3 Wash. Terr. 452 | Wash. Terr. | 1888
delivered the opinion of the court.
This case comes before us upon the single question of whether the complaint states a cause of action. The complaint is as follows:
“To the Hon. George Turner, judge of the above named ■court:
“For supplemental and second amended complaint, plaintiff avers:
“ 1. That it is a corporation duly created and incorporated under and by virtue of an act of congress dated July 2d, 1864, entitled ‘An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound,’ and the acts supplementary and amendatory thereof.
“2. That under and by virtue of said acts of congress plaintiff is authorized and empowered to construct and maintain and operate a railroad and telegraph line from Lake Superior to Puget Sound.
“3. That under and by virtue of said acts of congress the said plaintiff is now constructing its said railroad line through Kittitas county, and through and over what is known as the Cascade mountains, at a place called Stampede pass, and that at the place where it is constructing the .said road over the mountains, and in Kittitas county, is a village called Tunnel City; that said Tunnel City is lo
“ 4. That said railroad company has now in its employ in constructing its road as aforesaid at Tunnel City, in Kittitas county, four thousand employes, and that in the construction of its road as aforesaid it is necessary that said plaintiff and the contractors of said plaintiff should use high explosives, such as dynamite, and machinery run by electricity, steam, and compressed air, and in the use of said explosives and running of said machinery, and in the construction of said road, it requires sober, skilled labor.
“ 5. That the said defendants, except the board of county commissioners, at said tunnel, and on the public roads near thereto, and along the line of the road now being constructed by said plaintiff, for several months past have been running retail drinking and lager beer saloons, and selling spiritous, malt, and fermented liquors to the said employes, of said plaintiff, and that the said sales of said liquors to said employes has frequently and continuously caused drunkenness of said employes, and that the said drunkenness incapacitated the said employes so that they were not able to perform the labor assigned to them and the labor they were expected to do, and for which they were employed, and that the said drunkenness increased the risk and danger incident to the necessary use of the said explosives and machinery, and increased the danger to the employes employed in constructing the road as aforesaid, and to the officers and agents of said plaintiff, and has caused, and is causing, many of said employes to quit the employment thereof; that during the four months last past the said railroad company has employed and transported in and upon said work about eight thousand men, at an average expense' of two dollars for each man; that about four thousand of said men so employed, for the reason aforesaid, and to the great and irreparable damage of said railroad company,, after being transported in as aforesaid, quit and left the work of said plaintiff; that said plaintiff, had it not been
“ 6. That the plaintiff has an interest in one-half of the land along the line of said road for forty miles distance on either side thereof; that the lands upon which said saloons are located are unsurveyed lands; that plaintiff’s interest in the land cannot be ascertained or determined until the United States Government surveys are extended thereover; that the lands upon which said saloons are and have been located are either the lands of the said plaintiff or public lands of the United States, and that it cannot now be ascertained whether the said lands are those of the plaintiff o.r those of the United States; that the said defendants, excepting the said board of county commissioners and said Blomquist and Nelson, have been running and maintaining said saloons and nuisances under a paper writing purporting to be a license issued by the county auditor of Kittitas county; that the said paper writing was issued without right or authority therefor; that the board of Kittitas county and the members thereof, as above named, intend, unless
“ 7. That the said plaintiff has not an adequate remedy at law, and that the granting of said injunction will avoid a great multiplicity of suits.
“Wherefore, plaintiff prays for a temporary injunction enjoining the board of county commissioners from granting licenses to said defendants to retail spirituous, malt, and fermented liquors in Kittitas county, and enjoining said defendants from selling liquors at retail and running said saloons and gambling houses where drunkenness is permitted and carried on, during the pendency of this suit; and that the defendants, the board of county commissioners, be perpetually enjoined from granting licenses to retail spirituous, malt, or fermented liquors on unsurveyed public land; and that said defendants be perpetually enjoined from selling intoxicating liquors at retail, and from running and continuing to operate gambling houses and nuisances described in the complaint, and for such other and further relief as the court in the premises is competent to give.”
It is claimed to be a right to import men to be employed, by them, and in case they have them, that they shall remain sober. Though the claim is to some uncertain aggregate of men, it is clear that the right cannot consist to the joint labor of the uncertain aggregate as an entirety; but whatever it is, it is several as to each particular employe.
