Reed v. Dunbar

• Decision Date: 07 July 1902
• Citation: 69 P. 451,41 Or. 509
• Parties: REED v. DUNBAR, Secretary of State.
• Court: Oregon Supreme Court

69 P. 451

41 Or. 509

REED v. DUNBAR, Secretary of State.

Supreme Court of Oregon

July 7, 1902

Appeal from circuit court, Marion county; R.P. Boise, Judge.

Mandamus by F.C. Reed against F.I. Dunbar, secretary of state. From an order sustaining a demurrer to the alternating writ plaintiff appeals. Affirmed.

This is a mandamus proceeding to compel the defendant, as secretary of state, to draw a warrant in favor of the plaintiff for salary alleged to be due him as fish commissioner for the month of March, 1901, and for expenses which it is asserted he incurred in the discharge of his duties during the same time. The alternative writ alleges, in substance, that in April, 1899, the plaintiff was appointed fish commissioner in pursuance of the provisions of an act of the legislature approved October 18, 1898, for the term ending October, 1902 at an annual salary of $2,500, payable quarterly, and was allowed necessary expenses incurred in the performance of his duty, not to exceed $1,700 per annum; that in April, 1901, he presented to the defendant, as secretary of state, his claim for services rendered during the quarter ending March 31, 1901, amounting to $625, salary, and $43.10, expenses; that the defendant refused to allow such claim, or any part thereof, except an amount sufficient to cover his salary and expenses for the months of January and February; that the plaintiff is the duly qualified, commissioned, and acting fish commissioner of the state; and that there is still due him the sum of $208.33 as salary, and $18.80 as expenses incurred in the performance of his duty. A demurrer to the alternative writ was sustained on the ground that the office of fish commissioner was abolished by the legislative assembly of 1901, and ceased to exist on the 1st of March of that year.

C.M. Idleman, for appellant.

D.R.N. Blackburn, Atty. Gen., and C.W. Fulton, for respondent.

BEAN C.J. (after stating the facts).

It is insisted that the question of the repeal of the act under which the plaintiff was appointed cannot be considered, because the case comes here on demurrer to the alternative writ, which alleges that he is the duly qualified, commissioned, and acting fish commissioner of the state. But we are of the opinion that, if the act has been repealed and the office abolished, the court will take judicial notice of that fact. And moreover, if the judgment is to be put upon a technical ground, it is by no means certain that the alternative writ states a cause of action. By a recent act of the legislature (Sess.Laws 1901, p. 293) it is provided that no warrant shall be drawn by the secretary of state in payment of any claim against the state unless an appropriation has first been made for the payment thereof; and it is doubtful whether an alternative writ of mandamus to compel the secretary of state to draw a warrant in payment of such a claim states a cause of action, unless it alleges that an appropriation has been made for the payment thereof. We prefer, however, to put the case upon the real question involved, rather than upon mere technical grounds.

In 1898 the legislature passed an act to provide for the propagation and protection of chinook and other species of salmon sturgeon, and food fishes in the rivers and waters of the state; to license and regulate those engaged in taking fish, the devices and appliances used for that purpose, and all persons engaged in canning or dealing in fish; and to provide for the appointment of a fish commissioner and deputies, the defining of their duties, and the fixing of their compensation. Sess.Laws 1898, p. 37. This act consists of 44 sections, defines the close season, makes it unlawful to catch or take fish, or to have in possession, sell, or offer for sale or transportation, or to transport, any fish caught during such season; provides for the appointment by the governor of a fish commissioner for a term of four years, at an annual salary of $2,500, payable quarterly; makes it the duty of the fish commissioner to devote his time to the fishing industry of the state; gives him management of the state hatcheries; and requires him to see that all laws for the protection, preservation, and propagation of food fishes are enforced; requires him to issue all licenses for fishing, packing, or dealing in fish, and pay the money received therefor over to the state treasurer, to the credit of the hatchery fund; authorizes him to propagate and stock the various streams of the state with salmon and other food fishes, and for that purpose gives him power to close any stream. In 1901 the legislature passed another act, entitled "An act to provide for the better protection of chinook, steel-heads, and all other anadromous species of salmon and other fish; and for the better protection of the fishing industry in this state and the regulation and control thereof; to regulate the time and appliances for the taking of the same; to provide for the...