Gibson v. Kay

• Decision Date: 13 January 1914
• Citation: 68 Or. 589,137 P. 864
• Parties: GIBSON v. KAY, STATE TREASURER.
• Court: Oregon Supreme Court

137 P. 864

68 Or. 589

GIBSON v. KAY, STATE TREASURER.

Supreme Court of Oregon

January 13, 1914

In Banc. Original proceeding by V. L. Gibson for mandamus to Thomas Kay, State Treasurer. Writ dismissed.

Alfred A. Hampson, of Portland (R. A. Watson, of Salem on the brief), for petitioner. A. M. Crawford, Atty. Gen ( James W. Crawford and J. A. Benjamin, both of Salem, on the brief), for defendant.

BURNETT J.

Invoking the original jurisdiction of this court in such cases, the petitioner sued out a writ of mandamus against the defendant to compel him to pay a warrant issued by the Secretary of State for services alleged to have been performed by Claude McColloch, under appointment by the corporation commissioner and afterwards assigned to the plaintiff. After reciting the official character of the corporation commissioner and of the defendant, as state treasurer, the writ proceeds with a prolix statement of the duties of the corporation commissioner as defined by chapter 341 of the General Laws of Oregon for 1913. These consist either of excerpts from that statute or legal conclusions to be drawn therefrom. All of these are superfluous and unnecessary, for, without pleading them, the court takes judicial notice of the laws enacted by the legislative branch of the government. In addition thereto, the writ declares that: "The performance and proper discharge of said duties above particularly described during all the times herein mentioned necessitated a vast amount of work and labor, and made it actually necessary for said corporation commissioner to have the assistance in the performance and discharge thereof of some one experienced in current business methods, and particularly in corporate and partnership methods of organization and transaction of business, and skilled and read in the rules and precedents of the common law, and statutes and decisions of the courts of this and other states and of the United States; that during all the times herein mentioned one Claude McColloch possessed the experience, skill, knowledge, and all the qualifications particularly above described in paragraph 7, and on the 10th day of November, 1913, said corporation commissioner employed and appointed said Claude McColloch to render him assistance in the performance and discharge of said duties hereinabove particularly described, and promised and agreed to pay him therefor at the sum and rate of $125 per month, or proportionate parts thereof, payments to be made out of the corporation fund, as the same is created and described in and by said chapter 341, General Laws for 1913; that said Claude McColloch accepted said employment and appointment, and on said day duly qualified therefor as provided by said chapter 341, General Laws for 1913, and inclusive of said day, and thereafter during said month of November, 1913, rendered such assistance to said corporation commissioner pursuant to said terms of employment; and there became due and owing to said Claude McColloch therefor out of said fund the sum of $87.50." The remainder of the document consists of a history of making a verified claim for the services, and an audit thereof by the Secretary of State, and his drawing a warrant, the payment of which was refused by the defendant, the state treasurer. By denials and allegations the return contends that the services mentioned therein were those incumbent upon the Attorney General and district attorneys of the state, for whom the corporation commissioner could not substitute an appointee of his own; further, that the claimant at all the times mentioned was a state senator representing Baker county in the Legislature, whose term would not expire until November, 1914, under which condition he is forbidden by the Constitution to hold at the same time the other lucrative office of assistant to the corporation commissioner; and, finally, that a law creating the corporation commissioner, and authorizing him to make the appointment under which McColloch was acting, was passed by the legislative assembly of which the latter was a member, on account of which he was prohibited from being appointed thereto, the position having been created during his term as such senator. The official character of the appointee as senator, and his participation as a legislator in the enactment of the law, were admitted by the reply.

Under section 17 of article 7 of the state Constitution, as it first existed, it was provided that "there shall be elected by districts comprised of one or more counties, a sufficient number of prosecuting attorneys, who shall be the law officers of the state, and of the counties within their respective districts, and shall perform such duties pertaining to the administration of law and general police as the legislative assembly may direct."

Section 2 of the amended article 7 directs that "the courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law."

No law changing the duties and authority of district attorneys having been enacted, they yet remain as defined by the original Constitution. The office of Attorney General was created and his duties prescribed by sections 2666 to 2672 L. O. L. His general functions are defined in section 2670, as follows: "The Attorney General, at the request of the Governor, secretary of state, treasurer, superintendent of public instruction, or any of the said parties, shall, upon the breach thereof, prosecute any official bond or contract in which the state is interested. He shall, when requested to do so, by either of said officers, give his opinion in writing upon any question submitted to him in which the state of Oregon may have an interest; and he shall, when requested, give legal advice to any of the above officers, or to the superintendent of the state insane asylum or superintendent of the state penitentiary in all matters relating to their official business, and shall, when requested, give his written opinion upon any question of law to either house of the Legislature. He shall, when requested so to do, prepare contracts, bonds, forms, and other writings which may be requested, for the use of the state or any department or officer thereof. He shall appear, prosecute, or defend for the state all suits, causes, or proceedings in the Supreme Court in which the state is a party or interested; and he shall when requested by any state board or board of trustees, or by the Governor or the Secretary of State or the state treasurer, appear, prosecute, or defend any action, suit matter, cause, or...