State Ex Rel. Innes v. Haner

McBRIDE, J. In principle, this cause is in many respects similar to the case of Gosso v. Riddell, decided November 15, 1927, but there is a difference in the form in which the action is brought, and a slight difference between the statutes relating to compensation of county commissioners of Deschutes County and those relating to the same officers .in Polk County requires additional discussion. For instance, no provision whatever is made for mileage of county commissioners of Polk County, while in the act providing for compensation of officers of Deschutes County, we find the following provision: “County commissioners shall receive $5 per day for the time they are actually employed in the performance of their official duties, and shall receive 10 cents per mile for each mile actually traveled in the performance of their duties in attending county court and returning therefrom.” *307 There are other differences in the two statutes which need not be enumerated. The County Court is the judge as to whether it is proper to inspect roads and bridges in order to inform itself of their condition, and as to whether contracts for building or repair are necessary, and to do any other act necessary in that respect to secure information as to conditions involving or requiring the expenditure of county funds. The safety of the public traveling over the public highways requires such reasonable attention. This, the members of that board may do in a body or employ some person to do, or designate one of their own members to do, and, in so doing in good faith, such member is transacting county business and is entitled to $5 per day: Gosso v. Riddell (not yet reported), 261 Pac. 71, and Section 4537, Or. L. But the commissioner who exercises such power must be “designated’† by the court. Such power, as in Gosso v. Riddell, supra, may be by a general designation confined to a particular part of the county, or by a special designation having in view the inspection of a particular road or bridge. In the case last alluded to, it appeared by the answer that it was orally agreed by the court that one commissioner was to inspect work el cetera in the northern end of the county and the other commissioner was to perform a like service in the southern end, and that in pursuance of such oral designation, each had in good faith performed the part assigned to him. In that case we held substantially that the allowance of his claim for compensation at the rate of $5 per day amounted to a ratification of an agreement not theretofore put upon record, and this holding is quite as far as we feel the court had authority to go. In the absence of any pleading or proof of either such designation of record, or ratification of such designation, which in *308 fact was not of record, the relator cannot assert a right to be compensated. There is no law requiring that a county commissioner shall exercise any oversight over elections in the various precincts and in the absence of any reply or pleading, showing a legal exigency requiring such service, an allowance therefor is prima facie void. The relator was entitled to mileage in going from and returning to the county seat and his place of residence and no more, and any allowance beyond that was absolutely void. In this holding we make no reflection upon the good faith of the relator or of the County Court. The statute regarding the compensation of county commissioners differs in some respects in nearly every county, and the general statute upon the powers and duties of county commissioners is somewhat obscure. So this claim and the allowance of it may have been, and probably was made in entire good faith. The remarks here made are not in the spirit of censure, but are intended as a guide to officers hereafter. Aside from what we have here said, there is a controlling reason why the clerk should not have drawn this warrant. Chapter 159, General Laws of 1925, is as follows: “Section 1. That each county commissioner, where his claim for pay as such commissioner is based upon a per diem and/or mileage basis, shall prepare and file with the county clerk of his respective county an "'-itemized sworn statement setting forth the day and date of the month on which his services for the county were performed, the nature of such services, and if by law he is allowed mileage in the performance of such services, he shall set forth in such claim the number of miles actually traveled by him in going to and returning from the place or places where *309 such services were performed, and shall designate the name or names of such places as accurately as he can. “Section 2. That no claim of a county commissioner for pay, for his services as such, shall be audited and paid by a county clerk, unless such claim shall conform to the provisions of section 1 of this act.” Writs of mandamus are not favorites of the law and should state every fact necessary to entitle the relator to the relief demanded. It does not appear in the writ, or even in the petition, that this claim was ever itemized or filed with the clerk, but merely that it was “presented” to the County Court. This is not enough. The County Court had no authority to allow a claim not filed with the clerk. We have a right to infer from the record that it was exhibited to the court and allowed without any opportunity for anyone to know of its existence. The statute is a wise one and should be strictly enforced, and as it placed a duty as well as a prohibition upon the clerk, he had a right to disregard an order that was entirely void. Impliedly, it authorized him to audit the claim, but his audit would be merely advisory and not binding on the court. We further hold that he may refuse to draw a warrant for what appears to be an utterly void claim; but such refusal is at his peril in costs or damages if the claim should finally be held valid. The judgment of the Circuit Court is reversed and the writ dismissed, but without prejudice to the relator’s right to file and present to the County Court a claim for that part of his services which are valid in the light of this opinion. Reversed and Writ Dismissed.