Flagg v. Columbia County

• Decision Date: 10 March 1908
• Parties: FLAGG v. COLUMBIA COUNTY et al.
• Court: Oregon Supreme Court

94 P. 184

51 Or. 172

FLAGG v. COLUMBIA COUNTY et al.

Supreme Court of Oregon

March 10, 1908

Appeal from Circuit Court, Columbia County; Thomas A. McBride Judge.

Writ of review by E.H. Flagg against Columbia county and others to review proceedings of the county court of Columbia county. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff presented to the county court of Columbia county a claim amounting to $193.50 for publishing in his paper from March 1, 1905, to the end of that year, the proceedings of that court. The claim was itemized and made a total of 387 inches of printed matter, for which he charged at the rate of 50 cents per inch, making the stated amount. The court disallowed $192.50 thereof and allowed $1, whereupon he instituted this suit to review the action of the county court. The circuit court set aside the order of the county court, and gave plaintiff a judgment for $193.50, from which judgment the county appeals.

W.H Powell, for appellant.

J.W Day, for respondent.

SLATER C. (after stating the facts as above).

The statute requires that the county court shall at the January session of each year select one newspaper published in the county, having the largest circulation where published, in which the proceedings of said court, as entered of record shall be published at the expense of the county (section 2636, B. & C. Comp.); that compensation for the publication of such list of claims and proceedings shall be fixed by the county court, provided that, for each square of 10 lines of brevier type (newspaper measure) or its equivalent, the cost shall in no case exceed 50 cents per square (section 2637); and, in case there is a contest for the privilege of printing such proceedings, the next succeeding section of the statute specifically provides that the court shall determine from verified lists to be filed with the court which of the newspapers of the respective applicants had the larger circulation. On January 4, 1905, plaintiff made written application to the court that his paper, the Oregon Mist, be designated the official paper of the county for that year, in which he stated generally his belief that his paper had the largest bona fide yearly circulation within that county. On the same day one R.H. Mitchell, publisher of another paper--the Columbia Register--made a like application, but offered to do the work for a compensation of $1. On the 6th, without having taken any proof or made any inquiry into the comparative circulation of the two papers, the court made an order designating and appointing plaintiff's paper as the official paper of the county for that year, and fixed, in the order of appointment, the compensation therefor at the sum of $1 for the entire year, to which plaintiff had orally agreed with the court as a condition of receiving the appointment. On the 11th, the court, having its attention directed to the requirements of the statute relative to the manner of determining a contest in such matters, on Mitchell's motion, rescinded its order of the 6th, and required the two applicants to file with the court certified statements of the number of their subscribers, in accordance with the terms of the statute, on or before March 1st, which they did. But at that time plaintiff insisted that the order of the court rescinding its former order was not legal or binding and sought to have the former order reinstated, offering, in writing, to carry out the terms thereof. This the court denied, and then determined from the proof submitted that plaintiff's paper, the Oregon Mist, had the greater number of bona fide yearly subscribers within the county, and was entitled to the appointment, and it was so ordered; but the court did not then fix in its order the amount of plaintiff's compensation. Plaintiff performed the services required of him during the remainder of that year, and on January 3, 1906, he presented to the court his itemized claim showing that he had published during that time 387 inches of court proceedings, for which he charged 50 cents per inch or a total of $193.50, that being the maximum rate allowed by the statute. The only evidence of the action of the court thereon is an entry in the warrant register, setting forth, in column form under appropriate headings, the date of filing, name of claimant, amount and nature of claim, amount rejected, and amount allowed, from which nothing more appears than that $192.50 thereof was rejected, and $1 allowed. Plaintiff, being dissatisfied with the action of the court, sued out a writ to review its action. The circuit court made findings, and, among others, that the publication by plaintiff of the proceedings of the county during the year 1905, subsequent to March 1st, amounted to 387 squares of 10 lines each of brevier type and was of the reasonable value of $193.50 to the county; that the county court had erroneously refused to audit the claim or fix any compensation or to consider the amount of the services so rendered by plaintiff, except that on January 10, 1906, without due or any consideration, and, without any intention of fixing just or any compensation for such services, made the entry above noted. From these determined facts, the court concluded as a matter of law that the county court had exercised its jurisdiction erroneously, and that plaintiff was justly entitled to the full amount of his claim. A judgment therefor was accordingly entered in his favor.

It is first contended on behalf of the county that a writ does not lie to review the order of a county court where it exercises a discretion in fixing or allowing reasonable fees when not fixed by law, and that such remedy is not adapted to litigate a disputed claim against the county after presentation of his claim and a refusal of payment. In support thereof, there is cited Cook v. Multnomah County, 8 Or. 170; Vincent v. Umatilla County, 14 Or. 375, 12 P. 732; Oregon Coal Co. v. Coos County, 30 Or. 308, 47 P. 851. In Cook v. Multnomah County, supra, this court declined to disturb an order of the county court passing upon a coroner's bill and fixing the expenses of an inquest, because, there being no statute expressly providing what sum should be allowed,...