Bennett Trust Co. v. Sengstacken

• Decision Date: 07 March 1911
• Citation: 113 P. 863,58 Or. 333
• Parties: BENNETT TRUST CO. et al. v. SENGSTACKEN et al. [d]
• Court: Oregon Supreme Court

113 P. 863

58 Or. 333

BENNETT TRUST CO. et al. v. SENGSTACKEN et al. ^[d]

Supreme Court of Oregon

March 7, 1911

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Complaint in equity by the Bennett Trust Company, a corporation, and the Southern Oregon Company, a corporation, against Henry Sengstacken and others. Issues heard on the pleadings, and from a decree dismissing the suit, plaintiffs appeal. Decree affirmed on rehearing.

At the twenty-fifth regular session of the Legislative Assembly of this state that body enacted a law entitled, "An act to provide for incorporation under general law of ports in counties bordering upon bays or rivers navigable from the sea or containing bays or rivers navigable from the sea, and to provide for the manner of incorporating such ports and defining the powers of ports so incorporated and declaring an emergency." Laws Or. 1909, p. 78, c. 39. Section 2 of the act provides a form of petition to be addressed to the county court within whose county the territory of the proposed port is situated, asking for an election at which the question of the incorporation of the port may be submitted to the legal voters of the territory to be included in the boundaries of the port. Under section 3, if, on examination of the petition, it appears therefrom that it contains the names of 8 per cent. of the legal voters of the district, the "county court shall call a special election to be held within such proposed district, to be held not less than forty days, or more than sixty days, as such court shall determine." No complaint is made anywhere in the proceedings before us that the election in question here was not held more than one day; hence only this passing notice will be given to that point. The judges and clerks appointed by the county court for the preceding general election are required to officiate in their respective capacities at the special election thus called. Again, in section 3 it is required that "the polls shall be kept open between the hours provided for in cases of general elections and notice of the time of such special election shall be posted in each polling precinct in which such measure is to be voted upon in like manner as is provided for in cases of general elections. The judges and clerks shall return the canvass of the vote, together with the ballots cast to the county clerk of the county in which the election is held, and on the seventh day after the election the county court shall hold a special session and proceed to canvass such vote, and if upon such canvass it appears that a majority of the votes cast at such special election have been cast in favor of such incorporation such county court shall cause to be entered upon the journal of such court a proclamation," according to a form set out in said section. Under section 6 from and after the date of the proclamation made by the county court that portion of the county embraced in the limits defined by the proclamation is declared to be a municipal corporation with sundry powers among which are the issuance of bonds and the levy and collection of taxes. Section 8 provides, in substance, that the power and authority given to corporations organized under the provisions of this act is vested in and specially exercised by a board of commissioners, five in number, each of whom shall be a qualified voter within the limits of said corporation. Within 10 days after the issuance by the county court of the proclamation above mentioned, the Governor shall appoint a board of five commissioners, qualified as aforesaid, who are required to meet at such place within the limits of said corporation, as the Governor shall designate on the fifth day after the appointment, and to organize as a board. The term of office of commissioner shall be determined by lot at the first meeting of the board. Two shall hold office until the 1st day of January next following the succeeding general election, and the remaining three shall hold office until the 1st day of January following the second general election. Afterwards they are regularly elected for the term of four years at the general elections. Section 10 reads thus: "It is hereby adjudged and declared that existing conditions are such that this is necessary for the immediate preservation of the public peace, health and safety, therefore, an emergency is hereby declared to exist and this act shall take effect and be in full force and effect from and after its approval by the Governor."

Without affirmatively approving or disapproving the act in question the Governor filed it in the office of the Secretary of State February 12, 1909. The session of the Legislative Assembly at which the act was passed ended February 20, 1909. All things of which plaintiffs complain, from the signing and filing of the petition to and including the organization of the board of commissioners, occurred between February 12 and May 12 1909. The pleadings agree that a petition signed by more than 8 per cent. of the legal voters of the proposed port district was presented to the county court at the first day of the March term, 1909, and that thereupon the county court ordered a special election to be held April 19, 1909. The complaint alleges in substance, that there are 45 judges and 45 clerks in the precincts included in the proposed port district; that the county clerk mailed two notices of the special election to each of the judges and clerks, 180 in all, but that 19 of the election officers residing in various precincts "wholly failed to post the notices of said special election as required by law," and alleges on information and belief that 23 others residing in various precincts "failed to post any notices of said special election, as

by law required or otherwise or at all"; that one judge posted only one notice in his precinct, and that in six precincts the notices were posted by persons not election officers. The plaintiffs further charge that the election returns were forwarded to the county clerk in the manner provided by general election laws, but not as provided for by the port law; that on April 21, 1909, the county clerk, together with two other persons whom the evidence shows were justices of the peace, opened the envelopes containing the returns and "did, without authority of law, tamper with said returns; that is to say, did meddle therewith and did interest or engage themselves unnecessarily and impertinently therewith," etc., the effect of which is alleged "to create an uncertainty as to the true outcome of the election, *** and did render the election void." In this connection it appears from the evidence that, having received the election returns, the county clerk in the manner provided by the general election laws took to his assistance two justices of the peace of the county and made abstracts of the votes as disclosed by the returns, but it does not appear anywhere, either in the pleadings or in the evidence, that any ballot or election return was changed in the least or that any fraud was practiced by any one having anything to do with the election or the returns or the canvass.

It appears from the pleadings and evidence that on April 26 1909, the county court of Coos county made and entered of record on the county court journal an order and proclamation in the form prescribed by section 3 of the law in question proclaiming and declaring that part of Coos county described in the original petition to be duly and legally incorporated as a municipal corporation under the corporate name of the "Port of Coos Bay." The form of the proclamation, too long to reproduce in full here, contains a recital of the submission to the people of the question of incorporating the port, a statement of the vote for and against the proposition, and a declaration of the establishment and existence of the port as a municipal corporation. The vote was found by the returns of the election to be 992 for and 221 against the incorporation of the port. On May 5, 1909, the Governor of Oregon, in pursuance of the proceedings above described, appointed the five defendants as commissioners of the port of Coos Bay, designating Marshfield as the place of meeting. The complaint charges that on May 10, 1909, all the defendants except Evans met at Marshfield, elected Mingus chairman pro tem. and Sengstacken secretary pro tem., and adjourned to meet at the same place on May 12th at 10 o'clock a.m. At the adjourned meeting Evans was again absent so the four still further adjourned to and did meet at 1:30 p.m. of that day at Evans' room in North Bend, within the territorial limits of the port, where, all five being present, they elected Evans president of the board, Mingus vice president, Sengstacken secretary, and Gray treasurer, and ever since then have claimed to be the duly appointed, qualified, and acting commissioners of said port of Coos Bay. Afterwards, in September, 1909, according to the complaint, the defendants, claiming to act as such board of commissioners, enacted an ordinance, set out in full in the complaint, providing for the issuance of $500,000 in bonds of the port to mature in lots of $25,000 each, annually, in from 20 to 40 years after date, with interest at 5 per cent., payable semiannually, but making no provision to raise funds for their payment, either by taxation or otherwise. By the terms of the ordinance "the avails and proceeds from the sale of such issue bonds shall be expended in the improvement, promotion, extension and betterment of the conditions of navigation and in the development of the maritime and commercial interests of said port in manner as permitted by the general laws of the state of Oregon." The plaintiffs, as taxpayers on real and personal property subject to taxation within the...