Seufert et al. v. Stadelman et al.

• Decision Date: 09 April 1946
• Citation: 167 P.2d 936,178 Or. 646
• Parties: SEUFERT ET AL. <I>v.</I> STADELMAN ET AL.
• Court: Oregon Supreme Court

178 Or. 646

167 P.2d 936

SEUFERT ET AL.v.

STADELMAN ET AL.

Supreme Court of Oregon.

Argued February 27, 1946.

Affirmed April 9, 1946.

Rehearing denied May 28, 1946.

Judgment — Courts — Inherent power

1. The courts have the inherent power, during the term in which a judgment is rendered, to modify, set aside or vacate it, no matter how conclusive in character the judgment may be.

Mandamus — Right of appeal

2. Action of trial court in vacating a peremptory writ of mandamus against one of the defendants, after appeal therefrom had been taken, was not error where it did not deprive such defendant of his right of appeal.

Parties — Demurrer — Defect of parties

3. Demurrers upon ground of defect of parties defendant were not well taken when they failed to indicate in what respect there was such a defect and failed to state who the omitted party or parties may be.

Mandamus — Pleading — Petition

4. The petition for writ of mandamus is no part of the pleadings in the action, and, upon the issuance of an alternative writ, the petition becomes functus officio, and the alternative writ is regarded as being the complaint.

Pleading — Demurrer — Amended complaint

5. In ordinary actions, the sustaining of a demurrer to the complaint has the effect of overturning the complaint, and plaintiff, if he seeks to proceed further, must file an amended complaint.

Mandamus — Petition for writ

6. Although petition for writ of mandamus, upon issuance of alternative writ, becomes functus officio in the sense that it had performed its office, it did not cease to exist as a part of the record and, if otherwise sufficient, might properly serve as the base upon which a new writ might issue after vacating order sustaining demurrer to alternative writ.

Mandamus — City officers — Notice

7. Where the right to require the performance by city officers of duties with respect to submitting proposition to the voters was clear, and it was apparent that no valid excuse could have been given for not performing them, a peremptory writ of mandamus could have issued against all such officers upon proper notice.

Mandamus — City officers — Notice

8. Before a peremptory writ of mandamus could issue against city officers, they were entitled to be given proper notice and every opportunity of defense that they could have had under an alternative writ.

Mandamus — City officers — Notice

9. Where, after issuance of peremptory writ of mandamus against city recorder, all parties were present in court at time motion was made for issuance of writ against mayor and city councilmen as well as recorder, and question whether writ should be granted as against council and mayor was continued to the following day at request of their counsel, such defendants had sufficient notice and opportunity to be heard and waived further notice.

Mandamus — Issuance of peremptory writ

10. Before ordering a peremptory writ of mandamus to issue against all defendants, the court should have made a formal order vacating its previous order sustaining defendants' demurrer to the alternative writ, and should have overruled such demurrer, but the issuance of the peremptory writ could be considered as having effected what, in ordinary procedure, should have been done in more formal fashion.

Mandamus — City officers

11. The issuance of a peremptory writ of mandamus against mayor and councilmen, in addition to city recorder, to compel the submission to the voters of a proposed initiative ordinance, was proper although the mayor and councilmen had no function to perform until after the initiative petition had been filed by the recorder.

Elections — Authority to hold

12. The right of the people to hold an election must be based upon some authority conferred by existing law.

Municipal corporations — Elections — State law

13. In so far as a municipality does not provide a complete method of procedure in the holding of municipal initiative elections, the state law controls.

Municipal corporations — Elections — Procedure

14. Where municipality had by ordinance provided the procedure for holding of initiative and referendum elections, such procedure was exclusive and that provided by state statute was not applicable.

Municipal corporations — Elections — Date

15. The city council is not required to call an election for the date mentioned in petition for initiative election if, in its legislative discretion, another date is more suitable.

Municipal corporations — Measures initiated — Elections

16. Whether or not the city council approves of a proposed initiative measure, it has no alternative under the constitution and ordinance other than to submit it to a vote of the people at the earliest practicable and convenient date.

