State ex rel. v. Williams

77 P. 965 | Or. | 1904

Mr. Chief Justice Moore,

after stating the facts in the above terms, delivered the opinion of the court.

It is contended by defendants’ counsel that errors were committed in overruling these demurrers. Let us first consider whether or not the alternative writs state facts sufficient to warrant the granting of the relief demanded. They show the right of the relators to institute these proceedings ; allege the incorporation of the City of Portland, and the several duties of the respective defendants, so far as involved herein; that since March, 1903, defendants have wilfully conspired to obstruct and defeat the enforcement of the provisions of the city charter, of the municipal ordinance, and of a statute of the State prohibiting gambling, and to thwart the conviction and punishment of persons engaged in gaming, or who keep or frequent gambling houses, and refuse to perform the duties imposed upon them ,in relation to such prohibition; that every day and night since the unlawful agreement was entered into a number of persons have openly and notoriously been engaged in keeping and conducting gaming and gambling houses, rooms, and premises, and playing the games so prohibited, which places have been and now are kept and used as common gaming houses for playing therein for wager of money at games of chance, some of the persons so employed and of the rooms in which they are engaged being as follows: John Thomas, 130 Fifth Street, H. Shapiro, 185 Third Street, George Fuller, * * Fred Fritz, 242 Burnside Street, E. Blazier, 248 Burnside Street, and A. D. Martini, 81 First Street; that at all times and now the defendants had and have information satisfactory to each of them that such houses and rooms were and are constantly used for gambling, but, in pursuance of their unlawful agreement, the chief of police, with the sanction and approval of his codefendants, pretends to subscribe and verify complaints against such persons, feigning to charge them severally, in due form of law, with violating the ordinances relating to gambling, files the same in the municipal court, and, without any order therefrom fixing their bail, induces them to deposit sums of money, pretending that they are in lieu of bail,'and the municipal judge, in furtherance of such unlawful combination, professes to order such money forfeited and paid into the city treasury, the defendants intending that the persons so charged should not appear in court for trial, they consenting thereto, relying upon the defendants’ advice that they were not to be tried on such charges if twice each month they would deposit the sums agreed upon as simulated bail.

It is also further alleged that in pursuance of such conspiracy all persons conducting common gaming houses, including those hereinbefore named, have been charged by the chief of police twice each month with the offense of gambling, and in every instance they deposited a specified sum of money in lieu of bail, which has invariably been forfeited, the municipal judge refusing to proceed with their trials; that at intervals between the time of such deposits the defendants had, and now have, satisfactory information, and know that the persons so charged-are keeping gaming houses, but the defendants wilfully neglect and refuse to charge them therewith, or cause them to be arrested therefor, or to be brought to trial, and in doing so the defendants have not exercised any discretion, but act arbitrarily, and with intent to permit public gambling in violation of law; that the municipal judge, well knowing that the persons making such deposits are in the city, at their several gambling houses, engaged in playing prohibited games, wilfully neglects to issue bench warrants for their arrest, “ as required by law,” with intent that they shall continue to violate the city charter, municipal ordinance, and statute of the State, so as to derive from them an illegal and corrupt revenue for the city; that the largest gambling house is known as the “ Portland Club,” at No. 130 Fifth Street, which is, and at all times mentioned herein has been, kept and conducted by Peter Grant, Jack Grant, Lawrence Sullivan, .Harvey Dale, and Nate Solomon; that in March, 1903, and thereafter at regular intervals, the chief of police has pretended to file in the municipal court verified complaints against one of .the persons last mentioned under the fictitious name of John Thomas, well knowing the true name of the person intended to be charged, who would thereupon deposit in that court, under pretense of bail, about $250, but on November 23, 1903, the sum left for that purpose was $300, which the judge pretended to forfeit — whereby gambling has continued in violation of law, and the persons engaged therein and pretended to be charged therewith and arrested therefor under the name of John Thomas have, in pursuance of such conspiracy, never appeared in the municipal court for trial; and that the relators have no plain, speedy, or adequate remedy in the ordinary course of law.

