Strawberry Hill 4 Wheelers v. Board of Com'rs for Benton County

• Decision Date: 13 November 1979
• Parties: STRAWBERRY HILL 4 WHEELERS, a non-profit corporation, and Pacific Northwest 4- Wheel-Drive Association, a non-profit corporation, Petitioners, v. The BOARD OF COMMISSIONERS FOR the COUNTY OF BENTON, State of Oregon, Dale Schrock, Barbara Ross and Larry Callahan, Respondents. TC 33160; CA 11086; SC 26015.
• Court: Oregon Supreme Court

Page 769

601 P.2d 769

287 Or. 591

STRAWBERRY HILL 4 WHEELERS, a non-profit corporation, and Pacific Northwest 4- Wheel-Drive Association, a non-profit corporation, Petitioners, v. The BOARD OF COMMISSIONERS FOR the COUNTY OF BENTON, State of Oregon, Dale Schrock, Barbara Ross and Larry Callahan, Respondents.

TC 33160; CA 11086; SC 26015.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 2, 1979.

Decided Oct. 23, 1979.

Rehearing Denied Nov. 13, 1979.

Lynn H. Heusinkveld, Coos Bay, argued the cause and filed briefs for petitioners.

[287 Or. 592-A] Todd G. Brown, of McClain & Brown, Corvallis, argued the cause and filed a brief for respondents.

LINDE, Justice.

Plaintiffs' effort to challenge the vacation of a county road by means of a writ of review, ORS 34.010-34.100, once again brings to this court the recurring problem of the use of the writ for judicial review of the actions of local governments.

Defendants, the Board of Commissioners of Benton County, conducted statutory procedures under ORS 368.565-368.582 on a resolution proposing to vacate a portion of County Road No. 26460, known as Old Peak Road. Spokesmen for the complaining associations appeared at the hearing and presented testimony in opposition to the proposal. After the board nevertheless decided to vacate the stretch of road in question, plaintiffs filed a petition for a writ of review attacking the legality of the board's order in substance and procedure. The circuit court granted defendants' motion to quash the writ on the ground that road vacation procedures are legislative and not judicial or "quasi-judicial" and therefore are not reviewable by writ of review under ORS 34.040. ¹

The circuit court's order was affirmed by a divided Court of Appeals, sitting in banc. Strawberry Hill 4-Wheelers v. Benton Co. Bd. of Comm., 37 Or.App. 575, 588 P.2d 65 (1978). The majority, in an opinion by Judge Johnson, found that the county's action in vacating the road had the characteristics of legislative rather than adjudicative action. Judge Thornton's dissent for three members of the court maintained that the majority's decision departed from the established statutory scheme for the review of county decisions in road matters. Having allowed review to examine these competing positions, we conclude that notwithstanding the legislative elements in the county's decision to vacate the road, the writ of review should not have been quashed.

The sources of the problem and of our conclusion take us back to the earliest years of the state's history.

The writ of review and "county business."

The functions of county government and of the writ of review have been intertwined from the beginning. County "courts" were known in England as early as the 11th century and in the colonies during the 18th century. ² Historically, the use of the term "court" implied no distinction of adjudicative from lawmaking or executive functions, as is evident from its use to describe both the court surrounding a monarch and also a legislature like the "General Court" of Massachusetts. ³ When county government was established in the Oregon territory in 1854, the statute assigned the management of county business but no judicial powers to three county commissioners. Statutes of Oregon, An Act Relating to County Commissioners, Jan. 24, 1854. The state constitution, prepared in 1857 and effective in 1859, authorized county courts as part of the state's judicial system, to be conducted by an elected county judge. Or.Const. art. VII (orig.) §§ 1, 11-14. Section 12 authorized the Legislative Assembly to provide for the election of two county commissioners "to sit with the County Judge whilst transacting County business." The General Laws of 1859 provided for the election of a county judge who would exercise the powers of the county court. The statute was almost entirely concerned with proceedings within the court's judicial jurisdiction, except for one section that provided that the county court "shall have cognizance of all county business, and perform the same duties that the board of county commissioners of the several counties were required heretofore to perform," governed by the laws previously governing the county commissioners. Review from the county judge's decisions was by appeal to the circuit court. General Laws 1859, An Act to Organize County Courts, §§ 11, 12, 17. June 4, 1859.

