Shipley v. Hacheney

• Decision Date: 16 January 1899
• Citation: 34 Or. 303,55 P. 971
• Parties: SHIPLEY v. HACHENEY, Treasurer.
• Court: Oregon Supreme Court

55 P. 971

34 Or. 303

SHIPLEY v. HACHENEY, Treasurer.

Supreme Court of Oregon

January 16, 1899

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Mandamus proceedings by W.J. Shipley against Frank Hacheney, treasurer of the city of Portland. There was a judgment for plaintiff and defendant appeals. Affirmed.

This proceeding was brought to coerce the payment of 8 per cent per annum upon an interest-bearing warrant of the city of Portland, issued January 20, 1898, notwithstanding the reduction of the legal rate of interest to 6 per cent. by the act of October 14, 1898 (Laws 1898, Sp.Sess., p. 15). The judgment of the court below was for the plaintiff, and the defendant appeals.

Ordinance No. 8,634 of said city, adopted in December, 1893, provides among other things, that the city treasurer shall keep a record of all warrants presented to him for payment, and, if he has no appropriate funds with which to pay them, he shall indorse thereon the word "Presented," with the date thereof, and subscribe his name and office. It is further provided that all such warrants shall bear interest at the rate of 8 per cent. per annum until there are sufficient funds in the hands of the treasurer with which to pay the same, and the holder is so notified.

J.M. Long, for appellant.

W.A. Cleland, for respondent.

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

It is urged: First, that a city, like a sovereign state or county which is an agency of the state, is not required to pay interest unless self-imposed; and, second, that the common council was without power or authority under the charter to pass said ordinance requiring the city to pay interest at the rate of 8 per cent. upon indorsed warrants. These propositions are combated by plaintiff, who urges (1) that a city is liable for the payment of interest under general law like an individual; (2) that the council had the requisite power for the enactment of ordinance No. 8,634; and (3), as a further proposition, that by sections 218 and 219 of the new charter, which took effect October 22, 1898, the city has recognized all outstanding city warrants as valid and subsisting obligations against it, and has thereby and by virtue of section 233 ratified said ordinance, and the acts of the officers touching the issuance and indorsement of such warrants, and hence that the interest charge of 8 per cent. is still a valid claim against the city. We have just decided ( Seton v. Hoyt, 55 P. 967) that a county, being essentially but an agency or instrumentality of the state for general governmental purposes, is subject to like rules and restrictions governing its liabilities for the payment of interest as the state, and is not within the purview of the general law regulating the rate and payment of interest upon money due or to become due, which proposition is found to rest upon the principle that a sovereign state is not bound by the words of a statute unless expressly named. We are of the opinion, however, that the rule does not extend to municipalities in the strict sense of that term. The state makes use of the counties, which are quasi corporations of its own creation, that it may the more effectually discharge its appointed duties. "Counties are," says Mr. Dillon, "involuntary political or civil divisions of the state, created by general laws to aid in the administration of government. Their powers are not uniform in all the states, but these generally relate to the administration of justice, the support of the poor, the establishment and repair of highways. All are matters of state, as distinguished from municipal, concern. They are purely auxiliaries of the state; and to the general statutes of the state they owe their creation, and the statutes confer upon them all the powers they possess, prescribe all the duties they owe, and impose all the liabilities to which they are subject. Considered with respect to the limited number of their corporate powers, the bodies above named rank low down in the scale or grade of corporate existence, and have been frequently termed quasi corporations. This designation distinguishes them, on the one hand, from private corporations aggregate, and, on the other, from municipal corporations proper, such as cities or towns acting under charters or incorporating statutes, and which are invested with more powers, and endowed with special functions relating to the particular or local interests of the municipality, and to this end are granted a larger measure of corporate life." Dill.Mun.Corp. (4th Ed.) § 25. A municipal corporation proper is called into being either at the direct solicitation or by the tacit consent of the people seeking its benefit, and is mainly and primarily for their interest, advantage, and convenience. While, in a sense, it is an agency of the state to assist in the civil government of all the inhabitants, yet its chief and paramount purpose is to promote local self-government, and to regulate and administer the local or internal affairs of the city, town, or district incorporated. Id. §§ 19, 20, 22, 23; Board v. Mighels, 7 Ohio St. 109; and Commissioners of Talbot Co. v. Commissioners of Queen Anne's Co., 50 Md. 245. There naturally ensues, from the difference in method and purposes...