The four alternative writs are alike in every particular, except the thirty-seventh paragraph thereof, which relates to the respective commands enjoined upon the several defendants ; the one addressed to the mayor, omitting the choice of showing cause, being as follows:

“ Now, Therefore, you are commanded that immediately after the receipt of this writ, you forthwith direct Charles H. Hunt, as chief of police of said city, to enter, or cause a proper police officer to enter, the common gaming houses described in this writ, and particularly the premises at 130 Fifth Street, known as the ‘Portland Club,’ which is a common gaming and gambling house, and forthwith arrest or cause to be arrested the person or persons who may be found there violating the gambling law and ordinances, and particularly the person who has heretofore been charged by the said chief of police in the municipal court of said city with violating the laws and ordinances of said city under the name of John Thomas, and the persons to wit, Peter Grant,. J^ck Grant, Lawrence Sullivan, Harvey Dale, and Nate Solomon, who are keeping and using said gambling house, and to seize all instruments of gaming that may be found therein, and bring the same into the municipal court, and to vigorously prosecute said persons therefor, and that you show cause,” etc.

The command addressed to the executive board is almost identical with that to the mayor, and that directed to the chief of police was to execute the orders of the mayor and of the executive board, as contained in the mandates to them. The municipal judge was required to perform the following service:

“Now, Therefore,you are commanded that immediately after the receipt of this writ you issue bench warrants for all persons charged with offenses against the ordinances of said city relating to gambling, whose bail has been forfeited by order of your court, and who have not appeared for trial in the several actions against them, and particularly for the persons charged under the name of John Thomas, charged in the months of May, June, July, August,. September, October, and particularly about November 30, 1903, and that you cause the said persons to be brought before you and proceed to the trial thereof.”

Section 194 of the charter of the City of Portland, which is relied on as imposing upon the mayor and the executive board the duties sought to be enforced against them in this proceeding, is, so far as deemed involved herein, as follows: “ Whenever the mayor or the executive board ascertains or receives satisfactory information that any house, room, or premises within such city * * is being kept or used as a common gaming house or common gambling premises, for playing therein for wager of money at a game of chance, * * it shall be lawful for the mayor or the executive board to authorize and direct the chief of police, or any officer of the force, to enter such house, room, or premises, aud forthwith arrest all persons therein found offending against any law, and to sieze all instruments of gaming * * and bring the said articles into court”: Sp. Laws 1903, p. 83. Assuming, without deciding, that the clause “it shall be lawful,” in the section quoted, is not merely permissive, but mandatory, imposing upon the mayor and the executive board the duty of directing the chief of police as therein specified, had these officers the power, and could the court compel them, to order the arrest, without a warrant, of any person not found offending against any law ? The statute prescribing when an arrest may be made without written authority is as follows : “A peace officer may, without a warrant, arrest a person,— (1) For a crime committed or attempted in his presence; (2) when the person arrested has committed a felony, although not in his presence; (3) when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it”: B. & C. Comp. § 1611. Ordinance Eo. 3983 of the City of Portland, approved October 13, 1883, prohibiting gambling, and in force when the -writs herein. were issued, imposes for a violation of its provisions a punishment by imprisonment not exceeding ninety days or by a fine not exceeding $300, or by both such fine and imprisonment. It will thus be seen that by this municipal enactment the crime of gambling is only a misdemeanor, as it is likewise regarded by statute of this State: B. & C. Comp. § 1944.

1. It would have been lawful for the mayor or for the executive board to have directed the chief of police to enter any gambling house in the City of Portland and arrested all persons found therein offending against any law, for the individuals so discovered would be guilty of a crime committed or attempted in the presence of a peace officer: B.'& C. Comp. § 1611. When, however, the mayor and the executive board were commanded in the alternative writs, without either the filing of a complaint or the issuing of a warrant, to direct the arrest of the persons named, we do not think any authority existed therefor; for, if the' persons designated were found offending against any law, the insertion of their names in the alternative writs was unnecessary, but, if not so found, their alleged crimes being only misdemeanors, and not committed in the presence of the court (B. & C. Comp. § 1615), it was powerless to command their apprehension: State ex rel. v. Francis, 95 Mo. 44 (8 S. W. 1). In that case it was held that a writ of mandamus would not be issued to compel the Board of Police Commissioners of the City of St. Louis to arrest and prosecute certain named persons for a violation of the law of Missouri prohibiting the sale of fermented liquors on Sunday. In rendering the decision Mr. Justice Sherwood, speaking for the court, says : “Again, on the mere admission of the respondents that four citizehs have done certain acts, the latter are to be arrested and prosecuted without affidavit and without warrant. This is further, it seems to me, than the mandatory authority of a court extends. Indeed, I have found no precedent for a mandamus for the arrest of any one. It is the duty of a sheriff, as conservator of the peace, to cause all offenders against the law, in his view, to enter into recognizance with surety to keep the peace, etc.: 1 Rev. St. 1879, § 3889. It is also his duty to quell and suppress assaults and batteries, riots, affrays, and insurrections, to apprehend' and commit to jail all felons and traitors, and execute all process directed to him by legal authority: 1 Rev. St. 1879, § 3891. And yet it is believed that no instance can be found where a mandamus has issued commanding a sheriff to quell a riot or to arrest a criminal. The fact that no such precedent can be found argues very strongly'against the exercise of such authority. It is very easy to see that, if the process of mandamus could be employed in this ordinary way, that extraordinary writ would soon descend from its high plane and become very commonplace.”

