State ex rel. McCain v. Metschan

• Decision Date: 09 November 1896
• Citation: 46 P. 791,32 Or. 372
• Parties: STATE ex rel. McCAIN v. METSCHAN, State Treasurer. [1]
• Court: Oregon Supreme Court

46 P. 791

32 Or. 372

STATE ex rel. McCAIN v. METSCHAN, State Treasurer. ^[1]

Supreme Court of Oregon

November 9, 1896

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Action by the state, on relation of James McCain, as district attorney for the Third judicial district, against Phil Metschan, state treasurer. Judgment for plaintiff, and defendant appeals. Affirmed.

J.C. Moreland, for appellant.

Henry D. Rayner, W.W. Thayer, H.J. Bigger, and S.L Hayden, Dist.Atty., for respondent.

BEAN, J.

This is a suit, commenced by the district attorney of the Third judicial district, in the name of and on behalf of the state, to enjoin the defendant, as state treasurer, from paying a $25,000 state warrant, issued on account of the purchase of certain land in Union county for the site of an insane asylum, under an act of the legislature of 1893 (Laws 1893, p. 136), on the ground that the act in question is void, because in contravention of the provision of the constitution locating such institution at the seat of government. A demurrer to the information, for the reason that it does not state facts sufficient to constitute a cause of suit, and "that there is a defect of parties plaintiff and defendant," was overruled; and, defendant declining to plead further, a decree was entered as prayed for in the information, and hence this appeal.

In support of the demurrer it is contended that there is a defect of parties defendant, because the owner of the warrant, the payment of which is sought to be enjoined, is not a party to the suit. If this is true, and the objection had been properly taken, it would have been fatal. The rule undoubtedly is that the owner of a state or county warrant is a necessary party to a suit to enjoin its payment, and in some instances the courts, deeming him an indispensable party, refuse to proceed to a final determination of such a suit until he is brought in, although the parties to the record make no objection on that account, or even consent to proceed without him. City of Anthony v. State, 49 Kan. 246, 30 P. 488; Buie v. Cunningham (Tex.Civ.App.) 29 S.W. 801; King v Commissioners' Court (Tex.Civ.App.) 30 S.W. 257; State v. Anderson, 5 Kan. 90; Graham v. City of Minneapolis, 40 Minn. 436, 42 N.W. 291; Channel Co v. Bruly, 45 Tex. 6; Board v. Railway Co., 46 Tex. 316. But in this case, while it is not apparent, from the face of the information, to whom the warrant was issued, or by whom it was owned at the time the suit was brought, the undertaking and order for a preliminary injunction and the decree appealed from all state that it was issued to the present defendant; so that the court would hardly be justified in holding that it affirmatively appears there is a defect of parties. But, however this may be, the demurrer itself is insufficient, both in form and substance, to raise the question. The statute provides that objections apparent upon the face of the complaint, other than such as go to the jurisdiction of the court and that it does not state facts sufficient to constitute a cause of action or suit, are waived, unless taken by demurrer (Hill's Ann.Laws, § 71), and that a demurrer shall be disregarded unless it distinctly specifies the grounds of objection ( Id. § 68). At common law a demurrer for want of necessary parties defendant was required to point out, either by name, or in some other definite way, from the facts stated in the bill, those who should have been, and who were not, made parties to the suit, so as to enable the plaintiff to obviate the objection by bringing them in (Story, Eq.Pl. § 543; Dias v. Bouchaud, 10 Paige, 445); and this rule has not been abrogated by the provisions of the Code (1 Rum.Prac. § 383; 1 Van Santv.Pl. 75; Durham v. Bischof, 47 Ind. 211; Dewey v. State, 91 Ind. 173; Baker v. Hawkins, 29 Wis. 576; Kent v. Snyder, 30 Cal. 666; Irwine v. Wood, 7 Colo. 477, 4 P. 783). Now, the language of the demurrer in this case is "that there is a defect of parties plaintiff and defendant," and this, as we have seen, is insufficient; so that the question is not raised by the demurrer, nor can the case be classed with those in which the courts have refused to proceed to the determination of a suit to enjoin the payment of a state or county warrant without the owner or holder thereof being a party to the suit. As already suggested, the record indicates that the warrant in question was issued to the defendant, and, if so, there is no defect of parties. Dorothy v. Pierce, 27 Or. 373, 41 P. 668. But, whether it was or not, the questions involved do not depend upon controverted facts for their solution, but are questions of law, which have been ably and exhaustively argued, and can be determined on this appeal without affecting the interests of the warrant holder, should he prove to be other than the defendant, except so far as the doctrine of stare decisis may apply to any future proceeding which may be instituted by him to enforce its payment. The demurrer for want of proper parties was, therefore, properly overruled; and if, by reason of the facts, the warrant holder should have been made a party to the suit, either on his own account or as a protection to the defendant, it should have been made apparent by answer, and, if necessary, the court could have stayed the proceedings until he could be brought in.

It is next contended that the information does not state facts sufficient to authorize a court of equity to interfere by injunction to restrain the payment of the warrant in question, for the reason that it does not appear that the state would be pecuniarily injured or damaged by the construction of an insane asylum in eastern Oregon, instead of at the seat of government. The question as to when and by whom a suit can be maintained to prevent the construction

of public buildings at a place other than the seat of government has been before this court several times, and it has been held that a private individual cannot do so without showing some special injury to himself ( Sherman v. Bellows, 24 Or. 553, 34 P 549), and that the same rule applies when a suit is instituted in the name of the state upon his relation ( State v. Pennoyer, 26 Or. 205, 37 P. 906, and 41 P. 1104; State v. Lord, 28 Or. 498, 43 P. 471). But these cases are not in point in the present controversy. The one first referred to was a suit instituted by a private citizen in his individual capacity, without showing any special injury to himself; and the other was a proceeding against the board of commissioners of public buildings by a private citizen, who undertook to use the name of the state without authority, and was decided on the ground that it was not brought by nor against the proper parties. But this is a suit by the state in its sovereign capacity as the guardian of the rights of the people, instituted by its executive law officer, and can, in our opinion, be maintained without showing any special injury to the state. It is enough that the public funds are about to be applied in a manner prohibited by the constitution. At common law the attorney general of England could, by information in the name of the crown, call upon the courts of justice to prevent the misapplication of funds or property raised or held for public use, and, in the absence of statutory regulations, the district attorney in this...