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arising out of contract due the county, and for the sole use thereof, upon such terms as may be just and equitable. [L. 1862; D. Cd. § 870; H. C. $ 896.]

See note to Art. XI, § 10 of Oregon Con- be held: Mountain v. Multnomah County, stitution. 16 Or. 279, 18 Pac. 464.

COUNTY BUSINESS.-The county court, when exercising the authority and powers pertaining to county commissioners in the transaction of county business, is a court of inferior or limited jurisdiction, and has only such jurisdiction and can only exercise such powers as are expressly conferred or necessarily implied: Crossen v. Wasco County, 10 Or. 111; Bank of Idaho v. Malheur County, 30 Or. 426, 45 Pac. 781, 35 L. R. A. 142; or it acts as a mere fiscal or managing agent of the county, according to the nature and character of the matter under consideration: Stout v. Yamhill County, 31 Or. 319, 51 Pac. 442; Frankl v. Bailey, 31 Or. 285, 50 Pac. 186; Eastman v. Clackamas County, 32 Fed. 30.

The decisions given and made in the transaction of county business, referred to in § 920, which can only be examined by writ of review, are judicial in their nature: Crossen v. Wasco County, 10 Or. 111.

The general care and management of the county funds and business confided to the county court, under subd. 9 of this section, while it authorizes the county court as representative of the county to pay the fees of officers for services rendered for the county, and, perhaps, all just and lawful claims against the county, does not necessarily imply the authority to audit and allow claims in the judicial sense "to hear and to determine," and its refusal to pay such fees, in whole or in part, is not the exercise of judicial functions, which can only be reviewed by a writ of review: Crossen v. Wasco County, 10 Or. 111.

The county court acting in the matter of repairing bridges is acting as the agent of the county and not as a court: Stout v. Yamhill County, 31 Or. 314, 51 Pac. 442.

The issuance of warrants in compromise of claims against the county for services rendered has not the effect of a judicial decision upon the validity of the claims, and the county treasurer is bound by a subsequent order issued by such court prohibiting their payment: Frankl v. Bailey, 31 Or. 285, 50 Pac. 186.

A warrant issued by a county court, while acting as fiscal agent for the county, is only prima facie evidence of the indebtedness; it is not conclusive, but is everywhere open to all defenses available as between the original parties: Frankl v. Bailey, 31 Or. 291. 50 Pac. 186.

Where claims have been allowed against the county without authority of law, the county court may direct the treasurer not to pay them; or, if paid. the county may recover the amount: Frankl v. Bailey, 31 Or. 291, 50 Pac. 186; Union County v. Hyde, 26 Or. 24. 37 Pac. 76.

A board of county commissioners has no authority to require a sheriff to execute a new bond when a prior one shall become insufficient, and to declare the office vacant in case of a failure to file such new bond: Ruckles v. State, 1 Or. 347.

Nor has the county court authority to correct errors made by the assessor in the valuation of property: Shumway v. Baker County, 3 Or. 246.

In settling with the sheriff, under subd. 9, the county court acts merely as the fiscal agent of the county: Crossen v. Wasco County, 10 Or. 112.

It has no authority to make an order that a reward of a certain sum be offered for information leading to the conviction of persons guilty of bribery at an election to VOL. I.-28.

In Springfield Milling Co. v. Lane County, 5 Or. 265, it is held that the immediate repair of bridges called for by an emergency is left to the discretion of the county judge, and may be done by private contract; but other repairs and construction must be done by contract let to the lowest bidder, unless through the road supervisor in the special cases provided for.

This opinion is criticised in the case of Pacific Bridge Co. v. Clackamas County, 45 Fed. 220, where it is held that the statute simply required that the county court should receive bids in case of the construction, and not in case of the repair or alteration of a bridge.

The county court can not pay off or take assignments of claims against creditors of the county, so as to succeed to the rights of such creditors: Bank of Idaho v. Malheur County, 30 Or. 426, 45 Pac. 781, 35 L. R. A. 142.

The road supervisor is the agent of the county within the county, and notice to him of a defect in a bridge is notice to the county: Eastman v. Clackamas County, 32 Fed. 30.

When the county court has exercised its authority by granting a license at the suggestion of the public convenience, and a ferry is established connecting such highway or places, it has exhausted its jurisdiction as to such highways or places while such franchise exists, and can not license another ferry at substantially the same place. The primary object of our statute conferring jurisdiction upon the county courts to license ferries, is to secure the public accommodation; the right to take tolls is conferred as an equivalent for the obligation to accommodate the traveling public. Although the right to take tolls is privati juris and incident to the franchise, a ferry is publici juris and can not be created without a license: Hackett v. Wilson, 12 Or. 25, 6 Pac. 652.


