Phy v. Wright

• Decision Date: 30 March 1915
• Citation: 75 Or. 428,147 P. 381
• Parties: PHY v. WRIGHT, COUNTY CLERK.
• Court: Oregon Supreme Court

147 P. 381

75 Or. 428

PHY v. WRIGHT, COUNTY CLERK.

Supreme Court of Oregon

March 30, 1915

In Banc. Plaintiff filed his cost bill, and defendant moves to retax. Bill modified and approved.

See also, 146 P. 138.

This was an original proceeding in mandamus in this court. The plaintiff prevailed and filed his cost bill containing the following items:

Filing fee ......................

$15 00

Trial fee .........................

6 00

Brief (23 pages) .................

25 00

Statutory attorney fee (costs) ...

15 00

______

Total ........................

$61 00

The defendant objected to each of these items on the ground that there is no statute authorizing the taxation or collection of such fees in an original proceeding in this court, and now moves to retax the same for like reasons.

Crawford & Eakin, of La Grande, for plaintiff. Cochran & Eberhard, of La Grande, for defendant.

BURNETT J. (after stating the facts as above).

In its latest amended form section 2 of article 7 of the Oregon Constitution says:

"The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment shall remain as at present constituted until otherwise provided by law. But the Supreme Court may, in its own discretion, take original jurisdiction in mandamus, quo warranto, and habeas corpus proceedings." The statute prescribing the procedure in mandamus was enacted as part of the Code of Civil Procedure in 1862, and remains unchanged to this day. Section 624, L O. L., reads thus:

"The circuit court or judge thereof of the county wherein the defendant, if a public officer or body, exercises his or its functions, or if a private person or corporation wherein such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of the proceeding herein prescribed, except that the Supreme Court shall have jurisdiction of such proceeding in all cases arising in the state where it may be necessary or proper to enable such court to maintain its appellate jurisdiction."

In our judgment the effect of the excerpt from the fundamental law already quoted is to enlarge the jurisdiction of this court beyond the terms of section 624, L. O. L., and make it, so far as original power is concerned, concurrent with the circuit courts of the state. In taking original jurisdiction therefore, of a case like the present, this court must adopt and be governed by the procedure laid down before for the circuit court. In other words, as to original jurisdiction, when it chooses to exercise the same, it assumes the same relation to proceedings in mandamus as that occupied by any circuit court. Considering that the defendant was called to account in this proceeding in respect to his functions as the county clerk of Union county, it is plain that this court must be governed exactly as that court would have been had the proceeding been initiated there.

An incident in mandamus procedure is described in section 621, L. O. L.:

"If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained by reason of the premises, to be ascertained in the same manner as in an action, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay."

It has been decided by this court in Bush v. Geisy, 16 Or 355, 362, 19 P. 123, that the right of a plaintiff in a mandamus proceeding to recover costs under this section does not depend upon his claiming or recovering damages therein. He is entitled to costs as a matter of course upon obtaining the relief sought. We consider, therefore, that the costs and disbursements should be taxed in this court in this original proceeding exactly as they would have been taxed in the circuit court of Union county if the same result...