Wormington v. Pierce

• Decision Date: 21 June 1892
• Citation: 30 P. 450,22 Or. 606
• Parties: WORMINGTON et al. v. PIERCE, County Clerk, et al.
• Court: Oregon Supreme Court

30 P. 450

22 Or. 606

WORMINGTON et al. v. PIERCE, County Clerk, et al.

Supreme Court of Oregon

June 21, 1892

Appeal from circuit court, Umatilla county; MORTON D. CLIFFORD Judge.

Action by W.V. Wormington and P.J. Kelley against W.M. Pierce county clerk, and W.S. Byers, to restrain the issuance of a county warrant to said Byers. Decree for plaintiff, and defendants appeal. Affirmed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

The object of this suit is to enjoin the authorities of Umatilla county from issuing to one Byers warrants of said county to the amount of $3,500, on the ground that said county was then indebted in a greater sum than is permitted by the constitution. The suit is by two taxpayers. A brief summary of the material parts of the complaint is as follows: That plaintiffs are citizens and taxpayers of Umatilla county Or., and that the defendant Pierce is the county clerk of said county. That in the fall of 1890 the defendant Byers and others constructed a bridge across Umatilla river, in the city of Pendleton, in said county, at an expense of several thousand dollars. That no part of said bridge is situated upon a county road or any other public highway except Lee street in said city, and that said bridge is wholly in said city. That the defendant Byers, while the county court of said county was sitting for the transaction of county business at the November term, 1890, presented a claim against said county for the sum of $3,500 on account of money claimed by him to have been expended in the construction of said bridge. That the 12th day of December, 1890, said county court, sitting for the transaction of county business, made an order allowing said W.S. Byers, for money alleged by him to have been expended in the construction of said bridge, the said sum of $3,500, and ordered that a warrant be drawn upon the treasurer of said county for said sum of money; a copy of which said order is hereto annexed and made a part of this complaint, and marked "Exhibit A," and made a part hereof. That said warrant has not yet been drawn by the defendant Pierce. That in auditing and allowing said claim to the said W.S. Byers the said county court exceeded its jurisdiction, and that said court had no right or authority to allow any part of said claim for the following reasons (1) That all the indebtedness hereinafter stated was created by said Umatilla county for purposes other than to suppress insurrection or repel invasion. (2) That said county of Umatilla was, when said order was allowed, to wit, on December 12, 1890, and had been for more than two years prior to said date, and is now, in debt in a sum far exceeding the sum of $50,000, and that said indebtedness of more than $50,000 was and is evidenced by orders and warrants issued by said county upon its treasurer, and that said orders have been presented to said treasurer for payment, and had not been paid because said county had and has no funds with which to pay them, and that they were indorsed by said treasurer "Not paid for want of funds:" and that said county court has made, and could make, no provision for the payment of said sum of $3,500, or any part thereof, to said defendant Byers; and that by reason of said indebtedness of said county, said county court, in allowing said sum to said Byers, violated section 10, art. 11, of the constitution of this state. (3) That when said sum was allowed to said Byers as aforesaid, and for more than a year prior thereto, there were no funds in the county treasury of said county that could be applied to the payment of the said $3,500 to said Byers. (4) That the estimated cost of said bridge far exceeded $200; but notwithstanding this fact neither the county court, nor any member thereof, in any manner advertised for sealed plans, specifications, diagrams, or for bids for the same, or for the construction of said bridge, nor was the contract for the construction of said bridge let to the lowest responsible bidder, nor was said contract let by the county court in any manner, nor was its construction in any manner superintended by the county court, or any member thereof, or any person appointed by said court, and that by reason of these facts said court had no power or right to allow any part of said sum of $3,500 to said Byers. (5) That by section 21, art. 7, of the charter of the city of Pendleton, passed in 1889, that part of Umatilla county within the limits of the city of Pendleton is expressly excepted out of the jurisdiction of the county court of said county upon the subject of roads and highways, among others, and by reason thereof said county court had no jurisdiction to make roads, highways, or bridges within said city, and said court had no authority to allow any part of said $3,500 to said Byers. That said defendant W.M. Pierce threatens to issue said warrant to said Byers for said $3,500, and that he will so issue it if he be not restrained from so doing by an order or decree of this court, and that, if said order should be so issued, it would be almost impossible to prevent its payment, and that the payment of said order would injuriously affect the pecuniary rights of these plaintiffs as taxpayers, and that they have no remedy at law herein. That Exhibit A contains the only order ever made by said court for or concerning the construction of said bridge, or the payment of anything therefor. Whereupon the plaintiff prays for a decree forever restraining the defendant Pierce, as clerk of said county, or his successor in office, from any time issuing said order or warrant to said W.S. Byers for said $3,500, or for any sum, and restraining said Byers from drawing said warrant, and for costs and disbursements.

The answer, after denying the material allegations of the complaint, alleges the following new matter by way of defense: That prior to the time of the construction of the bridge mentioned in plaintiff's complaint, the above-named W.S. Byers, by and with the consent, knowledge and approval of the county court of Umatilla county, sitting to transact county business, entered into a contract with one Dion Keif for the construction of said bridge at the agreed and stipulated price of $7,016. That said contract for the construction of said bridge was by said Byers let to the said Dion Keif for the said sum of $7,016, and that Keif...