2. To secure freedom from illegal restraint for trivial causes, the wisdom and experience of ages have sanctioned the use of certain forms of procedure which must be observed before an alleged criminal can lawfully be arrested for a misdemeanor not committed in the presence of a magistrate or of a peace officer. A formal charge must be made and filed, showing that the court has jurisdiction of the subject-matter and authority to issue a warrant, in pursuance of which a peace officer may apprehend the person therein named, and be exonerated from all consequences that may possibly result from a wrongful imprisonment, by producing the writ if it appears therefrom that the court issuing it had such jurisdiction, and there is nothing disclosed to notify him of any lack of such authority : Crocker, Sheriffs, § 48; Murfree, Sheriffs, § 1161; 3 Cyc. 880; 2 Am. & Eng. Enc. Law (2 ed.), 869, 893; Savacool v. Boughton, 5 Wend. 170 (21 Am. Dec. 181); In re Way, 41 Mich. 299, 304 (1 N. W. 1021). In Goodell ex rel. v. Woodbury, 71 N. H. 378 (52 Atl. 855), relied upon by the relators as supporting the judgment rendered herein, a writ of mandamus was issued to compel the chief of police of Manchester, N. H., to enforce the provisions of a statute of that State prohibiting the sale of intoxicating liquors; but the officer was commanded to prosecute, not to arrest, the persons named in the writ. In deciding that case Mr. Chief Justice Blodgett, referring to the duties of the chief of police, says : “ The defendant is not merely a peace officer ; he is also a prosecuting officer. The ordinances of Manchester (1892) provide that he shall carry into execution within the city the laws of the State and all the ordinances of the city, and be vigilant to detect and bring to punishment all violators thereof. * * He shall receive all complaints made to him of any violation of the laws or of any ordinance of the city, and shall, in behalf of the city, cause all offenders against such laws and ordinances to be promptly prosecuted before the Police Court of the City of Manchester, and shall attend, on behalf of the city, at their trial.’ ” In the case at bar the chief of police was required to arrest and vigorously prosecute the persons named in the alternative writ addressed to him, but, as such order was a recital of the language of the city charter (section 195), we do not think the command can be construed, in the extraordinary remedy invoked, as a direction to file formal charges against the persons so named, before arresting them, and that a reasonable interpretation of the language used means that the officer was required (1) to apprehend such persons; (2) to bring them into the municipal court; (3) to prefer charges against them; and (4) to secure the attendance of witnesses whose testimony might lead to their conviction.