When the right exists, it is to each employe, and the complaint is that some of them, not naming which, get drunk, and these several employes getting drunk is the wrong complained of.
Now, if one man employs another to work for him, he has a right to require that man to keep safely sober. If he does not, he may be discharged, and may be sued for damages.
This is all the remedy which the law gives for this wrong.
These several rights as to each man employed, according to their very nature, cannot be joint or common as to all men employed.
But the complaint is not against these several wrongdoers, either severally or jointly; it is against the fifteen or twenty different men, who sell in different quantities, to each man, at his request, whisky. This is less a cause of action than there would be against the employe who made himself drunk.
Selling the whisky does not necessarily make any man drunk.
If the man who buys it performs his duty, it will not make him drunk; indeed, if he uses it properly it may do him good — at least will not make him drunk.
If one sells dynamite, powder, guns, or poison to another, it does not follow that the vendor is guilty of the result of the improper use of it by the vendee. Suppose it was a gun, powder, and balls that was sold to one employe, who with it shoots another employe — which is a similar case-— would the vendor be guilty of murder'? If he were thus guilty of selling pistols to employes, and was continuing the business, could the employer have the vendor enjoined?
Having no remedy against the vendor at law, it would not follow that he would have one in equity, for he would have no remedy at all except to discharge his bad employes and sue them for damages.
This action is not against any proprietor of a house, but against twenty different proprietors of different houses.
It is unnecessary to decide whether an action could be maintained against any one house or not, for this complaint does not describe any one house which is a nuisance. Indeed, it does not declare that any one house is a disorderly house, and that plaintiff is annoyed because the house is disorderly. It merely claims that each of twenty men sells liquor to employes.
A tippling house is not a nuisance at common law or by statute; but a tippling house, or any other house, which is kept in such a disorderly manner as to seriously annoy neighbors, might be a nuisance. A man might keep an orderly house, yet be selling therein large quantities of spirits. The men might get drunk outside the house and there be noisy, or, if drunk inside, yet not noisy, the house would be no nuisance.
We conclude that the plaintiff’s right to the services of its employes rests in executory contract with each employe, and the only remedy that the plaintiff has for this is for a breach of this contract against its contractor.
That, if the employe, upon account of a tort to his person, cannot perform his services, such employe has his action against the person who committed the tort, but the employer hath not an action. That the sale of liquor to an employe is not a tort against him nor his employer. That this action is brought, not for keeping a disorderly house, but merely for selling spirits to employes.
We therefore conclude that the demurrer was' rightly sustained.
Were not the above true, and were this action brought by the proprietor of one house to abate the disorderly house of
The cases cited, which show that when many different persons, each by his separate act, pollutes a stream so that the pollution has joined and become common, and this common pollution injures the land and premises of another, that this person thus injured may bring a suit to abate this common nuisance against the several persons who created it, have no application to this case.
First, because there are no premises in this case which contribute to a common nuisance; in fact, no premises or stationary thing or business which contributes to anything, and much less to a common thing, which is a nuisance to plaintiff’s premises. There is nothing like a common stream, which each defendant contributes to corrupt. Eo one saloon does anything in common with another.
If any is a nuisance, it is a separate nuisance of itself, unconnected with the nuisance of the other.
Were they all joined in an indictment, as the houses have separate proprietors, and what constitutes nuisance in one has nothing to do with the other, none could be convicted.
If this action can be maintained,' then any ship coming in or leaving a port could maintain a bill against all the saloons, all the gambling houses, and houses of ill-fame in a city in which the ship landed. Every manufactory could maintain a joint action in like manner against all such houses in the city in which they were situated. Every railroad company could maintain a joint action against all such houses in towns where the trains stopped. This case is indeed a novel one, and the principles upon which it is sought to be maintained are as novel.
It is alleged that the county commissioners are threatening to issue licenses, when the pre-requisites therefor have not been performed. The county commissioners in this matter are acting, and are to act, in a quasi judicial capacity on a matter exclusively within their jurisdiction.
It would be as reasonable to enjoin a justice of the peace because he threatened to enter judgment without a sufficient «complaint, as to enjoin the commissioners in this instance. Whether or not the consent of the proprietor of the premises is obtained, is a question for the board to decide in the capacity which the statute has given.
We find no error committed by the District Court, and hence let its judgment be affirmed.
Jones, C. J., and Allyn, J., concurred.
