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§ 357. Judgment by Collusion Not a Bar.

A recovery of a judgment for a penalty or forfeiture by collusion between the plaintiff and defendant, with intent to save the defendant, wholly or partially, from the consequences contemplated by law, in case where the penalty or forfeiture is given wholly or partly to the person who prosecutes, shall not bar the recovery of the same by another person. [L. 1862 ; D. Cd. § 344; H. C. § 347.]

§ 358. Disposition of Fines and Forfeitures.

Fines and forfeitures not specially granted or otherwise appropriated by law, when recovered, shall be paid into the treasury of the proper county. Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the state, or to any officer for its use, the action for the recovery of such property may be commenced in any county where the defendant may be found, or where such property may bè. [L. 1862; D. Cd. § 345; H. C. § 348.]

Where, after appeal from a judgment rendered on an undertaking of bail in a criminal action, and pending its determination, property of a surety was sold to satisfy such judgment, and the money paid to the

county, and the judgment was subsequently reversed, the county is liable for the restitution of the money so collected: Metschan v. Grant County,, 36 Or. 117, 58 Pac. 526.

CHAPTER IV.

OF ACTIONS BY AND AGAINST PUBLIC CORPORATIONS AND OFFICERS.

§ 359. Actions by Public Corporations, Maintained in What Cases.

An action at law may be maintained by any county, incorporated town, school district, or other public corporation of like character in this state, in its corporate name, and upon a cause of action accruing to it in its corporate character, and not otherwise, in either of the following cases :

1. Upon a contract made with such public corporation;

2. Upon a liability prescribed by law in favor of such public corporation; 3. To recover a penalty or forfeiture given to such public corporation; 4. To recover damages for an injury to the corporate rights or property of such public corporation. [L. 1862; D. Cd. § 346; H. C. § 249.]

Money claimed by and paid to a county officer, under a claim of right for his services as such, if he is not entitled thereto, may be recovered back by the county. This action would be authorized by subd. 1 of this section, for, if an officer receives money under such circumstances, there would be an implied contract raised by the law in favor of the county and against the officer: Grant County v. Sels, 5 Ör. 247.

Where the legislature passed an act tak

ing a part of the territory from one county and adding it to another, and providing that the treasurer of the first county should pay the treasurer of the second county a ratable proportion of the indebtedness of the first county, such obligation may be enforced by action, being authorized by subd. 2 of this section, and is not prevented by the following section: Grant County v. Lake County, 17 Or. 456, 21 Pac. 447.

$ 360. Actiors Against Public Corporations, for What Injuries.

An action may be maintained against any of the organized counties of

this state upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise; and an action may be maintained against any of the other public corporations in this state mentioned in section 359, in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such other public corporation. [L. 1862; D. Cd. § 347; L. 1887, p. 45; H. C. § 350.]

See § 4781, post, authorizing actions against counties for damages sustained in consequence of defective and dangerous county roads and bridges.

County as party, see § 913, post.

Before the amendment of this section in 1887, it was held that a county or municipal corporation was liable for injury to a person traveling on the public highway, by reason of the negligence of the road supervisor in not repairing: McCalla v. Multnomah County, 3 Or. 424; Sheridan v. Salem, 14 Or. 334, 12 Pac. 925; Ford v. Umatilla County, 15 Or. 318. 16 Pac. 33; but this liability might be shifted by express provision in a municipal charter: Rankin v. Buckman, 9 Or. 258. Since the amendment, however, no such right of action exists. Such amendment was constitutional: Templeton v. Linn County, 22 Or. 315, 29 Pac. 795; but this amendment would not take away the remedy of one injured before the passage of the amendment, though he does not recover judgment until afterwards: Eastman v. Clackamas County, 32 Fed. 32. See note to Art. I, § 10, Oregon Constitution. By § 4781, post, an express right of action is given to persons injured by defect in a highway. This law is construed in McFerren v. Umatilla County, 27 Or. 311, 40 Pac. 1013, and Gardner v. Wasco County, 37 Or. 392, 61 Pac. 834.

