State ex rel. Public Welfare Commission v. Malheur County Court

• Decision Date: 04 March 1949
• Citation: 203 P.2d 305,185 Or. 392
• Parties: STATE ex rel. PUBLIC WELFARE COMMISSION v. COUNTY COURT OF MALHEUR COUNTY.
• Court: Oregon Supreme Court

203 P.2d 305

185 Or. 392

STATE ex rel. PUBLIC WELFARE COMMISSION v. COUNTY COURT OF MALHEUR COUNTY.

Supreme Court of Oregon

March 4, 1949

Original proceeding in mandamus by the State of Oregon upon relation of State Public Welfare Commission, composed of J. H. Luihn and others, against County Court of Malheur County, Oregon composed of Irwin Troxell and others, commissioners, to compel the county court to budget and set aside for contribution by county to the state welfare program for the fiscal year beginning July 1, 1948, and ending June 30, 1949 certain sums of money and to draw warrants in favor of the state public welfare commission in compliance with Oregon laws, 1947, c. 545.

Peremptory writ issued.

Rex Kimmell, Deputy Atty. Gen. (George Neuner, Atty Gen., on the brief), for petitioner.

Charles W. Swan, Dist. Atty., of Vale, for Malheur County.

Robert D. Lytle, of Vale, for defendant.

Before LUSK, C.J., and BRAND, BELT, ROSSMAN, KELLY and BAILEY, JJ.

BRAND, Justice.

A petition for an alternative writ of mandamus was originally filed by the State Public Welfare Commission, but by order of this court the petition was so amended as to make the State of Oregon the petitioning party. It sues upon the relation of the Commission. An alternative writ issued upon the amended petition. We quote:

'Whereas it manifestly appears to us by the verified petition of the relator herein:

'I

'That J. H. Luihn, Hugh G. Ball, Dr. Louis P. Gambee, Mrs. Thomas Honeyman, Bardee G. Skulason, H. H. Lake and Mrs. Lee Patterson are the duly appointed, qualified and acting members of the State Public Welfare Commission, and that J. H. Luihn is the duly elected chairman thereof. That this proceeding is initiated by the State Public Welfare Commission for the purpose of compelling local compliance by Malheur County with the federal and state laws applicable to the administration of a public assistance program in Oregon, and pursuant to the provisions of section 126-103, O.C.L.A., as amended by section 6, chapter 545, Oregon Laws 1947.

'II

'That Irwin Troxell is the county judge, and A. P. Goodell and John L. Caldwell, Jr., are commissioners, and such three persons constitute the County Court of Malheur County. As such county court the defendant has the general care and management of Malheur County funds and business and is required to estimate and determine the amount of revenue for county purposes, and to levy taxes required by law in the uniform administration of the public welfare program of this state; such duties are imposed by section 93-302, O.C.L.A., as amended by section, 1, chapter 399, Oregon Laws 1945.

'III

'That for the purpose of securing grants of federal money to assist in providing public assistance, the state of Oregon has submitted to the proper federal agency under the provisions of chapter 7, Title 42 U.S.C.A., and had approved, a state program for the administration of public assistance, and as a result the state is receiving federal grants for old-age assistance, aid to the needy blind, and aid to dependent children.

'IV

'Under the provisions of section 126-110, O.C.L.A., as amended by section, 5, chapter 545, Oregon Laws 1947, and exclusive of sums of money granted or contributed by the government of the United States, as alleged in paragraph III of this writ, Malheur County is required to contribute 30 per cent of all sums required to be expended in such county for general assistance, old-age assistance, blind assistance and aid to dependent children.

'V

'On February 9, 1948, the county public welfare commission of Malheur, County transmitted its findings to relator, in which it estimated the sum of $39,879.60 to be the amount required as the contribution of Malheur County for the administration of the public welfare program therein during the fiscal year beginning July 1, 1948, and ending June 30, 1949. Pursuant to the provisions of section 2, chapter 545, Oregon Laws 1947, relator reviewed the findings and estimate so transmitted to it, and after investigation of the facts, made a determination on the basis prescribed in such provision of law that the contribution of Malheur County for the administration of the public welfare program therein during such fiscal year be $43,901.00; the findings of the Malheur County public welfare commission were revised accordingly, and as so revised and approved such findings were certified to the defendant herein on March 26, 1948.

