State ex rel. Coffey v. Multnomah County

• Decision Date: 02 January 1917
• Citation: 161 P. 959,82 Or. 428
• Parties: STATE EX REL. COFFEY, COUNTY CLERK, v. MULTNOMAH COUNTY ET AL.
• Court: Oregon Supreme Court

161 P. 959

82 Or. 428

STATE EX REL. COFFEY, COUNTY CLERK, v. MULTNOMAH COUNTY ET AL.

Supreme Court of Oregon

January 2, 1917

Department 2. Original mandamus proceedings by the State, on the relation of John B. Coffey, County Clerk, against Multnomah County and Rufus C. Holman, W. L. Lightner, and Philo Holbrook, County Commissioners of Multnomah County. Demurrer to the application for an alternative writ sustained.

This is a special proceeding to compel the performance of an act which it is alleged the law enjoins as a duty resulting from an office. An alternative writ of mandamus, issued from this court, substantially states that the relator, John B. Coffey is the county clerk of Multnomah county, Or.; that his predecessor in office, F. S. Fields, pursuant to the provisions of a statute applicable to that county, collected in advance from parties litigant certain sums of money on account of fees, which when earned were paid over to the county treasurer, and the remainder was held in trust for the depositor, to be returned when his cause was finally determined, if the prescribed fees earned for the services performed did not exhaust the payment exacted (L. O. L. § 1114); that Fields deposited the money so received, and not earned by the county as fees, with the American Bank & Trust Company, which failed, and by reason thereof he was unable when his term of office expired, to deliver to Coffey $15,522.43 which had been so left with the bank; that in order to meet the payment of such loss a tax was duly levied for that purpose by the county court of Multnomah county pursuant to the provisions of an enactment filed in the office of the secretary of state February 10, 1915 (Gen. Laws Or. 1915, c. 62), and the sum of money stated has been collected and is now in the county treasury; that on November --, 1916, the relator demanded in writing of the defendants Rufus C. Holman, W. L. Lightner, and Philo Holbrook, as members of and constituting the board of county commissioners of that county, that an order be passed directing the issuance of a warrant on the general fund of that county payable to the relator as county clerk in the sum of $15,522.43, to make good such deficiency, and to transmit the command to the county auditor for final account, but the defendants then and now refuse to comply therewith, on the ground that no efficient means has been provided by law whereby such credit could be allowed. The defendants were required forthwith to assemble as the board of county commissioners and make the order so requested, or in default thereof to show, at a day and hour specified, why they had not done so, and then and there to return the mandate. A demurrer to the writ challenges its sufficiency on the ground that it does not state facts sufficient to authorize the relief demanded.

Martin L. Pipes, of Portland (John B. Cleland, of Portland, on the brief), for plaintiff.

Walter H. Evans, Dist. Atty., and Arthur A. Murphy, Deputy Dist Atty., both of Portland, for defendants.

MOORE C.J. (after stating the facts as above).

The question to be considered is whether the statute referred to prescribes the means of disbursing to the persons entitled thereto the moneys so collected by taxation. Section 1 of the enactment substantially directs the county court of Multnomah county, Or., to make good the loss of $15,522.43 "by giving the present county clerk, John B. Coffey, credit in his fee account to the amount of said deficiency." Gen. Laws Or. 1915, c. 62. The other parts of the statute, so far as material herein, read:

"That the said John B. Coffey shall pay to litigants having funds as shown by the records of the said county clerk's office due them on account of said litigants' deposit fund, the full amount thereof as the same shall become due to them under the existing laws of the state, and shall also permit papers to be filed and charged against said several funds to the same extent as though he had received said money in full from the said F. S. Fields." Section 2.

"The auditor and treasurer of Multnomah county, Oregon, shall give the said John B. Coffey credit for the full amount of said deficiency, and shall charge against said amount the fees earned by said county clerk and charged against the credits on the records of his office which stood to the credit of said litigants at the time the said F. S. Fields retired from office. As soon as said several items of litigation have been concluded and all of the litigants have been paid the balance due them under the laws of the state, the county clerk shall pay over to the county treasurer the balance of the fund received by him from the said F. S. Fields." Section 3.

The rule is quite general that, in the absence of a statute imposing upon a county liability for the default of any of its officers in the performance of a duty enjoined by law, a private party who suffers injury by reason of a breach of such duty cannot maintain an action against the quasi corporation to recover the damages sustained. 11 Cyc. 498. Thus in Vigo Tp. v. Knox County, 111 Ind. 170, 12...