Under the general power to manage county business. the county courts have authority to procure for the use of the assessor present-ownership books of all the property in the county, and to employ competent persons to prepare such books: Burnett v. Markley, 23 Or. 438, 439, 31 Pac. 1050. The county court may lawfully employ assistance in collecting delinquent which can not otherwise be collected, there being no interference with the duties of the sheriff, the regular tax collector: State ex rel. v. Hall, 37 Or. 481, 63 Pac. 13; Taylor v. Umatilla County, 6 Or. 394; Burnett v. Markley, 23 Or. 436, 31 Pac. 1050; but a contract which amounts to an interference with the duties of county officials is void, and can not be enforced: Burness v. Multnomah County, 37 Or. 460, 60 Pac. 1005.

County courts, in the matter of laying out and establishing roads, are of inferior and limited jurisdiction, and every essential jurisdictional fact must affirmatively appear by the record in support of its order; but when once it has acquired jurisdiction, the same intendments obtain in favor of the regularity of its proceedings as prevail in courts of general jurisdiction: Sime v. Spencer, 30 Or. 340, 47 Pac. 919; Grady v. Dundon, 30 Or. 333, 47 Pac. 915, and cases there cited.

It is the duty of the county court in each county in which there shall be an organized volunteer company, on application of the commanding officer thereof, to provide an

refuse so to do, its proceedings may be reviewed by a writ of review: Mountain v. Multnomah County, 8 Or. 470.

armory and armorer, and to audit, allow, and cause to be paid the necessary expense of the same, to an amount not exceeding $50 per month, and if the county court shall $ 913. County Represented, in Judicial Proceedings to Which it is a Party, by County Court.

All actions, suits, or proceedings by or against a county are in the name of such county, but the county is represented by the county court, and such court has authority and power to control and direct the proceeding therein, as if it were plaintiff or defendant, as the case may be. [L. 1862; D. Cd. § 871; H. C. § 897.]

This section requires all actions, suits, or proceedings by or against a county to be brought in the name of such county: Weiss v. Jackson County, 9 Or. 470.

The words "next term," as used in the section, referring to the time when a county court may complete the work of the county board of equalization, mean the next session of the court after the board has adjourned, irrespective of whether it is the

next regular term or at a session appointed by the court, as authorized by this section: Godfrey v. Douglas County, 28 Or. 446, 43 Pac. 171. In Tompkins V. Clackamas County, 11 Or. 365, 4 Pac. 1210, however, where the question was in relation to the statute laying out public roads, it was held that the statute referred to the next fixed term of court.

§ 914. When County Judge is Party, Proceedings May be Certified to Circuit Court.

Any proceedings commenced in the county court, whether actions at law or proceedings in probate, in which the county judge is a party or directly interested, may be certified to the circuit court in and for the county in which proceeding may be pending, where the action at law shall be proceeded with, as upon appeal from the county to the circuit court; if the matter be a matter in probate, then all of the original papers, and the proceedings had shall be certified to the circuit court and the judge of said circuit court shall proceed in the manner now prescribed for the county judge had the same remained in said court. [L. 1885, p. 64, § 1; H. C. $ 898.]

§ 915. County Court, When Holden-Appointment of Terms by Court or Judge. The county court is held at such times as may be appointed by law, and at such other as the court in term, or the county judge in vacation, may appoint, in like manner and with like effect as the circuit court or judge thereof is authorized by section 901. [L. 1862; D. Cd. § 872; H. C. $899.]

§ 916. When County Business Continued on Account of Division of Court.

When in the transaction of county business only two of the persons authorized to hold the court are present, and there shall be a disagreement between them, upon any question or matter before them, the same shall be continued until the next term, or until the third person authorized to sit is present. [L. 1862; D. Cd. § 873; H. C. § 900.]

$ 917. County Courts Must Examine Books and Papers of County Offices.

The county courts of the several counties of this state, while sitting for county business at the regular terms in January and July of each year shall carefully examine all books and papers relating to the financial affairs of the county offices of county clerk, clerk of the county court, clerk of the

circuit court, recorder of conveyances, treasurer, and sheriff of the several counties. [L. 1891, p. 117, § 1.]

§ 918. Orders and Vouchers to be Numbered to Correspond With Warrants Drawn.

The county clerks and clerks of the county courts of the several counties of this state shall number all orders and vouchers with numbers to correspond with warrants drawn, and shall exhibit such orders and vouchers, together with the stubs of said warrants, and all other books and papers relating to the financial affairs of the county, for the inspection of the county courts at the time provided for in section 917. [L. 1891, p. 117, § 2.]

§ 919. Appointment and Payment of Crier and Bailiffs.

The county court has the same power and authority to appoint a crier and bailiffs as the circuit court, and shall ascertain and order the payment of their legal fees therefor in like manner and with like effect. [L. 1862; D. Cd. § 874; H. C. § 901.]

