Hansen v. Malheur County
| Decision Date | 31 January 1939 |
| Citation | 86 P.2d 964,160 Or. 579 |
| Parties | HANSEN <I>v.</I> MALHEUR COUNTY ET AL. |
| Court | Oregon Supreme Court |
See 14 Am. Jur. 226
15 C.J. Counties, § 327
Appeal from Circuit Court, Malheur County.
Suit by Soren Hansen, a resident and taxpayer of Malheur county, against said county and its county commissioners to enjoin the issuance of municipal bonds of the par value of $100,000 by said county and to declare invalid the election authorizing the same. From an order overruling a general demurrer to plaintiff's complaint and a decree granting the relief prayed for, defendants appeal.
AFFIRMED.
M.A. Biggs, of Ontario, and John W. Shuler, of Portland, for appellants.
Robert D. Lytle, of Vale (Lytle & Swan, of Vale, on the brief), for respondent.
1. KELLY, J.
First, it is only fair to the record to say that in sister jurisdictions, the authorities expressly hold that a resident taxpayer may invoke an injunction to prevent an unlawful bond issue. A list of many of these authorities appears in the notes to section 2757 of Vol. 6, (2d Ed.) McQuillin on Municipal Corporations. In this jurisdiction the procedure conforms to the doctrine of these authorities in that respect.
The issuance of the proposed bonds in suit is sought to be supported by the provisions of section 10 of article XI of the constitution of Oregon, and of chapter 20, title 44, Oregon Code 1930.
In so far as applicable to the facts herein, section 10 of article XI of the Oregon Constitution is as follows:
Section 44-2010, Oregon Code 1930, being originally section 10 of chapter 103, Oregon Laws 1913, and now being one of the sections of said chapter 20, title 44 of said Oregon Code 1930, chapter 217, Oregon Laws 1931, in so far as it is applicable to the record in this case provides:
The only petition provided for in the act (chapter 103, General Laws of Oregon 1913, p. 170 et seq.) having for its object the submission of such question at a general election is authorized by section 44-2009, Oregon Code 1930, chapter 83, Oregon Laws, 1931, pp. 119 and 120, which provides that when such a petition is presented in the county court, said court "shall take the same action respecting such petition as provided for in section 44-2004, Oregon Code 1930, except that instead of calling a special election as therein provided, it shall submit the question to the voters of the county at the next general election."
Said section 44-2004, Oregon Code 1930, among other things, provides that upon approving the petition of the required number of registered voters therefor, "the county court shall then make an order directing that a special election shall be called and held in that county for the purpose as specified in the petition at a time to be then fixed by the court, which shall not be less than twenty nor more than forty days after the date of making the order."
2, 3. The order of the county court appointed May 20, 1938, as the day upon which the question of the proposed bond issue should be submitted to the voters of Malheur county. That was the day upon which a primary nominating election was held. A primary nominating election is a general election: Taylor v. Multnomah County, 119 Or. 123, 248 P. 167. An election for issuance of road bonds is a special election although held on the same day by the same officers as a general election: Wilson v. Wasco County, 83 Or. 147, 163 P. 317; Norton v. Coos County, 113 Or. 618, 233 P. 864; Hill et al. v. Hartzell, 121 Or. 4, 252 P. 552.
Section 44-2006, Oregon Code 1930, which is section 6 of said chapter 103, Oregon Laws 1913, among other things, prescribes that:
"Whenever a special election shall be ordered as provided in this act the county court shall cause printed notices thereof, signed by the county clerk, to be posted in like manner as notices of a general election are now posted, which notices shall particularly specify the amount of bonds proposed to be issued, the length of time they shall run, and the maximum rate of interest they shall bear, the road or roads to be improved, and the amount to be expended on each."
By reference to an exhibit attached to plaintiff's complaint, it appears therefrom, in addition to specifying certain roads to be improved and the amount to be expended on each, the notices of election herein declared in effect that $36,800 of the proposed $100,000 to be received from the sale of said bonds should be expended as follows:
"Road building machinery, _________ $12,500.00
Supervision and engineering, ______ 3,000.00
Maintenance, ______________________ 3,500.00
To be turned over to county
court to be used on roads not
cared for in this budget, _________ 17,800.00."
It is alleged in the complaint that "said election is illegal and void for the reason that the county court did not comply with the law * * * in the notices thereof in specifying the roads to be improved and the amounts to be expended on each."
4. The notice in its recitals should observe the mandatory legal provisions, otherwise the election and the action authorized thereby will be void: Vol. 5, McQuillin on Municipal Corporations (2d Ed.) Sec. 2356.
The matter is thus summarized by Prof. Jones in his work on Bonds and Bond Securities:
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