State ex rel. Taylor v. Lord

• Decision Date: 27 January 1896
• Citation: 43 P. 471,28 Or. 498
• Parties: STATE ex rel. TAYLOR v. LORD et al. [1]
• Court: Oregon Supreme Court

43 P. 471

28 Or. 498

STATE ex rel. TAYLOR v. LORD et al. ^[1]

Supreme Court of Oregon

January 27, 1896

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

Suit by the state of Oregon, upon the relation of A.C. Taylor, to enjoin William P. Lord and others, constituting the board of commissioners of public buildings, from executing the provisions of an act relative to the location and erection of a branch insane asylum. There was a judgment for plaintiff and defendants appeal. Reversed.

This is a suit to enjoin the defendants, William P. Lord, H.R Kincaid, and Phil Metschan, in their capacity as a state board of commissioners of public buildings, from carrying into effect certain acts of the legislative assembly providing for the construction of a branch asylum in the eastern portion of the state, and appropriating money therefor, because of the alleged unconstitutionality of the portions thereof locating such asylum in eastern Oregon. The amended complaint, omitting the caption and formal parts, is as follows:

"That the relator herein, in connection with other citizens of the state of Oregon, is a resident taxpayer within said state, and owns property within said state subject to taxation therein. That the defendants, Wm. P. Lord, H.R Kincaid, and Phil Metschan, are, in the order in which their names appear in this amended complaint, the governor secretary of state, and state treasurer of the state of Oregon, and as such constitute the board of commissioners of public buildings for said state of Oregon, and as such board are bound to expend large sums of the moneys of plaintiff, to be raised by taxation, for the purposes hereinafter more fully stated, which expenditures the plaintiff alleges are unlawful, and repugnant to the organic law of the state of Oregon, namely: The said board by virtue of the powers vested in them as such board, are about to expend large sums of money belonging to the plaintiff in the purchase of lands at some point east of the Cascade mountains for the purpose of constructing what is alleged to be a branch asylum in the eastern portion of said state, as one of the public institutions of the state, which said acts of the defendants aforesaid they claim to exercise under and by virtue of a so-called act of the legislative assembly of the said state purporting to have been passed by said legislature at the 17th biennial session thereof, which said act was filed in the office of the secretary of state on the 21st day of February, 1893. That, of the aforesaid moneys of the plaintiff, said defendants propose to, and, unless restrained by this honorable court, will, expend of the moneys of the plaintiff then claimed to have been appropriated, and also subsequently appropriated by the 18th biennial session of said legislature, the sum of $165,000, in the construction of said buildings, and fitting the same for use, and for lands on which to erect said buildings. That the said defendants, as such board, threaten to, and are about to, appoint three citizens of the state of Oregon, to be known as supervisors of the work of constructing such buildings, in some of the counties east of the Cascade mountains, more than three hundred miles from the seat of the government of said state, which said alleged supervisors are to have charge of the work of constructing such buildings on lands to be purchased and paid for by them of the moneys of the plaintiff, and threaten to, and are about to, direct said supervisors to expend large sums of money belonging to the plaintiff aforesaid in advertising for plans and specifications for such buildings, and are about to proceed to construct, in pursuance of said so-called act of said legislature aforesaid, a branch insane asylum and a public institution, together with outbuildings, excavations, and appurtenances thereto which, in the judgment of said alleged supervisors, may be necessary, under the direction and supervisory control of the defendants hereinbefore named, and are about to expend, of moneys of the plaintiff aforesaid, the sum of $1,500, to the said so-called supervisors, for their alleged services in the construction of said work. That the said defendants, as such board, propose to, and, unless restrained, will, if said buildings are permitted to be constructed and erected, employ a superintendent to conduct said institution, at a salary of $2,500 per annum, and assistant physicians and attendants, all to be allowed the same compensation now fixed by law for like officers and attendants at the state insane asylum at Salem. That the said proposed expenditures of the plaintiff's moneys aforesaid, if permitted, would be contrary to law and the constitution of the state of Oregon, in that the said institution is not being constructed at the seat of government of the said state, but more than three hundred miles therefrom; that the expenditures extend to the equipping, furnishing, officering, and maintaining the same, and will greatly increase the burden of taxation, and require the expenditure of $100,000 more than would be necessary to expend in the construction of like buildings at the seat of government. And the plaintiff further alleges: That the annual cost of maintaining the same after it is equipped and ready for use will be $50,000 per annum more than would be necessary to be expended in maintaining like services for the unfortunate insane of said state, if the same facilities are provided therefor in connection with the institution now in operation at the seat of government. That, unless restrained by this honorable court, the defendants will purchase and pay for the lands aforesaid; contract therefor, and build and pay for said building; appoint the supervisors, and employ superintendents, physicians, and attendants, upon salaries as aforesaid,--all to be paid out of the public funds of the state of Oregon, raised by taxation, thereby greatly increasing plaintiff's burden of taxation, to the great and irreparable injury of plaintiff. That plaintiff has no plain, speedy, or adequate remedy at law for the redress of the grievances herein complained of. Wherefore, plaintiff prays that an injunction may issue restraining the defendants, and their agents, servants, and attorneys, from using the moneys of the plaintiff for any of the purposes which they propose, as specified in the complaint, and that on final hearing said injunction be made perpetual, and for such further order or relief as may be meet with equity, and also for costs and disbursements. James McCain, District Attorney for the Third Judicial District. H.J. Bigger and W.H. Holmes, Attorneys for Plaintiff.