§ 920. Appeal and Review of Decisions of the County Court.

The provisions of chapter V of title VII relating to appeals are intended 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.

APPEAL AND REVIEW.-No appeal lies from the decisions of the county court in the transaction of county business, but such decisions may be reviewed on writ of review: Mountain v. Multnomah County, 8 Or. 470; but the decisions here referred to are only those which are judicial in their nature: Crossen v. Wasco County, 10 Or. 111.

Thus, it is held that the county court in auditing, allowing, and causing to be paid the expenses of an armory, acts judicially, and its action therein may be reviewed by writ of review; but when the law prescribes the services of officers and the fees to be paid therefor, and directs that the county must pay such fees when the services are rendered, the county court in settling with a sheriff in such a case acts merely as the agent of the county, and its acts in that regard are not judicial and not subject to writ of review: Crossen V. Wasco County, 10 Or. 116. So, in issuing warrants in compromise of claims against the county for services rendered, the court does not act judicially, and such action can not be reviewed by writ of review: Frankl v. Bailey, 31 Or. 288, 50 Pac. 186.

The county court sitting for the transaction of probate business is an inferior court, whose proceedings may be examined by writ of review: Garnsey v. County Court, 33 Or. 201, 54 Pac. 1089.

The county court acting on the expediency and manner of repairing bridges on the public highway does not act judicially: Stout v. Yamhill County, 31 Or. 314, 51 Pac. 442.

But when the county court audits an account for services, the amount of compensation of which is not fixed by law, it is doing "county business," its acts are ju

[L. 1862; D. Cd. § 875; H. C. § 902.]

dicial, and its award must be regarded as just compensation. In such a case its decision may be reviewed by writ of review: Pruden v. Grant County, 12 Or. 308, 7 Pac. 308.

A court in locating and establishing highways is transacting county business, and its proceedings can be reviewed only by writ of review: Leader V. Multnomah County, 23 Or. 213, 31 Pac. 481.

The provision of the miscellaneous laws giving to any complainant who may feel himself aggrieved by an assessment of damages by the county court for locating a road the right to appeal therefrom to the circuit court, modifies this section only to the extent of allowing an appeal from the order of the county court adopting and approving the report of the appraisers. It does not allow an appeal from the entire proceedings in locating the road; hence, on such an appeal no questions of petition or notice can be considered: Leader V. Multnomah County, 23 Or. 213, 31 Pac. 481. The writ of review is the proper remedy for correcting the errors of the county court in apportioning, or refusing to apportion, the road fund of the county: Oregon City v. Clackamas County, 32 Ör. 495, 52 Pac. 310.

The proceedings of the county court sitting as a law court may be reviewed by the circuit court on a writ, since it is now concurrent with the right of appeal: Kirkwood v. Washington County, 32 Or. 568, 52 Pac. 568.

An appeal lies from a judgment of a county court entered on demurrer, for a demurrer is an answer under the section giving the right of appeal: Willis v. Marks, 29 Or. 496, 45 Pac. 293.

An adjudication of the county court set

tling a final account of an administrator and directing the distribution of the estate, is a decree and not a judgment, and on an appeal the evidence must accompany the transcript, and the case be tried anew: Re Plunkett's Estate, 33 Or. 414, 54 Pac. 152.

In all appeals from the county court, no other or different issues than those upon which the judgment was rendered in the court below can be heard in the appellate court: Cain v. Harden, 1 Or. 361.

§ 921. Order of Docketing and Disposition of Business.

The business of the court at each term shall be docketed and disposed of in the following order:

1. Cases at law, including motions or other proceedings connected therewith;

2. The business pertaining to a court of probate as defined and specified in section 911;

3. County business.

The proceedings and records of the court pertaining to or concerning the three classifications of business specified in subdivisions of this section shall be entered and kept in separate books. [L. 1862; D. Cd. § 876; H. C. § 903.]

This section is only directory, and an order or judgment of a county court entered in any of its books of record is, nevertheless, valid: Spriggs v. Stump. 8 Fed. 207. Quaere: Whether the inquisition of lunacy authorized to be had before the county judge belongs to either of the three classes of business whose records are to be kept separate. as here required: Spriggs v. Stump, 8 Fed. 207. Quaere: Whether binding an apprentice belongs to probate proceedings or county business: Ex parte Emma, 48 Fed. 213.

Parol evidence is admissible to supplement the records of a county court as to proceedings of such court when sitting for the transaction of county business, since the court is then acting only as the agent of the county, and in such case the records

do not constitute the only evidence of what was done: Stout v. Yamhill County, 31 Or. 320. 51 Pac. 442.

