Brownfield v. Houser

• Decision Date: 31 July 1897
• Citation: 49 P. 843,30 Or. 534
• Parties: BROWNFIELD v. HOUSER et al.
• Court: Oregon Supreme Court

49 P. 843

30 Or. 534

BROWNFIELD v. HOUSER et al.

Supreme Court of Oregon

July 31, 1897

mAppeal from district court, Umatilla county; Stephen A Lowell, Judge.

Action by C.W. Brownfield against Zoeth Houser and others. Decree for defendants. Plaintiff appeals. Reversed.

This is a suit to restrain the county clerk of Umatilla county from issuing to Zoeth Houser a county order for services performed by him as sheriff. The plaintiff alleges: That he is a resident taxpayer of Umatilla county, and that Zoeth Houser is sheriff, William Martin, county judge, John H. Adams and T.P. Gilliland are county commissioners, and Benjamin S Burroughs is county clerk of said county. That said sheriff is entitled by law to receive from said county an annual salary of $2,500, and, in addition thereto, certain compensation for the board and keeping of persons imprisoned in the county jail, and also his actual and necessary expenses when required to travel in another county or state to make an arrest or receive a prisoner. That in May, 1896 the county court audited a claim of said sheriff for $1,067.25, of which the following items were illegally allowed: Inland Telephone & Telegraph Company, $23.50; Blue Mountain Telephone & Telegraph Company, $1.25; mileage $221.60; expenses of Laura Stickler to Refuge Home, $50; fare of Fred Loyd to Echo, $2.25; Daniel McKeen, fare to reform school, $14; fare and expenses of G.W. Hull to Roseburg, $14.55; sundry bills, $100.87. That the warrant therefor has not been issued, but the county clerk threatens to draw and deliver the same to the said Houser, and, unless restrained, will carry his menace into execution, thereby injuriously affecting plaintiff's pecuniary rights as a taxpayer, for which injury, if permitted, he has no adequate remedy at law. That the county court at its regular terms from September, 1894, to March, 1896, illegally audited and allowed accounts presented to it by Houser for services claimed to have been performed, the items of which are set out, whereby he has been permitted to draw from the treasury of said county the sum of $6,684.59 more than he was entitled to receive,--and prays that he may be required to account for and pay into the county treasury all moneys so illegally drawn therefrom, and that the county clerk may be enjoined from issuing to him any county orders for services claimed to have been performed by him. A demurrer to the complaint on the grounds that it did not state facts sufficient to constitute a cause of suit, that several causes were improperly joined, and that plaintiff had no legal capacity to sue, having been sustained for alleged misjoinder, the plaintiff declined to plead further, whereupon a decree was rendered dismissing the suit, from which he appeals.

J.J. Balleray, for appellant.

L.B. Reeder and Jas. H. Raley, for respondents.

MOORE C.J. (after stating the facts).

The right of a taxpayer, in his own name, to have a municipal corporation and its officers restrained from illegally creating debts, thereby increasing the burden of taxation, has been recognized in this state. Carman v Woodruff, 10 Or. 133; Wormington v. Pierce, 22 Or. 606, 30 P. 450; Sherman v. Bellows, 24 Or. 553, 34 P. 549; State v. Pennoyer, 26 Or. 205, 37 P. 906, and 41 P. 1104; Dorothy v. Pierce, 27 Or. 375, 41 P. 668. And hence the important questions raised by the demurrer are whether there is a misjoinder of causes of suit, and. If not, does the complaint state facts sufficient to entitle plaintiff to the relief demanded, or any part thereof? Assuming that the money alleged to have been drawn from the county treasury by Houser prior to May, 1896, was so drawn upon county orders illegally authorized by the county court, and that the county, in its corporate capacity, or upon the relation of a proper person, may maintain an action for its recovery, can the plaintiff, in his own name, assert a similar right, or compel the sheriff to account for or pay it over to the county treasurer? It would seem, upon principle, that the right of a taxpayer in his own name to restrain a municipal corporation and its officers from illegally creating a debt or disposing of the corporate property or funds must rest upon the doctrine of necessity for prompt action on the part of some one to prevent a threatened injury to the public; and since the taxpayer is one of the persons who will be injuriously affected by the mis-application of the funds of the corporation by the agents thereof, and must necessarily be compelled to bear an additional burden if the menace be carried into execution, equity considers him a real party in interest, and, as a trustee for the public, permits him to invoke injunctive relief. But, where the officers of a municipality have already misapplied its funds, the mischief is accomplished and the injury completed, in which case the necessity for an extraordinary remedy does not exist. To allow a taxpayer in his own name to maintain an action to recover corporate property or funds after they had been diverted would be equivalent to opening wide the doors to an indefinite number of actions by persons similarly situated, thereby subjecting the officers and corporation to interminable litigation. 2 Dill.Mun.Corp. § 921. When the injury is complete the unlawful diversion of public funds falls directly upon the municipal corporation and remotely upon each taxpayer; and, since the corporation is the actual party sustaining the direct result of the injury, so should it also be the real party in interest, either in its own corporate name, or upon the relation of a...