Parker v. Clatsop County

• Decision Date: 27 January 1914
• Parties: PARKER v. CLATSOP COUNTY ET AL.
• Court: Oregon Supreme Court

138 P. 239

69 Or. 62

PARKER v. CLATSOP COUNTY ET AL.

Supreme Court of Oregon

January 27, 1914

Department 2.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by F. L. Parker against Clatsop County and others. From a decree dismissing the suit, plaintiff appeals. Modified.

G. C Fulton, of Astoria, for appellant. C. W. Mullins of Astoria, for respondents.

McNARY J.

This is a proceeding in equity designed to annul a special election held throughout Clatsop county, Or., on November 4, 1913 having for its purpose the issuance of bonds for the improvement of certain roads.

On September 30, 1913, the registered voters of Clatsop county, Or., in numbers corresponding to one-twentieth of the greatest number of votes cast in the county at the last preceding general election for Justice of the Supreme Court, presented to the county court a petition praying that a special election be called for the purpose of submitting to the voters of the county the question of issuing bonds to obtain money to be used in the construction and maintenance of permanent highways in the county.

On October 3d following the county court entered an order granting the prayer of the petitioners, and calling for an election to be held in the county on Tuesday, November 4, 1913, designating three particular roads in the county to be improved by the money accruing from sale of bonds in the event the issue carried. The minimum amount to be expended on each road was set forth in the order.

Notice of the election was given in the manner and according to the form prescribed by statute. Subsequent to the election, and upon a canvass of the votes cast thereat, the county court, on November 26, 1913, entered an order to the effect that the election had been duly called and properly conducted, and ascertained and determined that 1,981 votes were cast at the election. Of this number, 1,171 favored the issuance of the bonds, while 810 were cast against the proposition. The court also found the total valuation of all the property in the county, for the purpose of taxation, to be $19,960,322.84, and entered an order directing the issuance of bonds to the amount of 2 per cent. of the assessed value of the county, which aggregated $399,200, and equitably apportioned the expenditure of such sum upon the three roads designated in the petition; each road receiving a smaller sum of money than the minimum amount set forth in the proceedings leading to the election.

In the notices of the election, a misdescription occurred in the initial point of the second road proposed to be improved. The highway is described as beginning at the eastern terminus of county road No. 77; whereas, its beginning point should have been described as commencing at the western terminus of county road No. 77. The election was held under the provisions of the General Laws of Oregon for 1913, p. 623 et seq. The registration books were closed fifteen days before the day of the election, while the polls were kept open from 8 o'clock in the forenoon until 8 o'clock in the afternoon.

The act of the legislative assembly affording authority for the measures taken herein provides, so far as is material, that, whenever a number of registered voters of a county, equaling one-twentieth of the greatest number of votes cast in that county at the next preceding general election for any person for Judge of the Supreme Court, shall petition the county court, asking that a special election be called for the purpose of submitting to the voters of the county the question of issuing bonds for the construction and maintenance of permanent roads in the county, the county court shall make an order directing that a special election be called and held for the purpose of determining the desire of the electors, and shall cause printed notices of the election to be posted, particularly specifying the amount of bonds proposed to be used, the length of time they shall run, the maximum rate of interest they shall bear, the roads to be improved, and the amount to be expended on each. The statute requires that the notices shall be posted at least 20 days before the day of the election, and that the election shall be conducted and the votes canvassed in the same manner as at a general election.

Section 11 of the county bond act (Laws 1913, p. 174) provides: "If at any general or special election as provided for in this act a majority of the voters voting at such an election shall vote in favor of issuing such bonds, the county court shall enter an order in its journal declaring that fact, and that order shall be absolutely conclusive as to the regularity of all the proceedings in reference to the matter; the said order shall also designate the amount of the total assessed valuation of all the property within the county, and also the amount of all the previous debts and liabilities of said county incurred for road purposes and remaining unpaid; and such order as to the amount of the said assessed valuation, and as to the amount of the said indebtedness shall be prima facie evidence of said fact."

"Sec. 19. No bond shall be issued under this act that will in the aggregate, together with the bonds outstanding, and the bonds offered to be sold, be in excess of two (2) per cent. of the assessed valuation of the county at the time the bonds are issued."

The first objection found by plaintiff is bottomed upon the proposition that the initial point in the second road is erroneously indicated in the notices of election. The road is described as follows: "Second. A county road beginning at the eastern terminus of county road No. 77, accordingly as the same is described at page 139, vol. 2, of County Road Book, in the office of the county clerk of this county; running thence southeasterly by the most practicable route through Olney, Jewell, and Vesper, to a point on the east boundary line of Clatsop county where the same is intersected by county road No. 77, above described."

It will be recalled that the statute requires that the roads to be improved shall be particularly specified, not that the termini of the road must be given. The description of the road is accurate in every respect, save that the word "eastern" instead of the word "western" is used. Irrespective of the erroneous substitution of the word "eastern" for "western," no voter could have been misled in regard to the road contemplated in the improvement, for, by pursuing the course of the road to its ultimate destination, through the towns of Olney, Jewell, and Vesper, the identity of the road was unmistakable and ever present, which situation rendered harmless any error contained in the initial course of the road.

The second and most important question for determination is whether the county court had jurisdiction to order the sale of bonds in an amount less than the sum mentioned in the petition and set forth in the notices of the election, namely, $400,000. It is argued, with much learning, by counsel for the plaintiff that the court was powerless to provide for the expenditure of any sum less than that indicated in the petition for and notices of the election; while, with equal erudition, counsel for respondent argues that the assessed valuation of the county was a sum in excess of $35,000,000, as estimated by the State Tax Commission, and for that reason the court should have ordered the expenditure of the minimum sum contained in the proceedings had prior to the election.

Section 19 of the enactment provides that "no bonds shall be issued under the act that will make in the aggregate together with the bonds outstanding, and the bonds offered to be sold, be in excess of two (2) per cent. of the assessed valuation of the county at the time the bonds are to be issued." It will be remembered that 2 per cent. of the assessed valuation of the county as determined by the assessment roll of the assessor would yield a sum of money less than the amount specified in the petition for and...