The proceedings of the county court as to the construction of a bridge must be entered in a book kept for that purpose. The court in this, as in all other cases, speaks by its record, and not otherwise; but where the county court agreed with the contractor for a certain modification of plans of a bridge then in the course of construction, and for compensation therefor, but the compensation was omitted from the entry in the record, the extra work and material involved in the modification having been done and furnished, and accepted by the county, the latter is liable for the reasonable value thereof: Pacific Bridge Co. v. Clackamas County, 45 Fed. 217.

§ 922. For What Business Court Always Open.

The court is always open for the transaction of the business mentioned in subdivision 2 of the last section, whenever the particular proceeding or transaction is authorized to be had or done without the presence of or notice to another. [L. 1862; D. Cd. § 877; H. C. § 904.]

§ 923. Other Jurisdiction and Authority.

The county judge of any county of this state shall grant preliminary injunctions or orders in any suit in the circuit court commenced in such county, upon application to him by the plaintiff or his attorney, duly made in the manner prescribed by chapter IV of title VI of the code of civil procedure, which order of injunction shall by him be made returnable to the circuit court of such county where said suit is commenced, to be then heard and determined, and such county judge has such other jurisdiction, authority, and power as is elsewhere expressly given to it or him by this code or other statute. [L. 1862; D. Cd. § 878; L. 1882, p. 59, § 1; H. C. § 905.]

See § 418 as to the allowance of an injunction and undertaking therefor.

$ 924.



Justice's Court Defined; Where and by Whom Holden.

A justice's court is a court held by a justice of the peace, within the precinct for which he may be chosen. There are no particular terms of such court, but the same is always open for the transaction of business, according to the mode of proceeding prescribed for it. [L. 1862; D. Cd. $879; H. C. § 906.]

As a justice's court is always open for the transaction of business, when it once acquires jurisdiction of the subject-matter of an action, its authority to exercise such jurisdiction is continuous until it is terminated in some legal manner: Knapp v. King, 6 Or. 243. When a justice of the


Mode of Proceeding.

peace is absent on the day set for trial, he has authority to again bring the parties before him by issuing proper notice, and on his refusal to do so, mandamus will lie to compel action looking towards a final judgment: Finn v. Hyde, 52 Fed. 83.

The mode of proceeding and the rules of evidence are the same in a justice's court as in a like action or proceeding in a court of record, except where otherwise specially provided. [L. 1862; D. Cd. § 880; H. C. § 907.]

§ 926. Jurisdiction of Justice's Court.

A justice's court has jurisdiction, but not exclusive, of the following actions:

1. For the recovery of money or damages only, when the amount claimed does not exceed two hundred and fifty dollars;

2. For the recovery of specific personal property, when the value of the property claimed and the damages for the detention do not exceed two hundred and fifty dollars;

3. For the recovery of any penalty or forfeiture, whether given by statute or arising out of contract, not exceeding two hundred and fifty dollars;

4. Also, to give judgment without action, upon the confession of the defendant for any of the causes specified in this section, except for a penalty or forfeiture imposed by statute. [L. 1862; D. Cd. § 881; H. C. § 908.]

JURISDICTION OF JUSTICE'S COURT. -In prescribing the limit of amount or value over which justice's courts have jurisdiction, the legislature is not restricted to the amount to which jurisdiction extended at the time of the adoption of the constitution. The constitution, by authorizing the legislature to invest justices of the peace with "limited jurisdiction." without defining what that limit should be, left it entirely to the discretion of the legislature: Noland v. Costello. 2 Or. 56.

The court has jurisdiction of actions of replevin where the value of the property and damages claimed do not exceed $250: Kirk v. Matlock. 12 Or. 321, 7 Pac. 322. Where a transcript of proceedings of one justice was filed in the justice's court of another precinct, and the party who objected to the change of venue appeared and contested the proceedings, the justice had jurisdiction to render judgment therein: Wollenberg v. Haynes, 35 Or. 249, 57 Pac. 627. There is no presumption in favor of the

jurisdiction of a justice of the peace, and in pleading a judgment of such justice, it is necessary to show that the original proceeding was one of which the justice court had jurisdiction: Willits v. Walker, 32 Or. 411, 52 Pac. 24.

A justice's court has no power, in the absence of a statute expressly conferring the same, to set aside its own judgment duly rendered, or to grant a new trial, or leave to answer after judgment by default: American Loan Assoc. v. Fulton, 21 Or. 492. 28 Pac. 636.

The jurisdiction of a justice of the peace once obtained over the subject-matter of the action continues until the action abates or is legally disposed of by the justice: Southern Pac. Co. v. Russell, 20 Or. 459, 26 Pac. 304; Knapp v. King, 5 Or. 243; Finn v. Hyde, 52 Fed. 83.

In forcible entry and detainer, justice courts have jurisdiction to the exclusion of the circuit courts: Thompson v. Wolf, 6 Or. 308. See, also, § 5746, post.

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