An action can not be maintained against a county upon a claim for services, where the compensation is not fixed by law, and the county court has allowed an amount less than that claimed. Where a county deals with a person in its corporate capacity, it may be sued the same as a natural person; but where the sovereign power of the state is exercised through a county organization, a claim for compensation arising from discharge of duty in such a case must be adjusted in the mode pointed out by law: Pruden v. Grant County. 12 Or. 309, 7 Pac. 308; but where the compensation has been fixed by law, a person may sue therefor, upon refusal of the county court to pay the same: Crossen v. Wasco County, 8 Or. 113.

Notwithstanding the fact that this section limits the causes upon which a county may be sued to those arising upon contract, one county may sue another for a proportional

§ 361. How Pleadings Verified.

part of such other's debt, where the legislature has transferred a portion of the territory of the second county to that of the first, and determined the amount to be paid: Grant County v. Lake County, 17 Or. 458, 21 Pac. 447.

In the absence of legislative provision to the contrary, however, when a new county is created out of a part of an old one, the old county takes all the county property, and becomes liable for the whole of the county indebtedness. In such case the old county may be compelled to pay the whole of the state levy of taxes charged upon the county at the time the division took place: Gilliam County v. Wasco County, 14 Or. 525, 13 Pac. 324.

The authority to maintain an action against a county on an obligation created by law is not derived from this section, but exists independently of it; and this section must be construed in connection with the section which subjects a county to a suit or action on account of any matter arising out of its corporate obligations, whether created by contract or otherwise: State v. Baker County, 24 Or. 141, 33 Pac. 530; Grant County v. Lake County, 17 Or. 453, 21 Pac. 447; Metschan v. Grant County, 36 Or. 120, 58 Pac. 80.

The liability of a county for its proportion of the state tax is a "corporate obligation" for which it may be sued: State v. Baker County. 24 Or. 143, 33 Pac. 530; Multnomah County v. State, 1 Or. 359. Ordinary city warrants are only prima facie evidence of municipal indebtedness, and do not constitute a final adjudication against the city of the claims which they represent. A holder of such a warrant may sue thereon, and reduce his claim to a judgment: Goldsmith v. Baker City, 31 Or. 251, 49 Pac. 973.

A county may be sued to recover back the amount of a bail bond unlawfully collected: Metschan v. Grant County, 36 Or. 120, 58 Pac. 80.

A city engaged in the legal duty of repairing its fire alarm system through private and corporate agencies is acting in its corporate capacity in the performance of ministerial acts, and is liable for injuries received by a workman therein: Wagner v. Portland, 40 Or. - 67 Pac. 300.

In such actions the pleadings of the public corporation shall be verified. by any of the officers representing it in its corporate capacity, in the same. manner as if such officer was a defendant in the action, or by the agent or attorney thereof, as in ordinary actions. [L. 1862; D. Cd. § 348; H. C. § 351.]

§ 362. How Judgment Satisfied.

If judgment be given for the recovery of money or damages against a

county or other public corporation, mentioned or described in section 359, no execution shall issue thereon for the collection of such money or damages, but such judgment in such respect shall be satisfied as follows:

1. The party in whose favor such judgment is given may, at any time thereafter, when an execution might issue on a like judgment against a private person, present a certified transcript of the docket thereof, to the officer of such county or other public corporation who is authorized to draw orders on the treasurer thereof;

2. On the presentation of such transcript, such officer shall draw an order on such treasurer for the amount of the judgment, in favor of the party for whom the same was given. Thereafter, such order shall be presented for payment, and paid, with like effect and in like manner as other orders upon the treasurer of such county or other public corporation;

3. The certified transcript herein provided for shall not be furnished by the clerk, unless at the time an execution might issue on such judgment if the same were against a private person, nor until satisfaction of the judgment in respect to such money or damages be acknowledged as in ordinary cases. The clerk shall include in the transcript a memorandum of such acknowledgment of satisfaction and the entry thereof. Unless the transcript contain such a memorandum, no order upon the treasurer shall issue thereon. [L. 1862 ; D. Cd. § 349 ; H. C. § 352.]

