Coos Bay Times Pub. Co. v. Coos County

• Decision Date: 27 October 1916
• Citation: 160 P. 532,81 Or. 626
• Parties: COOS BAY TIMES PUB. CO. v. COOS COUNTY.
• Court: Oregon Supreme Court

160 P. 532

81 Or. 626

COOS BAY TIMES PUB. CO. v. COOS COUNTY.

Supreme Court of Oregon

October 27, 1916

In Banc.

Appeal from Circuit Court, Coos County; G. F. Skipworth, Judge.

Action by the Coos Bay Times Publishing Company against the County of Coos. Judgment for the defendant, and plaintiff appeals. Affirmed.

The plaintiff brings this action to recover compensation for printing the delinquent tax list for Coos county. From a judgment on a verdict in favor of defendant, plaintiff appeals.

Peck & Peck, of Marshfield, for appellant. L. A Liljeqvist, of Marshfield, for respondent.

BEAN J.

As developed by the record the case is as follows: On February 15, 1915, in accordance with the mandate of section 2902, L O. L., the county court of Coos county selected the Coos Bay Times, published by plaintiff, as one of the official newspapers of the county. On the same date, as shown by plaintiff's Exhibit D, the county court entered a separate order fixing the price to be paid by the county for the publication of delinquent tax notices at three cents per line for each insertion. On and between April 5 and May 3 1915, at the instance of the county, plaintiff published the delinquent tax list and notice of delinquency in five issues of its paper. This was done upon a copy being furnished by the sheriff. The plaintiff claims that a contract was made with the tax collector to the effect that the defendant would pay five cents per line for each publication thereof. Plaintiff duly presented its claim for such services to the county court, aggregating, at the five-cent rate $1,035. The county court allowed $592.35, the price fixed by it, rejected $440.65 of the amount claimed, and issued a warrant for the sum allowed, which was not accepted by the publishing company, and this action was instituted. Plaintiff alleges a contract for the printing at the rate of five cents per line for each issue of the newspaper. Defendant denies the contract as alleged, and insists that under the statute the county court is the proper tribunal to fix such compensation. Plaintiff also claims that the amount charged by it was the reasonable value of the services. The trial court rejected this latter claim and all evidence in support thereof and also all evidence tending to prove a contract fixing the rate made by the tax collector on behalf of the defendant county.

It is contended by counsel for defendant that the questions involved herein cannot be settled in an ordinary action at law, and that plaintiff's remedy, if any, is by a writ of review. We see no merit in this contention. There is presented in this case an important question of law. There was also a controverted question of fact as to what was the contract between the parties. Plaintiff also sought to establish the reasonable value of the services performed. Both questions of law and fact can appropriately be tried in this action at law without resorting to a writ of review. Metschan v. Grant County, 36 Or. 117, 120, 58 P. 80; Wallowa County v. Oakes, 46 Or. 33, 35, 78 P. 892; Mackenzie v. Douglas County, 159 P. 625. Upon a writ of review the court will not examine a disputed question of fact. Oregon Coal Co. v. Coos County, 30 Or. 308, 47 P. 851; Curran v. State, 53 Or. 154, 99 P. 420. In such a proceeding the court will consider only such facts as are disclosed by the record presented by the return. Raper v. Dunn, 53 Or. 203, 205, 99 P. 889. In such case evidence outside of the record will not be considered. Gue v. City of Eugene, 53 Or. 282, 288, 100 P. 254; Gay v. City of Eugene, 53 Or. 289, 294, 100 P. 306, 18 Ann. Cas. 188. "When the facts are all admitted," says Mr. Justice Strahan in Vincent v. Umatilla Co., 14 Or. 375, 12 P. 732, "the sole question at issue is one of law, and the writ may furnish a cheap and expeditious remedy."

The question herein presented for consideration involves the construction of chapter 301, General Laws of Oregon, 1913 (see page 576), as to who is authorized to enter into a contract on behalf of a county for the printing of the delinquent tax list. That statute, in so far as necessary to here note, requires that four months after the date when taxes charged against real property are delinquent, the tax collector shall cause to be published once each week for four successive weeks in the newspaper or newspapers selected by the county court to publish court proceedings under the provisions of section 2902, L. O. L., a notice of delinquent taxes on real property and statement that six months after such taxes are delinquent a tax certificate of delinquency will issue. Such notice shall be published for a price not exceeding the price prescribed by section 2903, L. O. L. The act further provides that in counties of 100,000 or more inhabitants the county court shall cause such delinquent tax to be published in daily newspapers having a specified circulation, and definitely fixes the compensation for such publication in the latter class of counties which does not include the defendant county. Coos county is in the class containing over 10,000 population.

We turn now to sections 2902 and 2903, L. O. L., to which for brevity's sake reference is made in the act of 1913. The two laws, so far as they relate to the same subject, must be construed in pari...