Morrow County v. Hendryx

• Decision Date: 18 January 1887
• Citation: Morrow County v. Hendryx, 14 Or. 397, 12 P. 806 (Or. 1887)
• Parties: MORROW CO. v. HENDRYX, Treasurer.
• Court: Oregon Supreme Court

12 P. 806

14 Or. 397

MORROW CO. v. HENDRYX, Treasurer.

Supreme Court of Oregon

January 18, 1887

Appeal from circuit court, Umatilla county.

STRAHAN J.

On the application of Morrow county, an alternative writ of mandamus was issued out of the circuit court of Umatilla county directed to the appellant, as treasurer of Umatilla county. The command of the writ is that he pay out of the school moneys in the treasury of Umatilla county, Oregon, unto the treasurer of the county of Morrow, in said state, the sum of $2,149.32, and the further sum of $690.20, or that he appear on a day named, and show cause why he has not done so.

Section 583 of the Civil Code prescribes in what cases the writ of mandamus may issue. It is as follows: "It may be issued to any inferior court, corporation, board officer, or person, to compel the performance of an act which the law specially enjoins as a duty, resulting from an office, trust, or station. But though the writ may require such court, corporation, board, officer, or person to exercise its or his judgment, or proceed to the discharge of any of his or its functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of law."

At the regular session of the legislative assembly, in 1885, an act was passed entitled "An act to create the county of Morrow, and to fix the salaries of county judge and treasurer." Sess. Acts 1885, p. 239. After sundry provisions creating the county of Morrow, fixing its boundary, locating the county-seat temporarily at Heppner providing for the representation of such new county in the senate and house, section 5 of said act provides: "The county clerk of Umatilla county shall send to the county clerk of Morrow county, within thirty days after this act becomes a law, a certified transcript of all delinquent taxes from the assessment roll of 1884 that were assessed within the limits of Morrow county; also a certified transcript of the assessment of persons and property within the limits of Morrow county for 1884; and the said taxes shall be payable to the proper officer of Morrow county. The county treasurer of Morrow county shall, out of the first money collected for taxes, pay over to the treasurer of Umatilla county the full amount of the state tax on the assessment roll of 1884, due from citizens of Morrow county. ***"

Among other things, section 10 of said act contains the following: "The county of Morrow, within one year after its organization by the appointment of its officers, as hereinbefore provided, shall assume and pay to the county of Umatilla a just proportion of the indebtedness of Umatilla county, after deducting therefrom the value of the public property of Umatilla county; and J.L. Fuller, S. Rothchild, and J.H. Kunzie, of Umatilla county, are hereby appointed a board to determine the value of such property, and the amount of indebtedness to be assumed by said Morrow county. Said persons shall meet at the county-seat of Umatilla county, on the first day of April, 1885, or within ten days thereafter, and take and subscribe an oath before the clerk of Umatilla county faithfully to discharge their duties. Thereupon said board shall proceed with said work, and, when completed, file a report of their conclusions in duplicate with the clerks of Umatilla and Morrow counties. Within thirty days of the filing of such report in Morrow county, either county may appeal from the decision of said board to the circuit court for Umatilla county, by serving a notice of appeal upon the clerk of the other county. Upon perfecting the issues in said circuit court, either county may demand a change of venue to any other county in the Sixth judicial district of the state of Oregon, which may be agreed upon by said counties, or, in the event of their disagreement, which may be designated by the judge of said district. The trial may be by a jury, and the judgment rendered may be enforced as other judgments against counties. If the county appealing fails to recover a more favorable judgment than the finding of said board, by at least five hundred dollars, it shall pay the costs of the appeal. If no appeal be taken by either county within the thirty days above provided, the finding of said board shall be conclusive. ***" The remainder of the section relates to the compensation of the board, and how the same shall be paid.

The report of the conclusions of said board is as follows:

"To the Honorable County Courts of Umatilla and Morrow Counties: The undersigned, a board of commissioners created by house bill No. 4, entitled 'An act to create the county of Morrow, and fix salaries,' etc., approved February 16, 1885, and under said act we were called upon to adjust and determine the indebtedness and the value of property in Umatilla county, and to be assumed by said Morrow county, have performed that duty, and submit our findings herewith:

"Total value of all property and assets, outstanding taxes etc.... =$181,636 78

            Total liabilities of county,
                            .......................................
                          
                            187,168 14
                          
                            
                          
                            -----------
                          
                            Leaving a net indebtedness of
                            .......................................
                          
                            $5,531 36
                          
                            
                          
                            -----------
                          
                            The proportion of this to be assumed by Morrow county
                            this board finds to be
                            ......................................................
                          
                            $1,149 30
                          
                            Unpaid taxes, 1884, turned over to Morrow county,
                            ...................
                          
                            11,567 08
                          
                            Less school taxes due Morrow county, out of tax levy of
                            1884, ........
                          
                            4,077 17
                          
                            
                          
                            -----------
                          
                            Leaving a net balance due Umatilla county from Morrow
                            county of .....
                          
                            $8,639 21
                          
                

"A detailed statement will be found annexed.

"The board also find that there is a balance of county school money in the treasury, derived from fines, forfeitures, etc., to a portion of which Morrow county would be justly entitled; but the county school superintendent and treasurer find no authority in the laws governing disbursements of school funds authorizing them to pay such money to Morrow county. This board finds that a just proportion due Morrow county from said school fund would be $690.20, and would recommend that the honorable county court of Umatilla county instruct the treasurer of said county to pay the amount to Morrow county. The minutes of the proceedings of this board, from day to day, is also submitted herewith.

"In compliance with an order of the honorable county courts of Umatilla and Morrow counties, issued at their April term of 1885, this board, believing that their work would be expedited by the assistance of an expert bookkeeper, engaged one from Portland, who was highly recommended. Said expert on examination of the county books and records, stated that, to make an exhibit to the correctness of which he could certify, would cost $6,000 to $8,000. This board, believing that...