No execution against a city may issue on a judgment on a city warrant; this, however, does not prevent the holder of the warrant from reducing his claim to a judgment, nor restrict his remedy to mandamus: Goldsmith v. Baker City, 31 Or. 251, 49 Pac. 973.

An ordinance which provides that where public improvements have been accepted by the proper authorities, a material man may file his claim with the city auditor within a certain time, and the auditor shall

§ 363.

withhold the amount until the claim is adjusted, does not subject the city to garnishment: Hamilton v. Gambell, 31 Or. 335, 48 Pac. 433.

This section refers to the manner of enforcing a judgment, and not to the form of the journal entry thereof. Hence, a personal judgment is properly entered against the sureties who signed an appeal bond for a city as provided by § 558: Brauer v. Portland, 35 Or. 482, 60 Pac. 379.

Actions By and Against Public Officers, When Maintained.

An action at law may be maintained by and against any public officer in this state in his official character, when, as to such cause of action, such cfficer does not represent any of the public corporations mentioned or described in section 359, for any of the causes specified in such section and section 301. If judgment be given against any such officer in such action, it may be enforced against him personally, and the amount thereof shall be allowed to him in his official accounts. [L. 1862; D. Cd. § 350; H. C. § 353.]

CHAPTER V.

OF ACTIONS TO AVOID CHARTERS, LETTERS PATENT, AND TO PREVENT THE USURPATION OF AN OFFICE OR FRANCHISE, AND

DETERMINE THE RIGHT THERETO.

§ 364. Scire Facias and Quo Warranto Abolished.

The writ of scire facias, the writ of quo warranto, and proceedings by

information in the nature of quo warranto are abolished, and the remedies heretofore obtainable under those forms may be obtained by action at law in the mode prescribed in this chapter. [L. 1862; D. Cd. § 351; H .C. § 354.]

QUO WARRANTO AND SCIRE FACIAS.-It is only the form of the remedy that is done away with by this section; the remedy stands in full virtue as before: State v. Douglas County Road Co. 10 Or. 199; Wilson v. Shively, 10 Or. 273.

§ 365. Actions Against Corporations Begun on Direction of Governor.

An action at law may be maintained in the name of the state, whenever the governor thereof shall so direct, against a corporation either public or private, for the purpose of avoiding the act of incorporation, or the act renewing or modifying its corporate existence, on the ground that such act or either of them was procured upon some fraudulent suggestion or concealment of a material fact by the persons incorporated, or some of them, or with their knowledge and consent; or for annulling the existence of such corporation, when the same has been formed under any general law of this state therefor, on the ground that such incorporation, or any renewal or modification thereof, was procured in like manner. [L. 1862; D. Cd. § 352; H. C. § 355.]

§ 366. When Action May be Maintained to Annul Existence of Corporation.

An action at law may be maintained in the name of the state against a corporation, other than a public one, on leave granted by the court or judge thereof where the action is triable, for the purpose of avoiding the charter or annulling the existence of such corporation, whenever it shall,—

1. Offend against any of the provisions of the acts, or either of them, creating, renewing, or modifying such corporation, or the provisions of any general law under which it became incorporated; or,

2. Violate the provisions of any law, by which such corporation forfeits its charter, by abuse of its powers; or,

3. Whenever it has forfeited its privileges or franchises, by failure to exercise its powers; or,

4. Whenever it has done or omitted any act which amounts to a surrender of its corporate rights, privileges, and franchises; or,

5. Whenever it exercises a franchise or privilege not conferred upon. it by law. [L. 1862; D. Cd. § 353; H. C. § 356.]

This section requires the district attorney to obtain leave to sue and an order refusing leave is not one from which an appeal will lie: State v. Oregon Cent. R. Co. 2 Or. 255; but when leave has been granted the discretionary power of the court has been expended, and the district attorney has full control of the proceedings: State v. Douglas County Road Co. 10 Or. 201. Nor can the

relator be a party to such action, and if his name appear it is mere surplusage: State v. Douglas County Road Co. supra. The state may waive the forfeiture of the charter, and its power to do so, acting through its attorney, can not be controlled by the court: State v. Douglas County Road Co. supra.

