Burnett v. Markley

• Decision Date: 16 January 1893
• Citation: 31 P. 1050,23 Or. 436
• Parties: BURNETT v. MARKLEY et al.
• Court: Oregon Supreme Court

31 P. 1050

23 Or. 436

BURNETT v. MARKLEY et al.

Supreme Court of Oregon

January 16, 1893

Appeal from circuit court, Benton county; MARTIN L. PIPES, Judge.

Action by John Burnett against J.R. Markley and others for an injunction. Plaintiff had judgment on demurrer to the complaint, and defendants appeal. Reversed.

The other facts fully appear in the following statement by BEAN J.:

This is a suit in equity to enjoin the county treasurer of Benton county from paying certain county warrants issued by the county in favor of defendants Markley & Dunstan, and comes here on appeal from a judgment of the court below overruling a demurrer to the complaint. The substance of the complaint is that on July 3, 1890, the county court of Benton county in the name and on behalf of the county, entered into a pretended contract with one J.R. Markley and one Henry Dunstan, by the firm name of Markley & Dunstan, to make out a description of real estate for tax rolls, to make out and copy into the books to be furnished by the county for that purpose a complete list of all the real estate in Benton county, Or., arranging in its order into lots and blocks sections, townships, and ranges, giving the present owners of each tract, lot, or parcel so set forth, and giving a complete and accurate description of the same as per the deeds therefor; and providing said Benton county should pay said Markley & Dunstan therefor, upon the completion of said work, $700, and 1 per centum of the assessed valuation of all real estate so listed, which is not on the tax roll for 1889 for said county, now in the sheriff's hands, said assessed values to be the values upon which taxes are levied for the year 1890, after equalization and all indebtedness deducted. That after this work was completed, and on the 4th day of December, 1890, the said county did, without authority of law, make and enter an order ordering and adjudging that the said Markley & Dunstan be allowed and paid the sum of $7,219.87 for pretended services claimed to have been rendered by said Markley & Dunstan to said county under said pretended contract of July, 1890. That on or about the ______ day of December, 1890, the county clerk, under said order of the said county court, issued to said Markley & Dunstan county orders for said $7,219.87. That on or about the ______ day of December, 1890, said county orders were presented to said county treasurer, and by him indorsed, "not paid for want of funds." That said pretended contract and order of said county court of July 3, 1890, and also the order of December 4, 1890, of said court, is illegal and void for the following reasons: (1) Said county court had no authority whatever under the statute to make said pretended contract. (2) It was an attempt to provide for the making of an assessment roll in a different way from that provided by the statute, and at an exorbitant cost to the county. (3) That when the said pretended contract and orders were made the county was indebted in the sum of $40,000, created by said county. (4) That by said pretended contract and said orders said county created an additional indebtedness and liability of over $7,000 against said Benton county, in violation of section 10, art. 11, of the constitution of the state of Oregon; that said defendants Markley & Dunstan are threatening to collect said orders; and that said defendant said treasurer of Benton county is threatening to pay said county orders, and will pay the same, out of the county treasury of Benton county, unless restrained by order of this court.

J.R. Bryson and W.S. Hufford, for appellants.

John Burnett and John Kelsay, for respondent.

Bean, J., ( after stating the facts.)

The contention for plaintiff is that the action of the county court in making the contract with Markley & Dunstan as alleged, and in issuing the warrants in their favor, is void, because- First, the county court had no authority, under the law, to make such a contract; and, second, it imposed a debt or liability upon the county in excess of the constitutional limit.

In support of the first position it is argued that, since it is made the duty by law of the assessor of the county to make out on an assessmentroll a list of all the taxable property in his county, the county court has no power or authority to employ any other person to prepare of assist in the preparation of such a list. But it seems to us that, as the county court is expressly charged with "the general care and management of the county property, funds, and business." (Code, § 896,) it may take such measures to secure a full, complete, and accurate list of all the property within the county, liable to assessment and taxation, is placed upon the assessment roll, so that the burden of government may fall in like proportion upon all; and it is matter of common knowledge that under out present system of listing and assessing property it is practically impossible for the accessor to list and assess all the property in his county without some such aid as was to be provided by the contract in question here. There was no attempt by the county court by this contract to usurp or interfere with the duties of the assessor, but, on the other hand, the object was to provide a present ownership list, to assist him in the discharge of the duties of his office, and enable him to list and assess a large amount of real estate which had theretofore escaped taxation, amounting, as the record discloses, in value to over $650,000. We think, therefore, the contract in question was such a one as the county had power and authority to make.

By section 10, art. 11, of the constitution, it is provided that "no county shall create any debts or liabilities which shall singley or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion; but the debts of any county, at the time this constitution takes effect, shall be disregarded in estimating the sum to which county is limited." This provision of the constitution has been before this court for construction in two cases. In Grant Co. v. Lake Co., 17 Or. 453, 21 P. 447, it was held that it did not apply to debts and liabilities imposed upon the county by law, such as the salaries of the officers, the expenses of holding courts, and such other expenses as the law charges upon a county, and which it is powerless to prevent, but that it "only applies to debts and liabilities, which a county in its corporate capacity, and as an artificial person, voluntarily creates;" and this construction was again recognized in Wormington v. Pierce, 22 Or. 606, 30 P. 450. This provision of the constitution was designed to prevent a county from voluntarily creating debts or liabilities which, singly or in the aggregrate, exceed the sum of $5,000, but has not application to debts or liabilities thrust upon a county by operation of law, and which it can in no way prevent; nor does it apply to debts or liabilites incurred in the suppression of an insurrection or to repel an invasion, nor shall the debts of a county at the time the constitution took effect be included in estimating the amount of its liabilities under this provision of the constitution. Hence, before it can be said that a county has exceeded the constitutional limit of indebtedness, it must appear that the debts have been voluntarily created by the county in its corporate capacity since the constitution took effect, and such debts were not created for the purpose of suppressing an insurrection or repelling and invasion, and these facts are not alleged in the complaint in this case. The allegation in that "the county was indebted in the sum of forty thousand dollars, created by the county," but it does not appear whether such indebtedness was voluntarily created, or thrust upon the county by operation of law, or whether it was incurred in the suppression of an insurrection or to repel an invasion, or whether it was an indebtedness of the county at the time the constitution took effect; and, in the absence of such allegations, the complaint does not state a case within the provisions of the constitution. The decree must therefore be reversed, the demurrer sustained, and cause remanded for further proceedings not inconsistent with this opinion.

W.W. Cotton and Gilbert & Snow, for appellant.

A.S. Bennett, for respondent.

LORD J.

This is an action to recover damages for personal injuries, alleged to have been sustained by the plaintiff while in the employ of the defendant. The defense was that the injury was caused by the negligence of a co-servant, and contributory negligence. While there are some minor questions to which we shall subsequently advert, the two controlling questions presented by this record are--First, that the complaint fails to state a cause of action; and, second, that the evidence fails to disclose any negligence for which the defendant is responsible. Both of these objections were taken by instructions, and the latter also by motion for a nonsuit which was overruled. The complaint shows that the plaintiff was a car-repairer, and that the accident occurred at the car and repair shops, by negligently causing and permitting a locomotive to run against a car which was standing on one of the switches connected with the yard, while the plaintiff was standing upon such car, and assisting to unload it. The locomotive was one that was used upon the switches of the yard for moving cars to be repaired, and for such other purposes as it was needed for. The complaint then proceeds to allege "that while the plaintiff was working upon or about said car, as hereinbefore alleged, the defendant failed to provide, preserve, and secure a safe place for him to work, but negligently and carelessly caused and...