"State of Oregon, County of Marion--ss.: I, A.C. Taylor, being first duly sworn, say that I am the person commencing the above action as relator for and in behalf of the state of Oregon: that I have read the foregoing complaint, and know the contents thereof; that I believe said complaint to be true. A.C. Taylor.

"Subscribed and sworn to before me this 2nd day of March, 1895. Webster Holmes, Notary Public for Oregon. [ Seal.]"

The defendants demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of suit, which demurrer being overruled, the defendants answered. A trial was had upon the issues thus joined, resulting in a decree in accordance with the prayer of the complaint, from which defendants appeal.

J.C. Moreland and Wm. P. Lord, for appellants.

H.J. Bigger, for respondent.

WOLVERTON, J. (after stating the facts).

When this case was here before (37 P. 906; 41 P. 1104), we held that a private individual could not have public officers enjoined from using public funds, unless it could be shown that some civil or property rights were being invaded, or, in other words, that the individual was going to get hurt by the transaction. Upon that principle it was decided that he should be required to show that the location and building of the branch asylum in eastern Oregon would be attended with greater cost and expense than if constructed at the capital thereby increasing the burden of taxation which would be imposed upon him, with others, whose duty it is to contribute to the support of the government. It was also held that the state, suing in its corporate capacity for the protection of its property rights, stood in no different or better position in this regard than an individual. This doctrine is supported by high authority. Allen, J., in People v. Canal Board of New York, 55 N.Y. 395, says: "When the state, as plaintiff, invokes the aid of a court of equity, it is not exempt from the rules applicable to ordinary suitors; that is, it must establish a case of equitable cognizance, and a right to the peculiar relief demanded." And as is said by the same eminent jurist in People v. Ingersoll, 58 N.Y. 14: "A distinction is to be observed between actions by the people or the state, in right of the prerogative incident to sovereignty, and those founded upon some pecuniary interest or proprietary right. The latter are governed by the ordinary rules of law by which rights are determined between individuals." To the same effect is the doctrine announced in People v. Fields, Id. 514. See, also, 2 High, Inj. § 1327. So that we then concluded the plaintiff herein occupied no better or superior position, from a legal standpoint, for enforcing the remedy sought to be invoked, than the plaintiff in Sherman v. Bellows, 24 Or. 553, 34 P. 549. From this position we see no sufficient reason for receding, as we believe it to be sound in law, and supported upon reason and authority. It is insisted that the decision in White v. Commissioners, 13 Or. 317, 10 P. 484, stands in the way of this position, but we do not think so. White had a private...