State ex rel. West v. Kay

• Decision Date: 12 January 1915
• Citation: 74 Or. 268,145 P. 277
• Parties: STATE EX REL. WEST, GOVERNOR, ET AL. v. KAY, STATE TREASURER.
• Court: Oregon Supreme Court

145 P. 277

74 Or. 268

STATE EX REL. WEST, GOVERNOR, ET AL. v. KAY, STATE TREASURER.

Supreme Court of Oregon

January 12, 1915

In Banc.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Mandamus by the State, on the relation of Oswald West, Governor, and another, against T. B. Kay, State Treasurer. Peremptory writ issued, and defendant appeals. Reversed, and writ dismissed.

This is a proceeding in mandamus to compel the defendant, T. B. Kay State Treasurer, to surrender to the clerk of the state land board the notes and mortgages taken by the board upon loans of the common or irreducible school fund, University fund and Agricultural College fund of the state, aggregating $5,992,758.71, and the records, books, and papers used in connection therewith. The circuit court granted a peremptory writ of mandamus as petitioned for, and the defendant appeals.

The action is brought upon the relation of Oswald West, Governor and Ben W. Olcott, Secretary of State. The alternative writ shows, in substance, that the relators are the Governor and Secretary of State, respectively, of the state of Oregon, and are citizens and taxpayers thereof; that the defendant is the State Treasurer, and that the relators and the defendant comprise the state land board, of which G. G. Brown is clerk that the state land board has loaned from the common or irreducible school fund, University fund, and Agricultural College fund of the state, in various amounts, the total sum of $5,992,758.71, which loans are evidenced by the promissory notes of the respective borrowers, aggregating approximately 8,000 in number, payable to said board, and are secured by mortgages on Oregon real estate; that said notes are not due that at a regular meeting of the board held at the capitol November 13, 1913, the board directed the defendant to deliver the notes and mortgages, and all records, books, and papers used in connection therewith and belonging to the board, to G. G. Brown, clerk; that on that date, and at all times since, defendant has had said notes, mortgages, records, books, and papers in his possession in Marion county, Or.; that said clerk, acting for himself and on behalf of the board, made due demand of the defendant for possession of the above-mentioned instruments and papers, and is entitled to the immediate possession thereof, but that the defendant refused to comply with such demand.

The defendant first moved to dismiss the writ for the reasons: (1) That the same shows on its face that the state of Oregon has no interest in the result; (2) that the writ fails to show that the relators have any right to prosecute the action in the name of the state of Oregon. The motion being overruled, the defendant demurred upon the grounds: (1) That the plaintiff has no legal capacity to sue; (2) that there is a defect of the parties plaintiff; (3) that the complaint does not state facts sufficient to constitute a cause of action; and (4) that the court has no jurisdiction of the subject-matter. The trial court overruled the demurrer. The defendant answered, admitting, in effect, the material allegations contained in the alternative writ, and alleging that the defendant has the possession of the notes, mortgages, and records, as such treasurer and member of the state land board in his official capacity only, in the performance of his duties as required by law. The defendant further alleges that for more than 30 years last past the respective State Treasurers of the state have had the actual possession of the notes and securities mentioned in the writ, and that such has become and is the actual custom of the administration, care, and possession of the same; that the Treasurer holds them subject to the order of the state land board in relation to loaning the moneys, collecting the interest on the notes, paying out all moneys and interest received on the notes and securities and loaning the principal sum as directed by the board; that the various Legislatures of the state during the last 30 years, and prior thereto, have appropriated money at different times for the purpose of employing additional help in the State Treasurer's office to collect interest on the securities; that it would entail an expense of about $2,000 to change the custom and make the proposed transfer; that the State Treasurer is under $350,000 bonds to protect the state against loss of any such funds, interest, or securities.

A. M. Crawford, Atty. Gen., and James W. Crawford, Asst. Atty. Gen., for appellant. E. R. Ringo, Dist. Atty., and I. H. Van Winkle, both of Salem, for respondents.

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

The first point made by the defendant is that the alternative writ of mandamus shows on its face that the state of Oregon has no interest in the result of this action, and that the relators have no right to prosecute the action in the name of the state. At a meeting of the state land board on November 13, 1913, two of the relators, being a majority of the members of the state land board, passed an order directing that the Treasurer deliver to G. G. Brown, clerk of the board, the securities mentioned. It was unanimously instructed by the board that the district attorney bring proceedings to enforce the order. Pursuant to this request, the district attorney for Marion county instituted these proceedings. The petition, however, is not signed by him in his official capacity. This, however, we consider as an informality which was waived, in view of the fact that defendant answered to the merits. Section 72, L. O. L.; State v. Chadwick, 10 Or. 423; Rutenic v. Hamakar, 40 Or. 444, 454, 67 P. 196. This leaves the question as to the sufficiency of facts to constitute a cause of action and the jurisdiction of the court. Whether the law directs the action sought by the writ is the real question. It must be conceded that this is a public matter; that the state is vitally interested in the proper and legal transaction of all the business relating to the irreducible school fund and other funds referred to which are held by the state for a most beneficent purpose, and which should be sacredly guarded and cared for. In order that no danger of loss or impairment of said funds should be suffered to exist, no legal questions arising in regard thereto should be lightly brushed aside.

Section 614, L. O. L., provides that the writ should be allowed upon petition of the party beneficially interested. See State ex rel. v. Ware, 13 Or. 380, 383, 10 P. 885; State ex rel. v. Grace, 20 Or. 154, 157, 25 P. 382, 383; State ex rel. v. Lord, 28 Or. 498, 43 P. 471, 31 L. R. A. 473; High on Ex. Remedies (3d Ed.) § 431. In State v. Grace, supra, it was remarked by this court:

"While the authorities indicate some diversity of judicial opinion upon the question whether private persons can sue out the writ to enforce the performance of a public duty, unless its neglect entails some special injury or affects some particular interest, the decided preponderance of American authority, Mr. Justice Miller thinks, is 'in favor of the doctrine that a private person may move for a mandamus to enforce a public duty not due to the government as such without the intervention of the government law officers.' * * * Hence, as the question at bar is one of public right, and the object of the mandamus is to enforce the performance of a public duty, the people being regarded as the real parties in interest, it is not necessary that the relators should show any special interest or particular right to be affected by the result."

In the case under consideration all the people of the state, in their collective capacity, constitute the real party in interest. The relators and the defendant are officers of the state, and in the inception of the controversy all apparently sought the aid of the court. It therefore becomes our duty to search the law to ascertain, if we can, who is the legal custodian of the securities named.

The first stone in the legal structure which it becomes necessary to examine is article 8, § 5, of the Constitution of the state, which provides that the powers and duties of the board of commissioners for the sale of school and University lands and the investment of the funds arising therefrom shall be such as prescribed by law. Section 3882, L. O. L., enacts in part that "the Governor, Secretary of State, and State Treasurer...