49 P. 843 | Or. | 1897
Opinion by
This is a suit to restrain the county clerk of Umatilla County from issuing to Zoeth Houser a county order for services performed by him as sheriff. The plaintiff alleges that he is a resident taxpayer of Umatilla County, and that Zoeth Houser is sheriff, William Martin county
The right of a taxpayer, in his own name, to have a municipal corporation and its officers restrained from illegally creating debts, thereby increasing the burden of taxation, has been recognized in this State (Carman v. Woodruff, 10 Or. 133; Wormington v. Pierce, 22 Or. 606, 30 Pac. 450; Sherman v. Bellows, 24 Or. 553, 34 Pac. 549; State v. Pennoyer, 26 Or. 205, 25 L. R. A. 862, 37 Pac. 906; Dorothy v. Pierce, 27 Or. 375, 41 Pac. 668); and hence the important questions raised by the demurrer are whether there is a misjoinder of causes of suit, and, if not, does the complaint state facts sufficient to entitle plaintiff to the relief demanded, or any part thereof.
Assuming that the money alleged to have been drawn from the county treasury by Houser prior to May, 1896, was so drawn upon county orders illegally authorized by the County Court, and that the county, in its corporate capacity, or upon the relation of a proper person, may maintain an action for its recovery, can the plaintiff in his own name assert a similar right, or Gompel the sheriff to account for or pay it over to the county treasurer? It would seem, upon principle, that the right of a taxpayer in his own name to restrain a municipal corporation and its officers from illegally creating a debt or disposing of the corporate property or funds must rest upon the doctrine of necessity for prompt action on the part of some one to prevent a threatened injury to the public; and, as the taxpayer is one of the persons who will be injuriously affected by the misapplication of the funds of the corporation by the agents thereof, and must necessarily be compelled to bear an additonal burden if the menace be
The complaint having alleged that Houser unlawfully obtained from Umatilla County the sum of $6,684.59, which it prayed he' might be required to account for and repay, if the facts thus stated were relied upon as constituting an independent cause of suit, the demurrer for misjoinder was no doubt properly sustained; but we think a fair interpretation of, the pleading leads to the conclusion that the facts so stated were relied upon only as furnishing an offset to the sheriff’s account of May, 1896, for board of prisoners, $22.57, and salary for two months, $416.66, which it is admitted were proper charges against the county. The plaintiff claims that the County Court ought not to have audited these two items of the sheriff’s account, for the reason, as he alleges, that Houser had theretofore received other sums in excess thereof to which
We come now to an examination of the sufficiency of the complaint to state a cause of suit for injunctive relief. Counsel for defendants contend that the general demurrer should have been sustained, for the reason that the salary law upon which the plaintiff relies contravenes subdivision 10 of section 23, article IV, of the State constitution, which inhibits the passage of special or local laws for the assessment and collection of taxes for state, county, township, and road purposes. In Northern Counties Trust v. Sears, 30 Or. 388 (41 Pac. 931, 35 L. R. A. 188), Mr. Justice Wolverton has so completely and lucidly met and answered this objection as to render any further examination of the question unnecessary.
It is also contended that the County Courts having audited Plouser’s claim, thereby exercised a judicial discretion in determining the amount due him, and if a mistake were made in the conclusion reached it was, in the absence of” any allegation of fraud, one of law and not of fact, which precludes the county, even, from maintaining an action thereon. There is seemingly quite a conflict of decisions upon this question, some courts holding that the same reasons which would prevent an individual from recovering back money thus paid should prevail, in the absence of fraud, against a municipal corporation (Advertiser Co. v. Detroit, 43 Mich. 116, 5 N. W. 72; County of Wayne v. Randall, 43 Mich. 137, 5 N. W. 75; Cox v. Mayor of New York, 103 N. Y. 518, 9 N. E. 48 while others hold that a county may offset against the saiary of a county official moneys received by him irom its treasury
The unpaid bill of May, 1896, contains, among others, the following charge: “Mileage, $221.60.” The statute, having prescribed an annual salary for the sheriff, precludes any charge for expenses incurred on account of travel necessitated by the performance of his official duties in Umatilla County. Nor is he entitled to compensation for “mileage,” as'such, when compelled to travel in another county or state to make an arrest or receive a prisoner. The County Court having audited and allowed this item, it, no doubt, considered that the charge was a valid claim against the county for expenses incurred by the sheriff in being compelled to travel in another county or state; but, before he can claim to be reimbursed therefor, he must file with the county clerk an account of his actual and
As to the other items of the sheriff’s bill of May, 1896, they are, no doubt, proper charges against the county, and such as the County Court ought to allow. It is evident that the business pertaining to the sheriff’s office can be more expeditiously transacted by permitting the sheriff to make use of the telephone and telegraph in the performance of his official duties. Deprived of these means for the rapid transmission of information, he would be unable to cope with expert criminals, and Umatilla County would become a paradise to law-breakers who were not caught in the act of violating the law. The item, “sundry bills, $100.87,” having been audited and allowed, is, no doubt, a proper charge against the county, but a memo
Reversed.