133 P. 1173 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
The act under consideration was passed by the House of Representatives, February 14, 1913, by the Senate the twenty-fifth day of the month, received by the executive department on February 27th and filed with the Secretary of State on the same day. By reason of matters purely political the legislature did
Those provisions of the act pertinent to an understanding of the statute recount that the county treasurer of the several counties of the state shall, on the first Monday in June of each year, designate such banks and trust companies within the respective counties as have become eligible county depositaries, for the purpose of receiving on deposit funds of said county. The applicants must qualify in this manner: They shall, on or before the first Monday in June of each year, file applications in writing with the county treasurer, accompanied by a sworn statement of their financial condition. The county treasurer shall pass upon the same, and shall stamp upon the application either the word “Approved” or “Rejected,” append his signature, and submit the same to the district attorney, together with all securities offered for protection of the county funds, who shall, upon receipt thereof, and after examination, advise the county treasurer as to their legality. No securities shall be approved, unless their market value shall equal the amounts of deposits applied for by any bank. The statute further provides that the county treasurer shall deposit, and at all times keep on deposit in the county depositaries, all of the moneys of the county coming into his hands, and which funds shall be deposited in the depositaries in proportion that the capital and surplus of the depositaries bear to the total public funds; that such deposits shall be subject to payment when demanded by the county treasurer, and the depositaries shall be required to pay the county for the privilege of holding the funds, interest at the rate of 2 per cent per annum on the daily average deposits.
On the surface of this proceeding it is obvious the statute did not become vitalized until a day subsequent to the time specified in the act for the selection of depositaries, and, on account thereof, it is argued defendant could designate no depositaries until the intervention of a year; that is, until the first Monday in June, 1914.
Section 1 of the act reads: “It shall be the duty of the county treasurer * * to designate such banks and trust companies * * as have * * become eligible county depositaries. * * The county treasurer shall pass upon the application,” sign the same, and stamp thereon “Approved” or “Rejected,” and “transmit to the district attorney such application, together with
Section 2 provides: “The county treasurer shall deposit, and at all times keep on deposit in the county depositaries, * * all the moneys of the county coming into his hands,” etc.
Considering the enactment in question, we believe the county treasurer of the several counties in this state must select depositaries for county funds, subject only to the controlling influences of a sound discretion in the matter of the financial strength and qualifications of a depositary and the form of the application’as detailed by the statute.
The demurrer to the writ must be overruled.
Demurrer Overruled.
Dissenting Opinion
delivered the following dissenting opinion:
At the suit of the State of Oregon, on relation of the First National Bank of Klamath Falls, an alternative writ of mandamus has been issued out of this court, directed to the defendant as county treasurer of Klamath County. It recites that on June 2, 1913, the bank made application to defendant to be designated as a
The act of February 27, 1913, being Chapter 273 of the laws of that year, provides: “It shall be the duty of the county treasurers of the several counties of the State of Oregon, on the first Monday in June of each year to designate such banks and trust companies within the respective counties as have, under the provisions of this act become eligible county depositaries for the purpose of receiving on deposit funds of said county and paying out the same on order, or check of the county treasurer. Such banks and trust companies shall qualify as county depositaries as follows : The banks and trust companies, applying to be made depositaries under the provisions of this act, shall on or before the first Monday of June of each year, -file application in writing with the county treasurer, said application to be accompanied with a sworn statement of the financial condition of said bank, or trust company at the time said application is made. The county treasurer shall pass upon the application made in compliance with this act and shall stamp upon said application ‘Approved,’ or ‘Rejected,’ and the same shall be duly signed by the county treasurer and it shall be the duty of the county treasurer to transmit to the district attorney such application, together with all securities offered for protection of the county funds, and it shall be the duty of the district attorney upon the receipt of such application, and securities, to pass upon the same, and advise the county treasurer as to their legality.” It is also provided, in substance, that before any such application shall be approved, it shall be accompanied by a bond secured by a duly qualified surety company, guaranteeing the
Section 28, Article IV of the Oregon Constitution states: “No act shall take effect until ninety days from the end of the session at which the same shall have been passed, except in case of emergency. * * ’ ’ The session of the legislative assembly at which the act in question was passed ended March 4,1913. The 90-day period thereafter expired on Monday, June 2, 1913, the same being the first Monday of that month: hence the law became effective only on the day following. The statute is prospective in its terms. On the first Monday of June of the present year there was no law in any way qualifying or repealing the statute making the treasurer the custodian of all the county funds. Hence no petition could regularly have been filed at the time prescribed in the statute, namely, on the first Monday of June, 1913. If the statute had said that petitions should be filed on the second Monday of August or December of each year, no one would contend that the treasurer could anticipate the date on which he could designate the depositaries. The reason of the rule is the same when applied to the actual dates involved. No duty is enjoined upon the treasurer until the time named in the statute. If he can take it upon himself to designate a depositary either before or after the day named in the statute, the exercise of power is discretionary, and cannot be controlled by mandamus.
It is said in the law that the petition must be presented on or before the first Monday of June of each year. It is then made the duty of the county treasurer to “pass upon the application made in compliance with
It is said in Section 613, L. O. L., that a writ of mandamus “may be issued to any inferior court, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; but though the writ may require such court, corporation, board, officer, or person to exercise its or his judgment, or proceed to the discharge of any of its or his functions, it shall not control judicial discretion.” The general rule in such instances is that the court by the extraordinary writ of mandamus may compel the
The demurrer should be sustained.