State ex rel. Harvey v. County Court of Malheur County

• Decision Date: 25 May 1909
• Parties: STATE ex rel. HARVEY et al. v. COUNTY COURT OF MALHEUR COUNTY et al.
• Court: Oregon Supreme Court

101 P. 907

54 Or. 225

STATE ex rel. HARVEY et al. v. COUNTY COURT OF MALHEUR COUNTY et al.

Supreme Court of Oregon

May 25, 1909

Appeal from Circuit Court, Malheur County; Geo. E. Davis, Judge.

Application for mandamus by the State, on the relation of James Harvey and another, against the County Court of Malheur County and others. A demurrer to the writ was sustained, and relators appeal. Affirmed.

This is a proceeding in mandamus to compel the county court of Malheur county to amend an order of prohibition made by it in June, 1908. The writ sets forth: That the petitioners are residents, taxpayers, and citizens of the city of Vale, in Malheur county, engaged in retail liquor business in that city, and have large sums of money invested in the same; that the city charter was passed by the Legislature on the 21st day of February, 1905; that the local option law went into effect June 24, 1904; that by the charter the city council was granted full power and authority to license, tax regulate, or prohibit the sale of spirituous, malt, or vinous liquors; that on the 30th day of April, 1908, a petition was filed, calling for a vote on the question of prohibition in the county of Malheur as a whole; that no separate petition for a vote on prohibition was filed for the city of Vale that an election was held pursuant to such petition notwithstanding the fact that no notices were ever issued or posted as by law provided; that said election resulted in a majority of 250 votes in favor of prohibition in Malheur county; that at some date in June, 1908, the county court met in special session for the purpose of making an order of prohibition, and thereupon made and entered an order or pretended order of prohibition for the whole county of Malheur, which order bore no date, but specified that prohibition would be in force under the regulations of the local option law from and after July 1, 1908; that said order of prohibition is without authority of law; that it will work great and irreparable injury upon relators and deprive them of their business; that, by reason of the provisions of its charter, the city of Vale should have been excluded from the operation of the order of prohibition; and that said court was without authority to make any order that might limit the power of the common council regarding the sale of liquor. Defendants demurred to the writ, and the demurrer was sustained, from which order relators appeal.

Geo. W Hayes, for appellants.

A.M Crawford,

for respondents.

McBRIDE, J. (after stating the facts as above).

It is claimed by appellants that, irrespective of any view which the court below might have taken of the contention in regard to the plenary power of the city of Vale over the liquor traffic under the conditions of its charter, the allegation in the writ of failure to post notices of the election was sufficient to require the circuit court to hear and determine the case on that question. With this contention we are unable to agree. The writ is defective as to the allegation of want of notice. Its language is, "No notice was ever issued or posted as by law provided." In this language it followed the petition. Had the pleader been content with alleging that no notice was ever issued or posted, an issuable fact would have been stated; but the addition of the words, "as by law provided," makes the allegation a mere statement of a conclusion of law. It is equivalent to saying that, in the pleader's judgment, there was something in the manner or time of posting, or in the substance of the notices, that rendered them invalid. There was therefore no question of fact to be tried by the lower court.

Upon the second proposition presented, we think the law is also with the respondent. It appears from the writ that in June, 1908, the county court made an order of prohibition which embraced the whole county of Malheur, including the city of Vale, which appellants claim was exempt, by the provisions of the charter, from the operation of the local option law. If the making of this order was a mere ministerial act, involving no exercise of judgment or judicial power, mandamus would probably be the proper remedy. 19 A. & E.Ency. 740; Simon v. Durham, 10 Or. 52; Boston Turnpike Co. v. Pomfret, 20 Conn. 590. But if the required act involves the exercise of judgment or discretion, or, in other words, if it is a judicial act and such judgment has been once exercised, mandamus will not lie to compel a tribunal to amend or correct its judgment, even though it may have acted erroneously. Tapping on Mandamus, 158, 160; High on Extra. Legal Remed. §§ 154, 188-190. Mr. High, at section 154, states the rule as follows: Mandamus "will not lie to compel a court to give a particular construction to a statute in a matter properly within its jurisdiction. And in all such cases the writ is refused, regardless of whether the inferior tribunal has decided properly or improperly in the first instance." And again, at section 188, he says: "Nor will the writ be granted to reverse the decisions of inferior courts, upon matters properly within their judicial cognizance, or to compel them to retrace their steps, and correct their errors in judgments already rendered." He further says (section 190): "Even if the party aggrieved has no right of appeal, or if a writ of error will not lie to the judgment or ruling of the court below, the same inflexible rule applies, and, if the court properly had jurisdiction of the questions presented for its determination, the want of any remedy by appeal affords no ground for the exercise of the jurisdiction by mandamus." Now while the mere act of examining the clerk's abstract of the vote and declaring the result of an election may be, in many cases, largely ministerial, we are of the opinion that, under the circumstances disclosed in the case at bar, the duties of the county court, were, to a large extent, judicial. In the present case the court was confronted with a delicate question of law. If the city of Vale was exempt, by the conditions of its charter, from the operation of the local option law, it was the duty of the court to make that exemption apparent in its order. If it was subject to the provisions of that law, it was its duty to make an order which would apply to the county as a whole. A question of law was before it to be decided, and, in passing upon it, the court acted just as much in a judicial capacity as we do in passing upon the same question on appeal. We think the court below was correct in holding that it had no power to compel the county court to amend its order of prohibition.

But waiving these preliminary questions, and coming to the main contention of appellants, was the action of the county court in entering an order of prohibition for the entire county of Malheur, erroneous? The theory of appellants is that the act of February 21, 1905 (Sp.Laws 1905, p. 127), repealed the local option law as to the city of Vale, and that no election for the county of Malheur, as a whole, could thereafter be held under the provisions of that law. They claim that the Vale charter act of 1905 operates both as an express and an implied repeal of the local...