The Congress of the United States, fearing an infringement of the citizen’s right of locomotion, and believing that the constitution originally adopted did not sufficiently “secure the blessings of liberty,” guaranteed by that instrument, proposed at an early day and secured the ratification of the fourth amendment to the fundamental law, which, so far as applicable herein, is as follows: “ The right of the people to be secure in their persons * * against unreasonable * * seizures shall not be violated ; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing • * * the persons * * to be seized.” In the case of In re Way, 41 Mich. 299 (1 N.W. 1021), Mr. Chief Justice Campbell, commenting on the mode of apprehending persons, says : “ It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful except in those cases where the public security requires it; and this has only been recognized in felony, and in breaches of the peace committed in the presence of an officer.” In Bright v. Patton, 5 Mack, 534 (60 Am. Rep. 396), it was ruled that an officer had no right to arrest without a warrant, after an offense had been committed, where the punishment is only a fine and imprisonment in jail. The illegal arrest of a person without a warrant entitles him to compensation for the damages sustained by reason of the false imprisonment: Thorne v. Turck, 94 N. Y. 90 (46 Am. Rep. 126). In McConnell v. Kennedy, 29 S. C. 180 (7 S. E. 76), the court, in distinguishing between false imprisonment and malicious prosecution, says: “The foundation of the cause of action in the one case is the right which even a guilty man has .to be protected against any unlawful restraint of his personal liberty, while in the other it is founded upon the right of an innocent man to be compensated in damages for any injury he may sustain by bringing against him a groundless charge, even though such charge may be presented and prosecuted in accordance with the strictest forms of law.” The statute of this State, emphasizing the love of personal liberty entertained by a free people as expressed in the fourth amendment to the federal constitution, impliedly prohibits the arrest, without a warrant, of any person for the commission of a misdemeanor, unless the offense was attempted or consummated in the presence of a magistrate or of a peace officer (B. & C. Comp. § 1611) ; so that, if the chief of police had obeyed the command of the alternative writ directed to him, and, without a warrant, arrested the persons so designated, their alleged crimes being only misdemeanors, he would probably have been liable to them in nominal damages, at least, for a false imprisonment, unless he apprehended them in the act of violating the law, notwithstanding they may theretofore have been guilty of offending against the statute and city ordinances prohibiting gambling. “An officer,” says the editor of the Am. ■&Eng. Ene. Law(vol. 19, p.729, 2 ed.), “'cannot be compelled to do more than the statute requires of him”;"and hence the issuance of the alternative writs addressed to the mayor, to the executive board, and to the chief of police, in so far as they commanded the arrest without a complaint or warrant of the persons- so named, was an exerciseof power not authorized, and therefore void.

3. A compliance by the municipal judge with the command directed to him would have necessitated an examination of the journals of the municipal court from the time of its organization until the writ was returned to ascertain the names of the persons whose bail had been ordered forfeited and who had not appeared for trial in the several actions instituted therein against them, that bench warrants might be issued for their arrest, regardless of the fact that many of those intended to be included in the order may .possibly have died in the long interim. The statute makes a distinction between bail and money deposited in lieu thereof (B. & C. Comp. § 1338), so that a literal compliance by that officer with the alternative writ directed to him to “ issue bench warrants for all persons charged with offenses against ordinances of said city relating to gambling where bail has been forfeited by your court, and who have not appeared for trial in the several actions against them,” would not have resulted in punishing the persons alleged to have been guilty of violating the law prohibiting gambling, nor possibly corrected the evil sought to be suppressed by these proceedings, assuming, as the writs allege and the demurrers admit, that in pursuance of the conspiracy entered into by the defendants money, in each instance, was deposited in lieu of bail.

4. The alternative writs, in referring to the duties imposed on the municipal judge, contained the following averment:

“Among the provisions of law not otherwise provided in said charter are that a defendant shall be admitted to bail by an order of the court, and after such order is made he may deposit in lieu thereof with the clerk the sum of money mentioned in the order, and if, without sufficient excuse, the defendant neglect or fail to appear for arraignment or upon any other occasion when his presence in court may be lawfully required, the court must direct the fact to be entered in the journal, and the undertaking of bail, or the money deposited in lieu thereof, as the case may be, is thereupon forfeited. When by reason of the defendant’s neglect or failure to appear he has incurred a forfeiture of his bail or money deposited in lieu thereof, it is the duty of the court, by an order entered upon its journal, to direct the arrest of the defendant, and his commitment to the officer to whose custody he was committed at the time of giving bail, and his detention until legally discharged. It is then the duty of the court to proceed to trial in ordinary course until final determination.”

The charter provides that the municipal court shall be a court of record having a seal: Section 328. All proceedings before such court or the judge thereof are governed and regulated by the general laws of the State applicable to the justice of the peace or justice’s courts in like cases, except as in the charter otherwise provided : Section 332. The executive board is authorized to appoint a clerk of such court, who is to keep the seal thereof and to affix it to any process emanating therefrom : Section 331. The demurrers having admitted the duty of the municipal judge.to enter in the journal of his court a memorandum of the forfeiture of the money deposited in lieu of bail, and of orders in such cases directing the arrest of the persons whose money had been forfeited, as alleged, it must be presumed, in the absence of any averment to the contrary, that such official duty has been regularly performed (B. & 0. Comp. § 788, subd. 15), and, this being so, the issuing of the bench warrants did not devolve upon the judge, as stated in the command addressed to him, but on the clerk of the municipal court, who is required to affix the seal thereof to any process: Charter of Portland, § 331.

