Johnson v. City of Astoria

• Decision Date: 12 July 1961
• Citation: 227 Or. 585,363 P.2d 571
• Parties: Carl W. JOHNSON, Respondent. v. CITY OF ASTORIA, a municipal corporation, Harry M. Steinbock, Frank M. Thorsness, Arnold Swanson, George Abrahamsen, Eric Hauke and Dale Curry, Appellants.
• Court: Oregon Supreme Court

Page 571

363 P.2d 571

227 Or. 585

Carl W. JOHNSON, Respondent. v. CITY OF ASTORIA, a municipal corporation, Harry M Steinbock, Frank M. Thorsness, Arnold Swanson George Abrahamsen, Eric Hauke and Dale Curry, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 7, 1961.

Decided July 12, 1961.

James L. Hope, City Atty., Astoria, argued the cause for appellants. With him on the brief was Robert C. Anderson, Deputy City Atty., Astoria.

Wendell Wyatt and Lawrence M. Dean, Astoria, argued the cause for respondent. With them on the brief were Sam H. Wilderman, Portland, and Norblad, Wyatt, Macdonald & Dean, Astoria.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN, and LUSK, JJ.

LUSK, Justice.

The defendants, the city of Astoria and six individuals, have appealed from an order allowing a peremptory writ of mandamus which commanded the defendants to place on the ballot a proposed amendment to the city charter.

On October 6, 1960, the plaintiff filed a petition for an alternative writ of mandamus. The petition alleged that the petitioner is a citizen and employee of the city of Astoria, Clatsop county, state of Oregon; that he aided in the circulation of an initiative petition for the charter amendment in question; that the initiative petition was prepared and duly signed by qualified signers in accordance with the statutes of the state of Oregon and was presented to the defendants for placing on the ballot to be voted upon in the election to be held on the eighth day of November, 1960, but that defendants have wrongfully failed and refused to place said charter amendment measure on the ballot. The prayer was for the issuance of an alternative writ of mandamus directed to the defendants and requiring them to place said proposed charter amendment on the ballot by the seventh day of October, 1960, or appear and show cause why they have failed so to do. On October seventh the court entered an order allowing an alternative writ in accordance with the prayer of the petition and on the same day a hearing was had at which all the parties appeared by counsel and at the conclusion of which the court signed a peremptory writ.

Also on that day the defendants served on the plaintiff a demurrer 'to the petition as filed by the plaintiff herein, and the alternative writ of mandamus issued herein, for the reason that neither the petition now [sic] said alternative writ of mandamus state facts showing that the plaintiff is entitled to the writ of mandamus as prayed.' Apparently, the demurrer was not actually filed with the clerk of the court until after the court had decided the case and no order upon the demurrer was ever entered. The record discloses, however, that the demurrer was called to the attention of the trial judge during the hearing.

On October eighteenth the defendants served the plaintiff with notice of appeal to this court from 'that certain judgment and peremptory writ of mandamus' entered on October 7, 1960. On December eighth the court entered an order allowing a peremptory writ of mandamus and directing that such writ issue out of and under the seal of the court and on the same day the writ was issued accordingly by the clerk of the court. On December 28, the parties having stipulated to dismiss the appeal from the order entered October seventh, this court entered an order of dismissal without prejudice. On December twenty-ninth notice of appeal from the judgment of December eighth was served upon the plaintiff.

It was explained on the argument that the reason for dismissing the first appeal and securing the entry of the order of December eighth allowing the peremptory writ, was that the court, in making its order of October seventh, had not followed the statute which prescribes that '[u]pon the filing of the petition and order of allowance, the writ shall be issued by the clerk in accordance therewith.', ORS 34.130, and that an appeal must be taken to the Supreme Court from the judgment of the circuit court 'directing a peremptory mandamus', rather than from the writ itself. ORS 34.240. Since all this was done at the same term of court, ORS 4.260, the entry of the new judgment and issuance of the writ by the clerk were permissible under Seufert v. Stadelman, 178 Or. 646, 650-651, 167 P.2d 936.

In the brief and on the argument the defendants challenged the order appealed from on the ground, among others, that the alternative writ, which serves the purposes of a complaint, is fatally defective because of the total failure of that writ to state any facts. ORS 34.170-34.190; State ex rel. Bethke v. Bain, 193 Or. 688, 694-695, 240 P.2d 958, and cases there cited. Counsel for the plaintiff concede the point, but argue that it was waived on the trial by what amounts to a stipulation of counsel for the defendants that the case might be heard and determined on the facts alleged in the petition.

We agree that counsel for defendants did stipulate with counsel for the plaintiff in open court that the facts were 'entirely as embodied in the petition' and that he introduced the petition in evidence and to that extent waived the right to insist upon the point that the alternative writ was defective because of its failure to state any facts. To all intents and purposes, the parties agreed that the petition might be treated as the complaint and the court could therefore properly consider and decide the case upon that basis. Cf. State ex rel. Bethke v. Bain, supra, 193 Or. at page 697, 240 P.2d at page 962.

The insuperable difficulty in the case, however, is that the petition for the writ, even though it be considered as a complaint, wholly fails to state a cause of action against any of the individual defendants. Presumably this is intended to be a proceeding against an officer or officers 'to compel the performance of an act which the law specially enjoins, as a duty resulting from an office * * *.' ORS 34.110. As we said in State ex rel. Rudd v. Ringold, 102 Or. 401, 406, 202 P. 734, 735:

'The writ of mandamus may properly compel an officer to perform such act as the law specifically enjoins, but the writ will not lie unless the duty sought to be enjoined is prescribed by the law as devolving upon such officer: (citing cases).'

The duty is of the essence of the cause of action and obviously facts must be pleaded which show its existence. But the petition here does not allege that the individual defendants or any of them are city officials or that any of them are...