§ 367. Action for Usurpation of Office or Franchise.

An action at law may be maintained in the name of the state, upon the information of the prosecuting attorney, or upon the relation of a private party against the person offending, in the following cases:—

1. When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or,

2. When any public officer, civil or military, has done or suffered an act which, by the provisions of law, makes a forfeiture of his office; or,

3. When any association or number of persons act within this state, as a corporation, without being duly incorporated. [L. 1862; D. Cd. § 354; H. C. § 357.]

ACTION FOR USURPATION OF OFFICE OR FRANCHISE.-This section vests in each district attorney a discretion whether he will institute a prosecution to try the title to an office, and mandamus will not lie to control such discretion: Everding v. McGinn, 23 Or. 15, 25 Pac. 178.

It is the proper method to try the right to office where a policeman has been removed or suspended by the mayor and common council upon insufficient cause, and another appointed in his place: Selby v. City of Portland, 14 Or. 243, 12 Pac. 377, 58 Am. Rep. 307.

"

The jurisdiction vested in a board of trustees of a municipality to "judge of the qualifications and election of their own members,' does not oust the jurisdiction of a court to try the question of usurpation of such offices: State v. McKinnon, 8 Or. 493; Robertson v. Groves, 4 Or. 214.

A district attorney is not to be deprived of his office because he does not qualify within the time prescribed by statute, such statute being merely directory: State v. Colvig, 15 Or. 57, 13 Pac. 639.

The title to an office can not be tried in a mandamus proceeding. Mandamus is the proper method, however, for one who holds a certificate of election, and has qualified, to obtain the insignia of office: Stevens v. Carter, 27 Or. 553, 40 Pac. 1074.

PLEADINGS.-In a proceeding to remove an officer for promises to reward a voter, the complaint is insufficient unless it appears that the promise if performed would inure to the benefit of the voter: State v. Church, 5 Or. 375, 20 Am. Rep. 746.

A complaint in an action to oust a person from an office the right to which de

pends upon the constitutionality of a statute, need not set out the statute nor allege its constitutionality, as the court will take judicial knowledge of its existence and provisions; and a general allegation that the defendant unlawfully intrudes into and usurps the office is sufficient to call upon him to disclose his title: State ex rel. v. Stevens, 29 Or. 471, 44 Pac. 898.

This statute is sufficiently complied with where the complaint in an action by the state, on relation of a private person, is signed by the prosecuting attorney in his official capacity. The ruling in State ex rel. v. Lord, 28 Or. 498, 43 Pac. 471, has no application to an action at law under this statute: State ex rel. v. Stevens, 29 Or. 472, 44 Pac. 898.

The words to "commence and prosecute.” have a larger significance than merely the common sense of the bringing of the action by a private party who may become associated with the state in the prosecution of the intruder. The prosecuting attorney must himself set in motion and be responsible for its conduct and prosecution. A complaint, therefore, by the state on the relation of a contestant to determine a title to office, which was verified by the relator and signed by his attorney, but before the trial was held the district attorney had his appearance noted on the record, showing that the prosecution was being carried on with his express consent and approval, is not sufficient; it must either be signed by the state's attorney, or contain appropriate allegations that the action was commenced and prosecuted by him: State ex rel. v. Cook, 39 Or. 3.7, 65 Pac. 89.

§ 368. Action to Annul Letters Patent, May be Maintained in what Cases. An action at law may be maintained in the name of the state for the purpose of vacating or annulling letters patent issued by the state against the person to whom the same were issued, or those claiming under him, as to the subject-matter thereof, in the following cases:

1. When such letters patent were issued by means of some fraudulent suggestion or concealment of a material fact by the person to whom the same were issued, or with his knowledge and consent; or,

2. When such letters patent were issued through mistake or in ignorance of a material fact; or,

3. When the patentee or those claiming under him have done or omitted an act in violation of the terms and condition on which the letters patent were issued, or have by any other means forfeited the interest acquired under the same. [L. 1862; D. Cd. § 355; H. C. § 358.]

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