Johnson v. Craddock
| Decision Date | 27 September 1961 |
| Citation | 365 P.2d 89,228 Or. 308 |
| Parties | Kenneth A. JOHNSON, Appellant, v. C. W. CRADDOCK, County Judge, P. Tiller and Jack Drinkwater, County Commissioners, composing the County Court of Harney County, Oregon, a municipal corporation, Respondents, and Henry Otley and Mary Otley, husband and wife, and Charles Otley, a single man, Intervenors-Respondents. |
| Court | Oregon Supreme Court |
W. F. Schroeder, Vale, argued the cause for appellant. On the briefs were W. F. Bardwell, Burns, and Lytle, Schroeder & Denning, Vale.
Michael S. Mogan, Burns, argued the cause for intervenors-respondents. On the brief were Irving C. Allen, Dist. Atty., Burns, and Waterman & Mogan, Burns.
Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.
This is an action for a writ of mandamus. It is brought by petitioner Johnson to compel the Harney County Court to sell certain tax-foreclosed property to him. He claims as his right to such relief that the county contracted to sell the property to others, notwithstanding his larger bid for the same.
Defendants and intervenors successfully demurred to petitioner's amended alternative writ. Upon Johnson's refusal to plead further, the trial court sustained the demurrer and disallowed the writ, whereupon he appealed.
The demurrer challenged the sufficiency of the writ. It projects as the cardinal question for our consideration whether the county court when rejecting the Johnson bids and accepting bids of others in lesser money amounts was exercising discretionary powers or acting ministerially.
Harney county had previously acquired title to 13 tracts of land through tax foreclosure sales. It later duly offered these parcels for sale at public auction by the sheriff under ORS 275.120, 1 but received no bids for any of them.
Thereafter, the county court, acting pursuant to ORS 275.110 2 and 275.200 3 advertised these tracts for sale to the 'highest bidder.'
The notice (without headline or signature) read:
'The legal descriptions of the tracts to be sold, bid forms and information of terms of sale may be secured at the office of the County Judge at any time between the hours of 8:30 A.M. to 12 noon and 1 P.M. to 5 P.M., Mondays through Friday inclusive.
'Any person may bid on any one or all of said tracts; bids will be received at any time after the publication of this notice, up to 10 A.M., March 10, 1959.
'It is ordered that this notice be published in the Burns Times Herald, a newspaper of general circulation in Harney County, Oregon, on February 5, February 12, and February 25, 1959.' (Emphasis supplied.)
Johnson submitted separate bids for each of the 13 parcels, together with checks representing one-third of the total amount bid for each tract. We are here concerned only with four of his bids; that is, those made for tracts 4, 5, 6 and 10.
Each of these four bids was identical in terms, except for land descriptions, land areas and the amount of the bid. We, therefore, set up only one bid (for tract 6) to disclose the general content of the four:
'Bid on Harney County Tax Foreclosed Lands
'I, Kenneth A. Johnson, hereby submit a bid of $2.11 per acre on the following described tax foreclosed lands; bids to be opened and read the 10th day of March 10AM, 1959, in the County Court Room, Harney County Court House, Burns, Oregon:
'[here follows description of taxforeclosed lands]
'Containing 1600 acres, more or less.
'It is also understood that Harney County reserves the right to right-of-way for county roads and highways.
'Dated this 9th day of March, 1959, at Burns, Oregon.
'Note: Bids for less than $2.00 per acre will not be considered.' (Emphasis supplied.)
Johnson bid $2.11 per acre for tracts 6 and 10 and $2.55 per acre for the land comprising tracts 4 and 5.
The bids of others for tracts 4, 5 and 6 were lower than those made by Johnson for the same parcels. The writ reveals that bids for those tracts on a per-acre basis were, respectively, $2.25, $2.20 and $2.06. Petitioner's bid for tract 10 was the only bid received for that parcel but was not accepted.
The problem presented to us by the record may be more simply stated in this form: Was the county court vested with a discretionary power to examine the various bids and in the exercise of that right, determine which bids were in the best interests of the county, notwithstanding their monetary disparities.
