Gosso v. Riddell

• Decision Date: 15 November 1927
• Citation: 261 P. 77,123 Or. 57
• Parties: GOSSO v. RIDDELL.
• Court: Oregon Supreme Court

261 P. 77

123 Or. 57

GOSSO v. RIDDELL.

Supreme Court of Oregon

November 15, 1927

Department 1.

Appeal from Circuit Court, Polk County; W. M. Ramsey, Judge.

Suit by Vern E. Gosso against William Riddell, Jr. From a decree for plaintiff, defendant appeals. Affirmed.

J. N. Helgerson, of Portland, for appellant.

G. O Holman, of Winton, Cal., for respondent.

McBRIDE J.

This is a suit instituted by the plaintiff as a taxpayer of Polk county, for himself and others similarly situated, to recover for the county of Polk certain sums of money alleged to have been illegally drawn from the treasury of Polk county by the defendant while acting as county commissioner of Polk county. During that period of time, defendant, Riddell, drew various warrants based upon his voucher, for per diem the sum of $1,130, and, as mileage, the further sum of $786. There is no dispute that this sum was paid to the several defendants by warrants drawn upon the treasurer by the county court, and ordered by them upon the audit of claims presented by the defendant and his associates to the county court. It was agreed and stipulated that, during the times mentioned the records of the county commissioners' court for Polk county, Or., show that the court was in session for the transaction of business for the period of 91 days and no more; and this proceeding is instituted by the taxpayer, on behalf of himself and others, after petition to the county court to compel the restitution of the moneys so disbursed and the refusal of the county court so to do. Plaintiff concedes that the defendant Riddell was to receive as compensation the sum of $455 at the rate of $5 per day for the time employed as a member of the county court, while said court was in session, to wit, 91 days.

It is contended by the plaintiff, that the defendant Riddell should be required to pay the county of Polk, the difference between the sum of $1,916 received by him during the said period of time, less the amount of $455, being $5 per day for each day the court was in session. There was a like action against the other commissioner, varying only in the amounts alleged to have been received, and the cases were virtually tried together.

The circuit court rendered the following opinion upon a demurrer to this case and the one accompanying it, which, so far as it discusses the subject, meets with the approval of this court, and, while it was not intended by the trial judge who rendered the opinion to be published, it is so apt that we adopt it here:

"These two cases appear to be alike in form, and the complaints in both cases are similar, and the points made by the demurrers are the same in each case.

"There are two separate causes of suit in each case stated separately, and the defendant in each case has demurred to each cause of suit.

"One of the first points made by the demurrers is that the plaintiff has no legal capacity to maintain this suit. The plaintiff is a taxpayer of the county, and sues for himself and for all other taxpayers, and, if a decree is rendered for the plaintiff, it will be for the payment of the money to Polk county for the benefit of all of the taxpayers of the county.

"The county could maintain an action for the recovery of the money alleged to have been wrongfully paid out by the county; but the complaint alleges that the plaintiff asked the county court to bring an action for the recovery of this money, and that the court refused to bring such actions.

"In my judgment, the following extract from page 965 of R. C. L. states the proper rule governing these cases:

" 'If a county has a plain cause of action for an injury done to it, which should be enforced for the protection of its citizens or taxpayers, and its governing board refuses to assert such action, in some jurisdictions any citizen, by reason of his indirect interest, may sue, in behalf of himself and all others similarly situated, the person against whom the cause of action exists, and thereby enforce the rights of the county.'

"A county is a quasi public corporation, and the right of taxpayers to bring a suit against persons who have illegally obtained funds from the county is analagous to the right of stockholders in private corporations to sue for injuries to a private corporation. If some one obtains funds wrongfully from a private corporation, and the officers of the corporation refuse to sue to recover it, a stockholder may bring a suit for himself and other stockholders to recover it for the corporation. And the rule seems to be that, when funds have been wrongfully disbursed by a county, and the county authorities, on being requested by a taxpayer to bring an action to recover this money, refuse to bring such action, one or more taxpayers of the county may bring suit for himself and all other taxpayers to recover the money for the county. This was expressly held in the case of McKenna v. McHaley, 62 Or. 1, 123 P. 1069, and it was held to the same effect in Carman et al. v. Woodruff et al., 10 Or. 133. In my judgment, the plaintiff has capacity to sue.

"One of the causes of suit is for the recovery of several hundred dollars from each of the defendants for mileage alleged to have been unlawfully paid by the county to each of the defendants. Each of the defendants was, during the time covered by the complaint, a county commissioner of Polk county, and, during the time that he was commissioner, it is alleged that he claimed and was allowed by the county court considerable sums for mileage for distances traveled by him in doing the county business.

"The question raised in relation to this mileage is whether or not county commissioners are entitled to receive, in addition to their $5 per day, mileage for the traveling that they do in transacting the county business.

"Section 3621 of Olson's Laws, which was in force during the time covered by the complaints, provides that the county officers of Polk county shall receive 'as compensation for their services' the sums in said section stated, and this section provides that county commissioners shall receive '$5 per day for each day employed in the transaction of county business.' They are to receive $5 per day for every day in which they are employed in transacting the business of the county and this section provides that they shall receive this sum 'as compensation for their services'; and it seems to me that this provision means that $5 per day shall be full compensation for all of their services, and that they shall receive no other remuneration.

"If one were to hire a person to drive an automobile for him, and this person should agree that $5 per day should be a compensation for his services, the employer would be not a little surprised, if his employee

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