State v. Malheur County Court

• Decision Date: 20 July 1909
• Citation: 54 Or. 255,103 P. 446
• Parties: STATE ex rel. HARVEY et al. v. MALHEUR COUNTY COURT et al.
• Court: Oregon Supreme Court

103 P. 446

54 Or. 255

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

Supreme Court of Oregon

July 20, 1909

On motion for rehearing. Motion denied.

For opinion on former hearing, see 101 P. 907.

King J., dissenting.

Geo. W. Hayes, for appellants.

A.M Crawford, Atty. Gen., and J.W. McCulloch, Dist. Atty., for respondents.

McBRIDE, J.

The motion for rehearing is based principally on the proposition that mandamus was the proper remedy of plaintiffs in their attempt to compel the county court of Malheur county to make an order excepting Vale from the effect of the order of prohibition made by it. As we held in our former opinion, and still hold, that the city of Vale was not exempt by the terms of its charter from the operation of the local option statute, the question whether mandamus would have been the proper remedy in case it had been so exempt is purely academic, and all that was said on that subject was dictum. We do not disagree with counsel that a board court, or person may be

compelled to do an act purely ministerial, even though the doing of it requires him to exercise some judgment in his own mind as to what is the proper and lawful method; but, when he is called upon to declare the law, and to make an exception not made in the statute under whose terms he is attempting to act, he acts judicially. Plaintiffs were not asking the county court to make an order pursuant to the requirements of the local option statute, but asking that they ingraft thereon an order not contemplated therein, namely, excepting the town of Vale from its operation. Granting that the duties of the county court are purely ministerial, to what are they confined? Section 7 of the local option law (Sess.Laws 1905, p. 45) requires the clerk and sheriff, respectively, to issue and post notices of the special election, and to enter of record their compliance with this provision, and the statute provides that this record shall be prima facie evidence that all the provisions of the law have been complied with. Section 10 requires the clerk to take to his assistance two justices of the peace, and make an abstract of the vote for the information of the county court. Then on the 11th day after the election the court is required to meet and immediately make an order of prohibition, if a majority of the votes in the county as a whole are for prohibition. Clearly the court, in making its order, acts upon the return of the sheriff and the abstract furnished by the clerk. The statute does not require it to hear testimony and conduct a fishing expedition to discover whether or not the sheriff and clerk have made a false return in respect to posting the notices or making the abstract. It must act "immediately." Now the writ does not traverse the return nor the abstract. It only attempts to traverse the fact that notices were posted; and, if an amendment were permitted to the writ, so that it should show that no notices were posted, it would show no cause for mandamus proceedings against the county court. It acted upon the evidence that the law required it to act upon, and, its duties being ended, this court will not require it to again convene and to do its work over, and include therein the hearing of a contest on the facts that the local option law does not provide for. It has been suggested that, if we take this view, plaintiffs are left without remedy, but this does not logically follow. If, by the malfeasance of an officer, a false return was made, whereby the county court was deceived into making a false finding of fact, the writer of this opinion feels certain that the law will afford plaintiffs an ample remedy. It is the boast of our jurisprudence that there is no wrong for which the law does not afford redress, and this case is no exception to the rule.

Rehearing denied.

KING J. (dissenting).

I agree with the majority opinions in holding that the alternative writ does not state sufficient facts to entitle petitioners to the relief demanded, but for that reason only do I hold that the remedy sought to be invoked will not lie. The effect of the majority opinions, however, is to hold that, even though sufficient facts were stated to demonstrate that the election was void, mandamus would not be the proper remedy. With this conclusion I do not agree. If at the time the proceedings were instituted the county court had not declared the vote, injunctive relief would have been available, but since there is nothing left, so far as the court is concerned, to enjoin, this remedy, it occurs to me, cannot well be invoked. In fact it is so held in McWhirter v. Brainard, 5 Or. 426. Under the holding of this court in Raper v. Dunn, 99 P. 889, and Garrison v. Richardson, 101 P. 900, review will not lie, from which it follows that, unless the remedy by mandamus is available, petitioners are without a remedy. In a very clear and well-reasoned opinion by Mr. Justice Brannon, in Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281, 36 L.R.A. 296, it is held that the inefficiency of all other remedies required that mandamus should be recognized, even though the acts involved were of a quasi judicial nature. If the rule invoked by the majority in this case is to prevail, it may become necessary to recognize a suit in equity to vacate the order of the court as the proper procedure, else make an exception to the well-established principle suggested by Mr. Justice McBride that "there is no wrong for which the law does not afford a...