5. Though it is alleged in the alternative writs that the municipal judge wilfully neglects to issue bench warrants, ‘‘as required by law,” for the arrest of persons whose money deposited in lieu of bail has been declared forfeited, it is not averred that it is incumbent upon him to issue such warrants, unless the duty in this respect can be implied from the qualifying phrase “as required bylaw.” It was necessary to state, as a major premise: (1) The facts constituting the duty which the law enjoins on the defendants; and, as a minor premise, (2) their failure, neglect, or refusal to comply therewith, from which the court deduces the conclusion sought to be established : Bliss, Code PI. (3 ed.) § 137. The writs having stated that the municipal judge neglected to issue bench warrants “as required by law,” the phrase quoted is only a legal conclusion, and not the averment of a material fact, stated as the foundation of an enforceable right. It will be remembered that the sufficiency of the alternative writs was challenged by demurrer, and in such case the probative facts alone are admitted, and not the conclusions of law so stated : Longshore Printing Co v. Howell, 26 Or. 527 (38 Pac. 547, 28 L. R. A. 464, 46 Am. St. Rep. 640). It not having been alleged that it was incumbent upon the municipal judge to issues bench warrants, and, as we have seen this duty imposed by the city charter on the clerk of the municipal court, it follows that the alternative writs do not state facts sufficient to constitute a cause of special proceeding against the former.

6. Considering the fourth ground of the demurrer interposed to the alternative writs — that several causes of alleged special proceedings have been improperly united — it has been held that one writ of mandamus against all officers concerned in the separate but cooperative steps for levying and collecting a tax is the proper and effective remedy to secure its exaction : Labette County Com’rs v. United States ex rel. 112 U. S. 217 (5 Sup. Ct. 108). In deciding that case Mr. Justice Matthews, in speaking for the court on the procedure, said : “There is no incongruity in such a writ. It would not be complete or effective without it embraced all the particulars which, in law, are essential to the full duty contemplated by it, the performance of which is necessary to secure its benefits to the party who sues it out. So here the object of this writ, though including many particular steps in obeying it, is nevertheless single, in that it is intended to obtain an end which is the result of the means prescribed. The command of the writ is to perform the general duty, which is obeyed by performing the successive steps which constitute it. Clearly, the writ would not be chargeable with duplicity if addressed to one person, although it commanded the performance of a series of acts, each of which was a condition of the performance of its successor, where the right of the relator consists in the result legally flowing from the combined whole. It can make no difference in principle that in a particular case the law, instead of casting the performance of the entire duty upon a single person, has divided-it among several, each to perform but one act in the series, and each acting independently, and not as responsible to any of the others, but all required to cooperate in the attainment of the single result, and by a continuous and uninterrupted succession so as to preserve the integrity and unity of the performance of an entire duty. The relator is entitled to an effective writ, and he can have it only on the terms of joining in its commands all those whose cooperation is by law required, even though it be by separate and successive steps in the performance of those official duties which is necessary to secure to him his legal right. Otherwise the whole proceeding is liable to be rendered.nugatory and abortive.” To the same effect, see State ex rel. v Bailey, 7 Iowa, 390.