The defendants assert that such powers of discretion were imposed upon the county court by the statutes to which we will later make further reference; and, therefore, mandamus will not lie to compel the relief which petitioner seeks.
The petitioner, to the contrary, relies upon a construction of ORS 275.200, supra, which, he says, casts upon the county court a ministerial duty rather than a discretionary power which respect to the acceptance or rejection of the bids, and acting ministerially it had no alternative but to accept his higher offers to purchase.
While mandamus will lie to compel inferior tribunals, public officers or administrative bodies to perform duties or functions imposed upon them by law, it will not undertake to control judicial discretion as to the manner in which such duties or functions should be performed. ORS 34.110; Olds v. Kirkpatrick, 183 Or. 105, 110, 191 P.2d 641, and cases there cited. Even though the discretionary action was erroneous, mandamus will not lie to compel an amendment or correction of the judgment. State ex rel. v. Malheur County Court, 54 Or. 255, 258, 101 P. 907, 103 P. 446; Salem Sand & Gravel Co. v. Olcott, 97 Or. 253, 261, 191 P. 776.
Mandamus can be invoked, however, to correct an arbitrary abuse of discretion, in the absence of any other adequate remedy, even though it results in the court's review of the officer's exercise of discretionary power. Riesland v. Bailey, 146 Or. 574, 578, 31 P.2d 183, 92 A.L.R. 1207; Ruonala v. Board of County Commissioners, 212 Or. 309, 318, 319 P.2d 898.
ORS 275.110, 275.120, 275.190(1) 4 and 275.200 are, respectively, Sections 1, 2, 8 and 16 of ch. 334, Oregon Laws 1949. They must be read pari materia. Two types of sales are provided for: (1) a sale at public auction by the sheriff after due notice (ORS 275.120) when ordered by the county court (see ORS 275.110); and (2) if no sale is consummated by the sheriff, the county court may thereafter sell the parcel without notice at a private sale (see ORS 275.200).
In these sections we find a continuing overall element of discretion vested in the county court and underlying the sales procedures for county-owned property.
The right to sell any real property of the county accrues under ORS 275.110, supra. It is this section which authorizes a county to sell 'Whenever * * * [the] county court deems it to be for the best interests of the county * * *.' (Emphasis supplied.) This marks the beginning point of the discretion conferred with relation to the county's power to dispose of its property. Reading the act of 1949 in its entirety reveals that the legislature had in mind the welfare and best interests of the county and not of the individuals seeking to buy property.
Under the provisions of ORS 275.190(1), supra, it is left to 'the discretion of the county court' to exercise its discretion in three particulars: (1) whether the purchase price would be payable all in cash or by cash and credit; (2) the margin of cash required above 10 per cent of the purchase price, if on credit; (3) the terms of the credit, including the interest rate.
When we look to ORS 275.200 we find it, too, couched in terms of some discretion. There we learn that 'If any such lands remain unsold after the time set * * * in the sheriff's * * * notice [see ORS 275.120 and 275.140] * * * the county court may, at any meeting thereof * * * sell such lands * * * at private sale without further notice but for not less than the largest amount bid therefor at any such sale, or, if no bid therefor was made, at such price as the county court deems reasonable.' (Emphasis supplied.)
The petitioner's main argument turns on the construction of the phrase in ORS 275.200, supra, reading: 'the largest amount bid * * * at any such sale.' He argues that it refers only to the bids made at any subsequent private sale conducted by the county court. To the contrary, the defendants represent the words 'any such sale' refer to the largest amount which may have been bid at any previous public sale of the same property when offered at auction by the sheriff.
The interpretation accorded by the petitioner to the phrase 'any such sale' rests solely upon a familiar rule of grammar that the word 'such' refers to the last antecedent. The last antecedent in the exceptionally long sentence in which it appears is 'private sale.' Hence, petitioner argues that it became the duty of the county court to sell the four tracts to him because his bid...
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