The state's original Code of Civil Procedure, enacted in 1862, set forth the provisions for judicial proceedings, including the several writs, and also the powers of the county courts. General Laws 1862, §§ 572-639, 867-878. Our continuing difficulties with the method of review of county action date from these initial acts, which continue essentially unchanged while modern ideas of the "jurisdiction" of local government and its lawmaking powers have undergone substantial reconsideration. See, e. g., Nyman v. City of Eugene, 286 Or. 47, 57-58, 593 P.2d 515 (1979).

The 1862 code listed the powers of the county courts under two heads. The county court had Jurisdiction of actions at law involving claims up to $500 and Exclusive jurisdiction in actions for forcible entry and detainer and in probate matters. General Laws 1862, §§ 868, 869. ⁴ With the participation of the two nonjudicial commissioners, the county court had the "Authority and powers pertaining to county commissioners, to Transact county business." (Emphasis added.) County business was specified to include construction of county buildings, to provide offices and supplies for county officials, and to Establish, vacate or alter county roads and bridges, to grant licenses, to levy county taxes, to look after paupers, to care for county property, and to settle contract claims against the county. ⁵ Gen.Laws § 870. This list of "county business" still constitutes the first ten items of ORS 203.120. The law distinguished clearly between the county court's judicial jurisdiction and its conduct of county business. Section 876 prescribed that the court was to dispose first of its cases at law, second of its probate business (these by the county judge alone) and third of county business, with the participation of the commissioners.

The 1862 code was equally explicit on the mode of reviewing the actions of county courts. Section 875 provided that the code's provisions for appeals to the circuit court were to apply "to judgments and decrees of the county court in all cases, but not to its decisions given or made in the transaction of county business. In the latter case, the decisions of the court shall only be reviewed upon the writ of review provided by this code." Again, ORS 203.200 still continues this provision: "The decisions of the county court made in the transaction of county business shall be reviewed only upon the Writ of Review provided by the civil procedure statutes." However, the code's writ of review was provided only to review "judicial functions" or acts exceeding the "jurisdiction" of an inferior "court, officer or tribunal." Section 575 of the 1862 act, much like ORS 34.040, Supra note 1, read:

"The writ shall be allowed in all cases, where there is no appeal or other plain, speedy and adequate remedy, and where the inferior court, officer or tribunal in the exercise of judicial functions, appears to have exercised such functions erroneously, or to have exceeded it or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise."

From the distance of more than a century, the 1862 code seems self-contradictory. It restricts the writ of review to the review of decisions in the exercise of "judicial functions" and "jurisdiction." It carefully divides the functions of county courts between a judicial jurisdiction, exercised by the county judge alone, and the transaction of county business by the three-member county commission, which is not an exercise of "jurisdiction." Then the writ of review is expressly made the exclusive means to review the transaction of county business, while the judicial acts of the county court are made reviewable by appeal to the circuit court and consequently not by writ of review.

It is not surprising that this arrangement has occasionally confounded courts and counsel for a hundred years. While no resolution of the dilemma is wholly logical, it could be dealt with in one of two ways. Section 875, now ORS 203.200, could be read literally to place review of all transactions of county business under the writ of review, regardless whether they otherwise fit either the writ's "judicial function" criterion or the procedure of review on a record brought up from the county court. Judicial review of all county transactions would then be forced to fit this Procrustean bed of review upon whatever documentary record bearing on the transaction could be produced. The establishment or vacation of a county road is expressly made an item of county business, as stated above. Alternatively, the section could be read to apply the writ of review only to such "decisions" of a county court as might be described as "judicial functions" or the exercise of "jurisdiction," though occurring in the transaction of county business rather than in the judicial work of the county court.

Review of county road decisions.

This court early adopted the second approach, on the characteristic premise that the statutes were intended only to codify the reach of the preceding writ of certiorari in similar matters. ORS 34.010 itself states that "(t)he writ heretofore known as the writ of certiorari is known in these statutes as the writ of review." Courts of the period also saw nothing strange in regarding the location of roads as the exercise of the county court's "jurisdiction," in part because it involved taking privately owned land and assessing benefits and damages to the landowners concerned. See, e. g., Elliott & Elliott, Roads and Streets, 212, 218, 232 (1890). Thus in Thompson v....