7. In the case at bar it will be remembered that section 194 of the city charter provides that it shall be lawful for the mayor or the executive board, on the receipt of satisfactory information, etc., to direct the chief of police to enter common gaming. houses in the city aiid arrest all persons therein found offending against any law. The statute of this State makes it the duty of a police officer to inform against and diligently prosecute any and all persons whom he shall have reasonable cause to believe guilty of violating the provisions of an act prohibiting gambling: B. & C. Comp. § 1950. This enactment made the chief of police of the City of Portland a prosecuting officer (Goodell ex rel. v. Woodbury, 71 N. H. 378, 52 Atl. 855), and, if he had reasonable cause to believe that any person was violating such law, also imposed on him the duty of enforcing its provisions without any direction to that effect from the mayor or from the executive board. The obligation thus enjoined results from an office (B. &. C. Comp. § 605), and for a refusal by the chief of police to comply with the duty which the law prescribes a peremptory writ of mandamus addressed to him would be as effectual to suppress public gambling as though the mayor and the executive board were also commanded to direct him to do the same thing. This result can be secured by commanding the chief of police to perform a plain duty devolving upon him, and, as a writ of mandamus will not lie to compel the execution of vain and useless things (19 Am. & Eng. Enc. Law, 2 ed. 757), no necessity existed for joining a cause of special proceeding against the mayor or the executive board, the discharge of whose duties, if it be assumed they are imperative, were not an indispensable or successive step in the procedure to suppress the evil of which the relators complain.

8. In discussing this feature of the case we have not overlooked the legal principle that a public officer cannot be compelled to do a particular act which his superior in office has lawfully ordered him not to do: 19 Am. & Eng. Enc. Law (2 ed.), 731; Butterworth v. United States ex rel. 112 U. S. 50 (5 Sup. Ct. 25). Assuming, as the demurrers admit, that a conspiracy existed whereby the defendants sought to raise a revenue by a method tantamount to licensing public gambling, the scheme alleged to have been adopted was unlawful, and, the agreement entered into being void, the chief of police was not bound thereby, nor under any obligation to obey the orders of his superiors, the mayor or the executive board; and hence mandamus will lie to compel him diligently to prosecute any and all persons whom he has reasonable cause to believe guilty of a violation of the provisions of the statute prohibiting gambling: B. & C. Comp. § 1950; Goodell ex. rel. v. Woodbury, 71 N. H. 378 (52 Atl. 855).

9. The relators are entitled to an effective writ, and, having prayed for greater relief than they of right can demand, an amendment may be desired. The statute prescribes what shall constitute the pleadings in mandamus proceedings, and provides that these formal allegations of the parties are to have the same effect, and may be amended in the same manner, as pleadings in an action: B. & C. Comp. § 612. In State ex rel. v. Crites, 48 Ohio St. 142 (26 N. E. 1052), it was ruled that where, upon a petition in mandamus, an alternative writ is issued commanding a. number of acts, either separate or connected, to be done by the defendant, the relator is entitled to a peremptory writ for such distinct acts or parts of connected acts as he may show a right to have performed, where there is no such mutual dependence between the several acts or parts of acts that they cannot be separated or divided. 'A mandatory writ, properly framed, alleging tbe required facts, and addressed to all the officers of the City of Portland who are indispensable in taking the necessary successive steps required successfully to -prosecute persons for violating the law prohibiting gambling, will, in our opinion, tend to suppress the evil. If the chief of police refuses or wilfully neglects to inform against and diligently prosecute any and all persons whom he shall have reasonable cause to believe guilty of a violation of the provisions of the act prohibiting gambling, he shall be deemed guilty of a misdemeanor, and on conviction thereof in a criminal action instituted for that purpose will be punished and the court so trying him will declare his office vacant for the remainder of his term : B. & C. Comp. § 1951. The command of an alternative writ of mandamus is equivalent to a conclusion of law, deducible from the facts alleged, showing the particular act which the law specifically enjoins as a duty resulting from an office, trust, or station (B. & C. Comp. § 605); the failure, neglect, or refusal of the defendant to comply therewith; and the right of the relator to insist upon its specific performance. It is the mandatory part of the writ, however, that a party defendant must look to discover the specific act which he is commanded to perform. Though it may be possible that the right to a part of the relief sought against the chief of police may be stated in the writs, the rule in this State is that, when a demurer to a complaint is sustained on the ground that several causes of action have been improperly united, the complaint is completely overthrown, and the plaintiff can only proceed by filing an amended complaint containing the cause of action which he elects to pursue: Cohen v. Ottenheimer, 13 Or. 220 (10 Pac. 20).

As an alternative writ of mandamus stands for a complaint in an ordinary action (McLeod v. Scott, 21 Or. 94, 26 Pac. 1061, 29 Pac. 1), the judgment must be. reversed, the peremptory writs set aside, and the cause remanded, with directions to sustain the demurrers in the particulars indicated herein, and for such other proceedings as may be necessary, not inconsistent with this opinion; and it is so ordered. Reversed.