Opinion by
Mr. Chief Justice Eakin.1. It is conceded by plaintiffs that no one except the city attorney is authorized to institute proceedings for the violation of city ordinances, and he has presented to the police judge no complaint or charge against John Doe and Richard Roe for obstructing the street; hence the writ contains no allegations of dereliction of duty on part of the municipal judge or his clerk. He is not a prosecuting officer and is not called upon to institute prosecutions in his own court, and therefore there is no cause stated against him: McLeod v. Scott, 21 Or. 94 (26 Pac. 1061: 29 Pac. 1). The only question is: Should the city attorney be required to file a complaint against *80the employees of the railroad company and prosecute them for obstructing the street?
2. Without determining whether his discretion in such a matter should be controlled by mandamus in any case, we conclude that mandamus cannot be resorted to upon the facts here disclosed. It is doubtful whether a quasi criminal proceeding can be maintained against the laborers for obstructing a street which the city has attempted to vacate and of which it now concedes the possession to the railroad company. The obstruction is occasioned by the authority of the city. The only purpose of plaintiffs in urging the prosecution is to have determined in a quasi criminal case the railroad’s right to the possession of the street, purely a disputed civil right, at the cost of the city instead of at the expense of the parties interested, which should not be permitted.
3. The scope of the ordinance and the regularity of its adoption are not questioned. The only question involved upon the writ is whether the ordinance vacating the street is suspended by the referendum petition. Mandamus will not issue in a doubtful case. Spelling, Extra. Rem. § 1370. If the city attorney or the council is of the opinion that the vacation ordinance took effect at once upon its adoption, and that there was no violation of the ordinance against the obstruction of streets, the court should not by mandamus compel the city attorney to bring a quasi criminal proceeding to determine whether the ordinance was suspended by the referendum petition. There are other and more appropriate remedies for that purpose. Therefore the writ does not state facts sufficient to entitle the plaintiffs to the relief sought.
The demurrer was properly sustained.
The judgment is affirmed. Affirmed.