Frankl v. Bailey

• Decision Date: 28 September 1897
• Parties: FRANKL v. BAILEY.
• Court: Oregon Supreme Court

50 P. 186

31 Or. 285

FRANKL v. BAILEY.

Supreme Court of Oregon

September 28, 1897

Appeal from circuit court, Lake county; W.C. Hale, Judge.

Mandamus by Adolph Frankl against Harry Bailey, county treasurer, to compel the payment of warrants. From judgment for defendant plaintiff appeals. Affirmed.

C.A. Cogswell, W.A. Wilshire, and E.D. Sperry, for appellant.

L.F Conn, for respondent.

WOLVERTON J.

This is a proceeding by mandamus against the treasurer of Lake county, Or., to compel him to pay three certain county warrants issued by the clerk upon the order of the county court. The alternative writ contains a separate count upon each warrant, identical in form, but involving claims for different amounts, the first of which is, in substance, as follows: That on July 7, 1896, the defendant was, ever since has been, and now is, the treasurer of Lake county; that on June 27, 1890, W.T. Boyd presented to the county court for said county, then sitting as a board of commissioners for the transaction of county business, a claim for services rendered the county, amounting to $1,150, and that there arose between said court and Boyd a dispute and controversy touching the amount justly due thereon; that, in order to settle the contention, and to prevent litigation, a compromise was effected, whereby it was agreed that the county court should audit and allow, and the said Boyd should accept and receive $800 in full settlement and satisfaction of the claim; that the said county court thereupon approved it, and ordered and directed that a warrant be drawn upon the county treasurer in favor of Boyd for the latter amount, which was done accordingly, and on June 30, 1890, the treasurer duly indorsed the same not paid for want of funds; "that on March 4, 1891, at a different and subsequent term of the said court than the one in which the said warrant was ordered to be issued, and after the same was issued and delivered to the said W.T. Boyd, the county court of Lake county, Or., without any notice to the said W.T. Boyd, or his assignee, of said warrant, made and entered an order upon the records of the court, and served a copy thereof upon the treasurer of said county, directing the said treasurer to decline and refuse payment of said warrant." The remaining allegations are touching plaintiff's ownership of the warrant, its due presentation to the treasurer for payment, of funds in his hands applicable thereto, and of his refusal to pay the same, and are not pertinent to the present inquiry. A demurrer was interposed, and sustained by the court below and a judgment entered against the plaintiff, dismissing the writ, and for the costs of the proceeding, from which judgment the plaintiff appeals.

The defendant insists that the plaintiff, by his allegation touching the order of the county court directing the defendant to refuse payment of the warrant, has shown that he is not entitled to the relief demanded, and that the order itself affords a legitimate excuse for his refusal to apply the funds of the county in payment of such warrant; and this constitutes the chief question presented at the hearing. It has been judicially determined in this state that a county court, when exercising the authority and powers pertaining to county commissioners in the transaction of county business, within the purview of section 902 Hill's Ann.Laws Or., is a court of inferior or limited jurisdiction, and that decisions given or rendered by it pertaining to such business are judicial in their nature and character, and can be reviewed only as in said section provided; but that, when acting as the fiscal agent of the county in the general care and management of the county property, funds, and business, under subdivision 9 of section 896, it does not act in the capacity of a court, in the proper sense, but precisely as would the agent of a private corporation in the management of its fiscal concerns. Crossen v. Wasco Co., 10 Or. 111. From the allegations of the alternative writ, it may be fairly inferred that the court, in effecting the alleged compromise, was acting in the capacity of fiscal agent of the county, and not in the transaction of county business, within the purview of section 902, and this is the view evidently taken by counsel for appellant. They say in their brief that, "in making the compromise, the county court acted as the fiscal agent of the county, and had the same authority to do so as would the agent of a private corporation." There is a direct...