Morin v. Multnomah Co.
22 P. 490
Or.
1889
Check Treatment
Thayer, C. J.

Uрon what principle a county m this State can be made liable in a case like the one under consideration I аm unable to discover. That a county is a mere creation of the statute, and has no authority whatever beyond that whiсh is delegated to it by the legislature, certainly ought to be understood by laymen as well as lawyers. Both classes should understand that county officials have no inherent authority, and can only do those acts which the legislature has prescribed. This rule hоlds good with regard to every inferior officer or tribunal, as well as to every civil or political agency of the government deputed to exercise ‍‌‌‌​‌​​​​​‌​​​​‌​‌‌‌​​​​‌‌​​​​‌‌​‌​‌​​‌‌​​‌‌‌‌‌​‍special and limited powers. In this case there was no contract between the county and the respondent for the payment of money by the former to the latter on account of the matters alleged in the complaint, either express or implied. The county had no authority to enter into any such contract, for the simple reason that the legislature has not granted it the power to do so. Perhaps it would be well if county courts were authorized to reimburse witnesses for their loss of time when detained under such circumstances; but that is a matter for the cоnsideration of the legislature, and not for the courts. The latter cannot *166make law, whatever emergency may arise, or however justly it might operate in the particular case. The people, wisely or unwisely, have intrusted that power to another department of the government. Nor did the county neglect or violate any duty it owed to the respondent. He was held as a, witness by order of the police judge, exercising the powers of an examining magistrate, which was the exercise of an authority vested in the magistrate by law, and which the county had no right whatever to control. If the magistrate аcted improperly in the affair, he alone was responsible for it, and no neglect or wrong on account thereof is chargeable upon the county. The respondent is supposed to have been held and detained as a witnеss to answer the ends of justice, in obedience to a positive statute, and the county authorities had no discretion in thе matter. But, say the respondent’s counsel, the constitution of the State provides that the particular services of аny man cannot be demanded without ‍‌‌‌​‌​​​​​‌​​​​‌​‌‌‌​​​​‌‌​​​​‌‌​‌​‌​​‌‌​​‌‌‌‌‌​‍just compensation. Conceding that the detention of the respondent for the purpose of giving testimony against the party who he claimed had unlawfully mutilitated his person was a demand of particular services within the meaning of the constitutional provision referred to, still, how can he claim compensation therefor as against the county of Multnomah ? The duty of providing for the observance of such provision does not devolve upon counties. They are not the proper institutions to provide for such compensation. The duty belongs to the legislature; аnd, if it has failed in the performance thereof, it does not follow that a county must pay for such services. The respоndent might properly have refused to remain and testify as a witness in such case upon the ground that no compensation was provided for the payment of his services; and if the police judge had, notwithstanding, committed him to prison, it would have been an unlawful imprisonment, and he could have been released upon habeas corpus, and had his remedy for false imprisonment. This, it seems to me, is the only remedy the ‍‌‌‌​‌​​​​​‌​​​​‌​‌‌‌​​​​‌‌​​​​‌‌​‌​‌​​‌‌​​‌‌‌‌‌​‍respondent could invoke, if the view contended for by his counsel were correct; unless *167we include as a remedy the right to petition ‍‌‌‌​‌​​​​​‌​​​​‌​‌‌‌​​​​‌‌​​​​‌‌​‌​‌​​‌‌​​‌‌‌‌‌​‍the legislature for a relief bill.

But are the services claimed by the respondent “thе particular services ” which ‍‌‌‌​‌​​​​​‌​​​​‌​‌‌‌​​​​‌‌​​​​‌‌​‌​‌​​‌‌​​‌‌‌‌‌​‍the constitution says shall not be demanded without just compensation? In Daly v. Multnomah Co., 14 Or. 20, we held that the servicеs of witnesses called to testify in criminal cases, where the witness resided within two miles of the place of trial, or the piace where they were required to appear and testify, were not particular services, but were of the clаss of general services which every man was bound to render for the genera], as well as his own individual good; and therefore that the law of 1885, which refuses compensation in such cases, was not in violation of said provision of the constitution. Cоunsel for the respondent urge, however, that there is a distinction between that class of cases and the one in question; but I fail to perceive any in principle. Said counsel have also referred us to the Eleanor Higginson case, 1 Cranch, C. C. 73. In that case the party was ordered to enter into are cognizance, with surety, in a small sum, to appear and testify аs a witness against a defendant charged with felony; but being a stranger, and unable to get surety, was committed to prison, and detаined until the trial. The attorney for the United States moved the court that she should be allowed payment for her attendance during the wholfi time she was so detained. The Act of congress only provided for the payment of the prison fees, and made no allowance for the time of the witness. The court allowed the witness to prove her attendance, and оrdered her to be paid for the whole time she was detained; it being her misfortune, and not her fault, that she could not obtain sеcurity for her appearance. This obviously was a very generous act upon the part of the attorney and thе court, but affords no precedent in support of the respondent’s right of action. The jurisdiction of the courts of this Statе cannot be extended tó acts of charity or generosity, however strong the kindly impulses of the members thereof may inclinе them in that direction: but it must be confined *168strictly to the adjudication of matters in accordance with the rules of statutory and common law.

The judgment appealed from must be reversed, and the case remanded to the circuit court, with directions to dismiss the complaint.