'VI

'The defendant, County Court of Malheur County, has refused and does still refuse to include in its budget for the fiscal year 1948-1949 the amount so found and certified to it by relator.

'VII

'The defendant has notified relator that it will not levy a tax for or otherwise provide and contribute to the public assistance program in Malheur County for the year 1948-1949 any sum other than the sum of $39,879.60, and it will not issue its warrants in favor of the State Public Welfare Commission for one-quarter of the amount found and certified by relator as being required from that county on or before the first day of each calendar quarter of the ensuing fiscal year or otherwise, and will not so issue its warrants in any amount greater than one-quarter of the sum of $39.879.60.

'VIII

'Malheur County's required contribution to the cost of administration of the public welfare program therein is in the sum of $10,975.25, to be paid on or before the first days of July and October, 1948, and January and April, 1949; such County refuses to contribute such amounts and has officially notified relator that it will contribute no amount in excess of $9,969.90 on said dates or otherwise.

'IX

'Relator has no plain, speedy or adequate remedy at law.

'Now, Therefore, we do command you to budget and set aside for contribution by Malheur County to the state welfare program for the fiscal year beginning July 1, 1948, and ending June 30, 1949, the total sum of $43,901.00, and we do further command you that you draw warrants of Malheur County in favor of the State Public Welfare Commission on or before the first day of each calendar quarter of said fiscal year in the amount of one-fourth of such total sum or $10,975.25, or that you show cause before this Court on the 29th day of October, 1948, at the hour of 11 A. M., why you have not done so, and that you then and there return this writ, with your certificate annexed thereto, of having done as hereby commanded, or showing the cause of your omission thereof.'

To the amended writ the respondent county court demurred upon the following grounds:

'I On the ground that plaintiff has no legal capacity to sue.

'II On the ground that the Writ fails to state a cause against the defendant for the following reasons:

'a. Chapter 545 Oregon Laws 1947 upon which plaintiff relies contravenes Section 32, Article I; Section 1, Article III and Section 1, Article IV of the Constitution of Oregon on te ground that said action attempts to delegate to an appointive administrative commission the legislative power of (1) Directing the levy of a tax; (2) determining the amount of tax to be imposed; and (3) determining the rate of millage.

'b. Said Chapter 545 upon which plaintiff relies contravenes Section 32, Article I of the Constitution of Oregon in that it delegates to an appointive administrative commission the power to exercise the discretionary function of determining the amount and rate of taxation to be levied, now exercised under constitutional sanction by County Courts or Boards of County Commissioners.

'c. Said Chapter 545 delegates to such appointive administrative commission the power to legislate by deducting items from or adding items to the budget (within the statutory limits) thereby changing the amount and rate of the tax without guide or direction from the Legislature.

'd. Chapter 545 Oregon Laws upon which plaintiff relies contravenes Section 32, Article I and Section 1, Article IX of the Constitution of Oregon in that it provides for a state tax which is not uniform throughout the state, and permits a different rate of taxation in each of the several counties of the state; the amount of expenditure authorized by said appointive commission is the measure of the amount of the tax and the rate of taxation in each of the several counties of the state.

'e. Said Chapter 545 contravenes Subdivision 10, Section 23 of Article IV of the Constitution of Oregon for the reason that it is special or local in character in that it provides or permits a different rate of taxation in each of the several counties of the state.

'f. Said Chapter 545 is void because of uncertainty in that by reading the Act in its entirety the amount of the tax or the rate of taxation cannot be determined, and for the further reason that the several provisions of the Act are so contradictory that all of the provisions of the same cannot be made operative and the intent of the Legislature cannot be determined.

'g. Said Chapter 545 contravenes Section 1, Article IV of the Constitution of Oregon, in that it requires the appointive administrative commission to legislate and to enact and adopt rules and regulations which constitute the basis for determining the amount of the tax to be imposed and the amount and the rate of taxation in the several counties.

'h. For the reason that the Writ does not show a present existing right in the plaintiff, or in any other, to sue in mandamus or in any other form, in that Sections 2 and 5 of said Chapter 545 provides the exclusive remedy for underpayment of the defendant's proportionate contribution to the State Public Welfare Commission, which Act and which sections require that the deficiency be added to the budget of the next or second fiscal year, and that...