First Nat. Bank of Idaho v. Malheur County

• Decision Date: 18 July 1896
• Citation: 45 P. 781,30 Or. 420
• Parties: FIRST NAT. BANK OF IDAHO v. MALHEUR COUNTY.
• Court: Oregon Supreme Court

45 P. 781

30 Or. 420

FIRST NAT. BANK OF IDAHO v. MALHEUR COUNTY.

Supreme Court of Oregon

July 18, 1896

Appeal from circuit court, Malheur county; Morton D. Clifford Judge.

Action by the First National Bank of Idaho against the county of Malheur. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action to recover an alleged balance claimed to be due on a chose in action assigned to plaintiff. The facts are that on July 6, 1894, the defendant entered into a contract with the Bullen Bridge Company, a corporation, by the terms of which the latter, in consideration of the payment of $2,000 and the agreement to pay $2,000 at the next term of the county court after the completion and acceptance thereof constructed a bridge for the defendant over the Malheur river near the town of Vale; that on December 5th of said year the company assigned its claim for the $2,000 deferred payment to the plaintiff, and requested the defendant to pay the same to its assignee when it became due; that on February 2, 1895 and before the bridge had been accepted, the material men and laborers who had furnished material for and performed labor in its construction claimed liens thereon, and filed notices of their respective claims in the office of the clerk of said county, amounting in the aggregate to $1,469.76; that on March 7th, the bridge having been accepted, the defendant paid to said laborers and material men the amount of their respective claims, took an assignment of their alleged liens and on May 8th paid to the plaintiff $530.24 as the balance due under the contract. Whereupon this action was brought to recover the amount so paid to the laborers and material men. The defendant, after denying the material allegations of the complaint, alleges, in substance, that, having an equitable interest in the bridge by reason of the payment of $2,000, it was compelled to and did pay the said claims for material and labor to prevent the threatened foreclosure of the liens so claimed therefor, and the sale of its interest in the bridge. It is also alleged that on January 24, 1895, the plaintiff, being cognizant that the laborers and material men had not been paid, and as the agent and claiming to be the assignee of the Bullen Bridge Company, requested the defendant to hold a sufficient amount of the balance due under the contract for the payment of and to satisfy said claims, until the Bullen Bridge Company should pay the same; that neither the Bullen Bridge Company nor the plaintiff has ever paid any part of the amount so due the lien claimants, and, after waiting a reasonable time therefor, the defendant was compelled to and did settle and discharge said liens, and paid to the plaintiff, prior to the commencement of this action, the balance due under the contract; and that by reason of the premises, and of the facts hereinbefore stated, the plaintiff is estopped from claiming any money as due under the contract, and from maintaining this action. A motion and demurrer filed by plaintiff having been overruled and denied, it filed a reply denying that said bridge was subject to any mechanics' liens, and putting in issue the other allegations of new matter contained in the answer; and upon the issue thus joined a trial was had, resulting in a verdict and judgment for the defendant, from which judgment the plaintiff appeals.

Geo. H. Stewart, for appellant.

MOORE J. (after stating the facts).

The plaintiff's counsel contends that the bridge was the property of Malheur county, and as such was not subject to mechanics' liens, and that the court erred in admitting the claims therefor in evidence.

1. If it be conceded that the county, at the time the notices of lien were filed, was the owner of the bridge, no lien could possibly attach thereto; for the mode of enforcing this statutory remedy is by sale upon execution (section 3677 Hill's Ann.Laws Or.), and the statute expressly provides that all county property shall be exempt from such judicial process (subdivision 6, § 282, Id.). The duty of maintaining highways devolves upon the state in its sovereign capacity, but is delegated in part to the several counties therein, which are authorized by law, as trustees for the public, to levy and collect taxes to be expended in the performance of the duty thrust upon them. A public bridge is a part of the highway, and, whether constructed by the state or any of its public corporations, is held in trust for a public use; and the statute, emphasizing a rule of public policy, wisely prohibits the sale of such property upon execution. The reason assigned for the existence of this rule, in the absence of a statute upon the subject, is that, if the property held by a municipal corporation in trust for the public were subject to sale upon execution, the title thereto might become vested in a private person, thereby depriving the public of its right to the use of such property, and public policy forbids that the public shall be deprived even temporarily of such use. Leonard v. City of Brooklyn, 71 N.Y. 498; Portland Lumbering & Manufacturing Co. v. School Dist. No. 1, 13 Or. 283, 10 P. 356. The rule is well settled that property which is exempt from sale under execution upon grounds of public policy is not within the operation of or subject to the mechanic's lien law unless the statute conferring this special remedy so expressly declares. Williams v. Controllers, 18 Pa.St. 275; National Foundry & Pipe Works v. Oconto Water Co., 52 F. 43; Whiting v. Story Co., 54 Iowa, 81, 6 N.W. 137; Ripley v. Gage Co. Com'rs, 3 Neb. 397. Judge Dillon in his work on Municipal Corporations (3d Ed., § 577), in stating this rule, says: "Property owned by a municipal corporation and used for public purposes cannot be sold by virtue of an execution issued on a judgment rendered against the corporation. As one of the results of this general...