Municipal corporations — Elections — Date

17. If a general election is to be held within a reasonable time after the date designated in petition for special initiative election, city council should fix the date of the general election as that at which the proposed initiative ordinance should be submitted, but otherwise it should either adopt the date suggested by the petition or such other date within reasonable time as it considers more suitable.

Mandamus — City officers

18. The refusal of city officials to perform duties which are neither permissive nor discretionary, when properly requested to do so, renders them subject to mandamus.

Mandamus — City officers — Petitions

19. Writ of mandamus compelling city officials to perform duties required of them in submitting a proposition to the voters at special election, and which writ alleged that the petition was signed by the requisite number of voters, was not demurrable, where the matter of the required number of voters was one more peculiarly within the knowledge of city officers than of petitioners, and the allegation would be regarded as one of ultimate fact rather than of legal conclusion.

Mandamus — Peremptory writ

20. Where peremptory writ of mandamus did not strictly conform to the alternative writ, but the variance was slight and immaterial, the peremptory writ was not thereby vitiated.

                  Issuance of peremptory writ of mandamus in first instance
                note, 116 A.L.R. 663; see 35 Am. Jur. 118
                  29 C.J.S., Elections, § 66
                

IN BANC.

Appeals from Circuit Court, Wasco County.

EARL C. LATOURETTE, Judge.

Mandamus proceeding by W.J. Seufert and Northern Wasco County People's Utility District against George P. Stadelman, Mayor, and Paul Weigelt and others, constituting the City Council of Dalles City, Oregon, and others, to compel the defendants to submit to the voters a proposed initiative ordinance granting to the plaintiff Utility District a franchise to install and operate facilities for the transmission and distribution of electrical energy. From an order directing that a peremptory writ issue against all defendants, they appeal.

AFFIRMED. REHEARING DENIED.

C.L. Gavin, of The Dalles, and Ralph E. Moody, of Salem, for appellants.

Gus J. Solomon, of Portland (with Donald E. Heisler, of The Dalles, on the brief), for respondents.

HAY, J.

This was a proceeding in mandamus, instituted by the relators, W.J. Seufert, a legal voter of Dalles City, Oregon, and Northern Wasco County People's Utility District, a people's utility district organized under the law of Oregon, against the mayor, councilmen and recorder of Dalles City.

The relator Seufert, with other persons, alleged to have numbered in excess of fifteen per cent of all the legal voters of Dalles City, on July 12 and 13, 1945, tendered to the defendant recorder for filing a petition demanding that there be submitted to the legal voters of Dalles City, for their approval or rejection, at "the" special city election to be held September 18, 1945, a proposed initiative ordinance granting to Northern Wasco County People's Utility District a twenty-year franchise to install and operate within the city's corporate limits facilities for the transmission and distribution of electrical energy for service to the city and its inhabitants. The recorder refused to file the petition.

The petition, requesting mandamus against all of the defendants, was filed July 23, 1945. An alternative writ of mandamus was issued, but against the recorder only.

The recorder demurred to the alternative writ upon the grounds (1) that it did not state facts sufficient to justify the issuance of a writ of mandamus, and (2) that there was a defect of parties defendant. The mayor and councilmen, although the writ did not run against them, appeared and filed a similar demurrer. The circuit court sustained both demurrers and directed the issuance of an amended alternative writ against the recorder, which was done. The recorder demurred to the amended alternative writ upon the same grounds as before, and the mayor and councilmen did likewise. On August 17, 1945, the court sustained the demurrer of the mayor and councilmen, overruled the recorder's demurrer, and ordered that a peremptory writ issue against him. From this order, the recorder, on August 18, 1945, appealed to this court, and on the same day served and filed an undertaking on appeal, executed by himself and by a qualified surety company. On August 20, 1945, the circuit court vacated the order from which the recorder had appealed, recalled the peremptory writ which had issued thereon, and ordered that a peremptory writ issue against all of the defendants. On August 21, 1945, a peremptory writ was issued accordingly, and, on the same day, all of the defendants appealed to this court from the circuit court's order last mentioned. The separate appeals involve substantially the same points, and, by stipulation of the parties, they have been consolidated for hearing.

It is asserted that the court had no jurisdiction, after an appeal had been perfected, to set aside the peremptory writ which had been issued against the recorder.

1. There is inherent in courts a general power, during the term in which a judgment...