Linklater v. NybergLinklater v. Nyberg
This is an appeal by the defendant Clayton Nyberg, a county commissioner of Washington county, from the allowance of a peremptory writ of mandamus commanding the defendant to audit and approve a voucher for the payment of money out of the “enforcement fund” created by
The record discloses the following facts: On June 28, 1962, the court caused to be issued an alternative writ of mandamus directed to Clayton Nyberg and Barbara A. Wilcox, county commissioners, and Lena Delplanche, county treasurer of Washington county. The writ recites that the county judge, Joe A. Jaross, was absent from the state. It states that the sum of $1,395 was in the enforcement fund and the unspent portion thereof would be transferred to the general fund of the county on June 30, 1962; that on June 28, 1962, the plaintiff approved, exhibited to, and filed with the defendants Nyberg and Wilcox, as county commissioners, his formal voucher drawn against the liquor enforcement fund for the sum of $1,395 and in favor of Russ Todd to pay for certain alteration work done by Russ Todd upon plaintiff’s offices in the Washington county courthouse (which work is described in some detail to show its connection with enforcement of the state’s liquor laws) and that the defendants Nyberg and Wilcox refused, without legal cause, to audit and approve the said voucher.
The writ commanded the defendants to approve and pay the voucher from the liquor enforcement fund or, in lieu thereof, to appear at 4 p.m. on June 29, 1962, and show cause why they had not done so.
The defendant Nyberg was served with the writ on June twenty-eighth. The other defendants were not served. The defendant Barbara A. Wilcox appears to have signed approval of the expenditure on June 28th. Nyberg, to whom we shall hereinafter refer as the defendant, filed, on June 29th, a motion for a continuance, a demurrer and an answer, and on the *120 same- day the court, after a hearing, issued a peremptory writ.
It appears, however, that the money was paid to Euss Todd by the county treasurer on June 29, 1962, and that county judge Jaross signed approval of the expenditure some time after December 17, 1962 (the exact date is not disclosed); and these facts are the basis of a motion to dismiss the appeal as moot. The motion, previously was denied by this court, with leave to renew it in the briefs and on the oral argument. The motion has been renewed and will now be reconsidered.
Since the object of the proceeding was to compel payment of $1,395 to Euss Todd out of the enforcement fund and that is now
fait accompli,
nothing remains for the writ to operate upon and the case in that sense has become moot,
Dimick v. Latourette,
That question is whether the county courts of this state are required to approve the use of moneys in the enforcement fund whenever the district attorney of the county has approved the expenditure as one proper to be made in the enforcement of the Liquor *121 Control Act. We think that they have discretion either to approve or disapprove such expenditures and that any uncertainty as to the power and responsibilities of public officials charged with the administration of this fund which might result from dismissal of this appeal should be removed.
“* * * warrants for any expenditures in the enforcement of that statute, which have been approved by the district attorney of said county, shall be drawn on this fund. All claims shall be verified by the claimants or persons having knowledge or supervision of the expenditures and shall be audited by the county court in the usual manner before presentation for payment thereof. * * *”
“To ‘audit’ ”, says the New York Court of Appeals, “is to hear and examine and includes both the allowance and disallowance of a claim.”
N.Y.C. Protectory v. Rockland County,
The statute under consideration provides that the claims shall be audited “in the usual manner.” Some idea of what the legislature intended by this language may be gathered by referring to the statutes which define the duties and powers of the secretary of state when acting by virtue of his office (Constitution of Oregon, Art VI, § 2) as auditor of public accounts. See
The mistake of the plaintiff was in assuming that, once he had signed approval of the voucher the duty of the county court to approve it followed as a mere ministerial act. That, we think, was also the mistake of the court in ordering issuance of the peremptory writ of mandamus. Since the allowance of the claim rested “upon the exercise of the discretion of the defendant” the writ could not require him to allow it.
State ex rel Overhulse et al v. Appling,
supra,
In view of this conclusion there is no occasion to consider now the contentions of the defendant that the expenditure in question is one that could only be authorized by the county court under the power vested in it by OES 203.120 to provide for the erection and repair of courthouses and other county buildings, and that moneys in the enforcement fund cannot be legally used to pay a bill incurred for the alteration of the offices of the district attorney. If, as counsel for the defendant indicated might 'be done, an action to recover the moneys paid out to Euss Todd should be brought by the county, these questions can then be determined.
We add that we do not approve the unseemly haste which characterized this proceeding. There was no *123 emergency which, justified it. In the ordinary, ease a defendant is given ten days in which to plead to a complaint and ample time thereafter in which to prepare for trial. In this case the defendant had 24 hours in which to do all of this. He consulted an attorney who prepared his pleadings, but who, because of a previous commitment, was unable to appear and represent the defendant at the hearing. As stated, the defendant moved for a continuance. No order disposing of this motion appears in the record, though obviously it was denied. It should have been allowed and the case permitted to proceed in orderly fashion with full opportunity to the defendant in person and by attorney to present his defense.
The judgment is reversed.
Notes
(2) *****