Grant County v. Lake County

• Decision Date: 15 April 1889
• Parties: GRANT COUNTY v. LAKE COUNTY.
• Court: Oregon Supreme Court

21 P. 447

17 Or. 453

GRANT COUNTY v. LAKE COUNTY.

Supreme Court of Oregon

April 15, 1889

Appeal from circuit court, Klamath county.

At the special session of the legislative assembly of the state held in November, 1885, it was enacted that a certain portion of territory should be taken from Grant county, and annexed to Lake county. The act was approved November 21, 1885, and took effect at that time. Section 2 of the act provides as follows: "Sec. 2. The treasurer of Lake county shall pay to the treasurer of Grant county such a portion of the indebtedness of Grant county as the taxable property of the territory described in section 1 bears to the whole amount of taxable property of said Grant county, not to exceed five thousand dollars, as said taxable property appears by the assessors' roll of the year 1884." Subsequently, and on the 3d day of August, 1887, Grant county commenced an action against Lake county to recover the amount due to the former, under and by virtue of said section 2 of said act. It was alleged in the amended complaint filed in said action that the plaintiff and defendant therein were duly organized counties in the state of Oregon; that the said act was passed and contained the terms herein set out; that at the time it went into effect--November 21, 1885--the indebtedness of Grant county was the sum of $44,501.29; that on said date the taxable property of the territory so taken from Grant county was the sum of $302,152; that at said date the whole amount of taxable property of Grant county, as said taxable property appeared by the assessors' roll of the year 1884, was $3,125,352; that on said date there was due to plaintiff from the defendant the sum of $4,298.82, for which sum the plaintiff demanded judgment. To which complaint the defendant in said action filed an answer denying any knowledge or information of any indebtedness of Grant county as alleged in the complaint, or that the taxable property of the territory taken from Grant county was, on said date or at any other date, the sum of $302,152, or any other sum; and denied that there was anything due from the defendant to plaintiff, as alleged in the complaint. These were the main issues in the pleadings. A demand of the amount due from the defendant to the plaintiff was alleged in the complaint, and denied in the answer. Afterwards, and at the June term, 1888, of the said circuit court, the said action coming on for trial, and a jury trial thereof having been duly waived, the same was tried before the court without a jury. Said court, upon said trial, found the following facts: First. On the 21st day of November, 1885, Grant county was indebted in the sum of $44,501.29. Second. The taxable property of Grant county, as shown by the assessors' return for the year 1884 amounted to the sum of $3,125,352. Third. The taxable property of that part of Grant county which was annexed to Lake county amounted to the sum of $302,152. Fourth. The taxable property of that part of Grant county which was annexed to Lake county amounted to 9 66-100 per cent. of the whole taxable property of Grant county. And upon said facts said court found the following conclusions of law: All that part of the indebtedness of Grant county in excess of $5,000 is illegal and void, so far as this defendant is concerned. The plaintiff is therefore entitled to recover of the defendant 9 66-100 per cent. of $5,000, with interest thereon at 8 per cent. per annum from the 21st day of November, 1885. Judgment having been entered in accordance with the said findings of law, both parties took an appeal therefrom to this court, which is the appeal before referred to.

(Syllabus by the Court.)

An action at law cannot be maintained against a county unless authorized by statute.

. Section 2239, Code Misc. Laws Or., which provides that each county shall continue to be a body politic and corporate for certain purposes, authorizes and action to be maintained by or against a county for any cause affecting its rights or duties as such corporate body.

For the purposes for which a county is made a body corporate and politic it is a person, and is capable of suing and being sued in regard to matters pertaining to those purposes, the same as an individual.

The certain of a body corporate for any purpose impliedly confers upon it the incidental powers belonging to a corporation which includes the power to sue and be sued, so far as necessary to maintain its corporate rights, and enforce its corporate duties.

Where the legislative assembly of the state passed an act which provided that certain territory should be taken from the county of G., and annexed to the county of L., and that the treasurer of the county of L. should pay to the treasurer of the county of G. such a portion of the indebtedness of the latter county as the taxable property of the territory taken bore to the whole amount of taxable property of said county of G., not to exceed $5,000, as said taxable property appeared by the assessors' roll of the year 1884 held, notwithstanding the provisions contained in section 350 of the Code of Civil Procedure of the state, to the effect that an action could only be maintained against a county upon a contract made by such county in its corporate character, that an action was maintainable in favor of the county of G. against the county of L., to recover from the latter county such proportion of the said indebtedness; that the legislative assembly had power in such a case to impose an obligation upon a county, and the discharge of it became a corporate duty, which could be enforced by an action at law and that the right to such an action was not affected by said section 350 of the Code of Civil Procedure, which, in terms, limits actions against counties to strict matters of contract; that it was known as a part of the history of legislation upon the subject that said section 350 was only intended to amend section 347 of the former Code of the state, so as to avoid the consequences resulting from a construction the court had given said latter section, which was to the effect that it permitted actions to be maintained against counties for pretended injuries received by persons, by reason of alleged defects in bridges upon the public highways.

Held, further, that the fact that the indebtedness of the county of G., at the time of the passage of the said act, exceeded the sum of $5,000, did not support a finding of a conclusion of law that the part of the indebtedness in excess of that sum was illegal and void; that the clause in the constitution of the state which provides "that no county shall create any debts of liabilities which shall, singly or in the aggregate, exceed the sum of five thousand dollars," etc., does not imply that all debts and liabilities against a county over and above said sum are necessarily obnoxious to said provision; that the provision only applies to debts and liabilities beyond said sum which a county, in its corporate character, and as an artificial person, voluntarily creates.

Held, also, that interest should not be allowed upon a claim against a county until a warrant therefor has been presented to the treasurer thereof, and an indorsement made thereon, "Not paid for want of funds," and the date of such presentment, over the treasurer's signature.

THAYER, C.J., (after stating the facts as above.)

Why it should have been necessary to resort to litigation regarding the matters involved herein, is beyond my power to conjecture. The act in question is very plain and simple. The citizens of Lake county evidently desired that a certain part of the territory of Grant county be detached therefrom, and attached to their county; and the legislature enacted that it be done; but, inasmuch as Grant county was indebted in a large sum, and the effect would be to curtail its source of revenue, a provision was inserted in the act that the treasurer of Lake county should pay to the treasurer of Grant county such a portion of the indebtedness as the taxable property of the territory taken therefrom bore to the whole amount of its taxable property, not to exceed $5,000, and the assessors' roll for Grant county for the year 1884 was made the basis from which said amount of the taxable property, and such proportion thereof, were to be ascertained. The circuit court found as a fact that Grant county was indebted in the sum of $44,501.29; that its taxable property, as shown by the assessors' roll for said year 1884, amounted to the sum of $3,125,352; and that the taxable property of the territory taken therefrom and annexed to Lake county was 9 66-100 per cent. thereof, and there seems to be no disagreement between the parties as to the correctness of this finding. All that was necessary therefore, to a proper adjustment of the matter, was for the treasurer of Lake county to pay the treasurer of Grant county that proportion of the said amount of indebtedness. Such seems to have been the obvious intention of the legislature, and Lake county should with reasonable promptness have discharged the obligation thus imposed upon it. "The legislature," as said by SAWYER, J., in People v. Alameda Co., 26 Cal. 648, "may divide counties, and create new ones, or...