LIGHTING PLANT RECITALS IN ORDINANCE SURPLUSAGE. The recital in an ordinance adopting a system of electric lighting for a city that it was passed in pursuance of the act of March 26, 1890, as amended by the act of March 9, 1891, is mere surplusage, and the fact that the ordinance was passed in pursuance of the act of February 10, 1893, which was a reenactment of said former acts with an immaterial amendment, is not ground for enjoining the issuance of bonds for the purchase of such lighting system. Appeal from Superior Court, Clallam County. W. R. Gay, for appellant. George C. Hatch, for respondent. The opinion of the court was delivered by STILES, J.-The only objection made to the issuance of the proposed bonds being that the ordinance adopting the system of electric lighting for the respondent city recited that it was passed in pursuance of the act of March 26, 1890 (Laws, p. 520), as amended by the act of March 9, (190) Oct. 1893.] Opinion of the Court-DUNBAR, C. J. 1891 (Laws, p. 326), when in fact, if passed at all, it must have been passed in pursuance of the act of February 10, 1893 (Laws, p. 12), the judgment is affirmed. The recital in the ordinance was surplusage, and the act of 1893, was, under the decision in Seymour v. Tacoma, 6 Wash. 427 (33 Pac. Rep. 1059), a mere reënactment of the former acts, with an immaterial amendment covering the purchase of the existing light or water plants. DUNBAR, C. J., and HoYT, ANDERS and SCOTT, JJ., concur. [No. 1033. Decided October 17, 1893.] THE STATE OF WASHINGTON, on the relation of Erastus Brainerd, v. L. R. GRIMES, State Auditor. STATE LAND COMMISSION — APPROPRIATION FOR SALARIES- CONSTRUCTION OF STATUTE. The act (Laws, 1893, p. 386) providing for the state board of land commissioners, the payment of their salaries and expenses the same as the salaries and expenses of other state officers are paid, and authorizing the auditor to draw warrants therefor, sufficiently shows the intention of the legislature to make an appropriation in compliance with constitutional requirements by the further provision that "the treasurer of state is hereby directed to pay the same out of any moneys in the state treasury not otherwise appropriated." Original Application for Mandamus. John W. Corson, for relator. James A. Haight, for respondent. The opinion of the court was delivered by DUNBAR, C. J.—This is an application for a writ of mandamus, commanding the respondent, as state auditor, |