Ross v. Marion County Court

• Decision Date: 31 July 1934
• Parties: ROSS v. COUNTY COURT OF MARION COUNTY.
• Court: Oregon Supreme Court

35 P.2d 484

147 Or. 695

ROSS v. COUNTY COURT OF MARION COUNTY.

Supreme Court of Oregon

July 31, 1934

Department 2.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Mandamus proceeding by Thelma E. Ross against the County Court of Marion County. From an order quashing an alternative writ of mandamus and dismissing the complaint, petitioner appeals.

Affirmed and peremptory writ of mandamus denied.

C. L. Marsters, of Newport, for appellant.

William H. Trindle, of Salem, for respondent.

BEAN Justice.

This is a mandamus proceeding to compel the county court to make an order allowing petitioner the sum of $20 a month from the moneys of said county for the support of herself and child under the provisions of section 27-1301 et seq., Oregon Code 1930.

The alternative writ of mandamus shows, in substance, that petitioner, a woman, has one child under the age of sixteen years; that her husband died January 12, 1929; that petitioner and her child are dependent wholly upon petitioner's labor for their support; that the child has no property of its own; that petitioner and her husband, the father of the child, were, prior to his death, residents of the county of Marion for more than one year, and residents of the state of Oregon for more than three years immediately prior to April 26, 1929; that said petitioner, ever since the death of her husband and at the present time, still is a resident of the state of Oregon, county of Marion; that on or about April 10, 1929, said petitioner went before the Honorable J. C. Siegmund, county judge of Marion county, and to him related the facts as herein set out; that said J. C Siegmund then and there undertook to make out, for petitioner, her application for assistance, as provided for in sections 27-1301 to 27-1321, Oregon Code 1930; that said petitioner believed and relied upon said J. C. Siegmund to set out the facts in her application as she had related them to him and as they actually were, and believed that the application had been fully made out, and, in reliance thereon, swore before the said J. C. Siegmund that the facts therein set forth were true; "that the facts set forth in the said application were true but that they have not been fully set forth in the said application as they actually existed or as were related to the said J. C Siegmund"; that about August 19, 1927, petitioner's husband was committed to the Oregon State Tuberculosis Sanitarium, and on or about February 4, 1928, petitioner's husband, on the advice and request of the doctors in attendance upon said husband, was removed to Monrovia, Cal., for his health; that petitioner went with her husband to California and there remained until his death, January 12, 1929; that neither said petitioner nor her husband established a residence California, nor was it ever their intention to do so; that on February 16, 1929, said petitioner returned to Salem, county of Marion, state of Oregon, her home, and established residence, and three months thereafter made her application; that in the application for said assistance one question and answer reads as follows: "How long have you lived in Marion County continuously prior to making this application? Give dates: From Feb. 16, 1929 to Apr. 10, 1929"; that, when the said question was asked petitioner, she related that since her return from California up to the time when she was making application for said assistance it was only three months, which is represented by said dates, but in truth petitioner resided in Salem, Marion county, Or., more than twelve years continuously prior to the making of application for assistance; that the same was related to J. C. Siegmund; that on April 26 said application was filed with the clerk of the county by said J. C. Siegmund; that the words "Dependent Mothers' Assistance" as printed in the application blanks were crossed out and in their stead was written the words "a poor allowance," all of which was unknown to petitioner; that the county court declined and refused to make an order allowing said petition for the assistance provided for in said act for the support of herself and child, or any assistance, and has since neglected and refused to direct that the money for which application has been made shall be paid to or for said petitioner.

An alternative writ was issued requiring the county court to make the order requested or show cause before the circuit court why same was not done. The return of the defendant, by J. C. Siegmund, county judge of Marion county, Or., was filed, showing, in substance, that petitioner filed application for "poor allowance," copy of which is attached to the return, which is the only application filed with the county court; that the application was not allowed for the reason that it appeared affirmatively from the face of such application that the petitioner had not resided three years in the state of Oregon and one year in the county of Marion, immediately preceding the date of filing said application, and for the further reason that said application fails to show that petitioner is entitled to such relief under the provisions of chapter 13 (section 27-1301 et seq.), of title 27 General Laws of Oregon, 1930. As a second and...