Bridges v. Multnomah County

• Decision Date: 29 April 1919
• Citation: Bridges v. Multnomah County, 92 Or. 214, 180 P. 505 (Or. 1919)
• Parties: BRIDGES ET AL. v. MULTNOMAH COUNTY.
• Court: Oregon Supreme Court

180 P. 505

92 Or. 214

BRIDGES ET AL. v. MULTNOMAH COUNTY.

Supreme Court of Oregon

April 29, 1919

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Suit by J. B. Bridges and another, copartners, doing business under the firm name of Bridges & Webber, against Multnomah County.Judgment for plaintiffs, and defendant appeals.Reversed and remanded.

There was a verdict and judgment for the plaintiffs, J. B. Bridges and F. T. Webber, who are partners.The defendant, Multnomah county, appealed.The complaint avers that the defendant employed the plaintiffs, who are architects, to make plans and sketches for a hospital; that pursuant to the employment the plaintiffs made plans which were approved by the agents of the defendant, and then submitted to the county for its approval, but "the board of county commissioners of Multnomah county deferred action on the matter and left the matter open for determination."The next three paragraphs found in the complaint are as follows:

"IV.That on January 21, 1914, the plaintiffs presented their bill for said services to the board of county commissioners of Multnomah county for the reasonable value of said services performed in the sum of 1 per cent. of the estimated cost of said Multnomah County Hospital of $400,000, or $4,000.That said bill in said matter has been under consideration by the board of county commissioners and on July 23, 1917, the board of county commissioners ordered, on motion of Commissioner Holman, the bill of Bridges & Webber, architects, dated January 21, 1914, for services said to have been rendered for making preliminary plans for the proposed new Multnomah County Hospital, be and the same is hereby disallowed.

"V.That the reasonable value of said services so performed by plaintiffs for Multnomah county under said employment is the full sum of $4,000.

"VI.That payment of the same has been demanded, and payment of the same has been refused by Multnomah county on July 23 1917, and no part thereof has been paid."

The answer admits the partnership of the plaintiffs, the existence of the defendant, and also the last sentence in paragraph 4, and denies the remainder of the complaint.

George Mowry, Deputy Dist. Atty., of Portland (Walter H. Evans Dist. Atty., and George Mowry, Deputy Dist. Atty., both of Portland, on the brief), for appellant.

Ralph R. Duniway, of Portland, for respondents.

HARRIS J.(after stating the facts as above).

The county contends that the pleadings do not support the judgment, for the reason that there is no averment in the complaint or in the answer that the plaintiffs presented their claim to the county auditor.There is no bill of exceptions, and consequently the only question for decision is whether the pleadings are sufficient to enable the judgment to stand.Section 3048, L. O. L., among other things, provides as follows:

"The county auditor shall be the accounting officer for the county.All demands, accounts, or claims against the county shall be presented to him with the necessary evidence in support thereof, and he shall examine and audit the same, and if he finds such demands, accounts, or claims correct, lawful, just, and valid, indorse them as audited and approved, with the date thereof, and report them to the county court or board of county commissioners on the first Thursday after the first Monday of each month, or as soon thereafter as possible, and at such other times as they require, together with such suggestions and explanations as he may deem proper; and if a demand, claim, or account and evidence in support thereof is not sufficient to satisfy him as to its correctness, lawfulness, justness, or validity, he shall indorse the same as audited and rejected, with date thereof, and report the same to the county court or board of county commissioners at the same time and place as those duly approved, with such explanation as he may deem necessary."

Section 3049, L. O. L., reads thus:

"Any law, rule, or regulation providing for the payment of any demand of whatsoever kind or nature, except only the salary of the county auditor, hereinafter provided for, out of the treasury or any fund thereof, whether from public funds or private funds deposited therein, shall always be construed as requiring the auditing and approval of such demand by the county auditor, and an order of the county court or board of county commissioners before the same shall be paid.No order or warrant for the payment of any demand shall be valid, either in the hands of the original payee or holder, or any transferee or assignee thereof, unless the demand for which the same was issued shall have been first duly audited and approved by the county auditor, as in this act provided."

In substance, section 3050, L. O. L., provides that no demand shall be allowed by the auditor in favor of any person indebted to the county without first deducting such indebtedness.Section 3052, L. O. L., directs that the salary of the auditor shall be audited, allowed, and ordered paid by the board of county commissioners and that:

"All other demands on account of salaries, or otherwise, fixed by law or otherwise and made payable out of the treasury, must be approved by the auditor before being ordered paid."

Thus it is seen that the auditor "shall be the accounting officer for the county," and that all claims against the county "shall be presented to him"; that "he shall examine and audit" every claim, and, after approving or rejecting it, he is required to report it to the board of county commissioners.Not satisfied with the comprehensive language used in section 3048, where it is said that "all demands, accounts, or claims against the county shall be presented" to the auditor the Legislature took the added precaution of expressly saying in section 3049 that future laws, "providing for the payment of any demand of whatsoever kind or nature," shall always be construed "as requiring the auditing and approval of such demand by the county auditor, and an order of the county court or board of county commissioners before the same shall be paid."

The command that all claims must first be presented to the auditor and audited by him before being ordered paid by the board of county commissioners is made still more imperative by section 3049, where we read that:

"No order or warrant for the payment of any demand shall be valid, * * * unless the demand for which the same was issued shall have been first duly audited" by the county auditor.

Finding, as we do, a statute which declares in positive and unmistakable language that a claim against the county must be presented to the auditor before it is ordered paid by the board of county commissioners, we now inquire whether the plaintiffs must allege that they complied with the requirements of the statute by presenting their claim to the auditor.

Legislation requiring that claims against municipalities shall be presented to some designated officer or tribunal is common to all the states of the Union.It is interesting to note that while a majority of the courts hold that when a statute requires the presentation of a claim to a designated officer the fact of such presentation becomes a material matter which must be alleged in the complaint, there are nevertheless a few jurisdictions which entertain variant views.In Wisconsin it is held that legislation appertaining to the presentment of claims against municipalities is analogous to statutes of limitations and governed by like rules; and hence a failure to comply with the statute is waived unless the municipality takes advantage of the omission by demurrer or answer.O'Connor v. Fond du Lac,109 Wis. 253, 85 N.W. 327, 53 L. R. A. 831.Proceeding on the theory that the...