Sears v. James

Mr. Justice BeaN delivered the opinion of the court. 1. For the purposes of this appeal the averments of the complaint must be taken as true, and the single question is whether plaintiff can maintain the suit. That a taxpayer may invoke the interposition of a court of equity to prevent the illegal disposition of public funds is no longer open to. question in this State: Burness v. Multnomah County, 37 Or. 460 (60 Pac. 1005), and authorities there cited. But, where the fund has already been wasted or [55] paid out, the action to recover it back must be brought by the state or municipality to which it belonged. It was so decided in Brownfield v. Houser, 30 Or. 534 (40 Pac. 843). In that case Houser, who was Sheriff of Umatilla County, had been paid a large amount of money by the county for services, without authority of law, and it was held that the county might maintain an action to recover it back, but an individual taxpayer could not do so. The court said that the right of a taxpayer to enjoin the public authorities from misapplying or misappropriating public funds was well recognized, but, when the fund had already been misapplied, “the mischief is accomplished and the injury completed, in which case the necessity for an extraordinary remedy does not exist. To allow a taxpayer in his own name to maintain an action to recover corporate property or funds after they had been diverted would be equivalent to opening wide the doors to an indefinite number of actions by persons similarly situated, thereby subjecting the officers and corporation to interminable litigation : 2 Dillon, Munic. Corp. § 921. When the injury is complete, the unlawful diversion of public funds falls directly upon the municipal corporation and remotely upon each taxpayer, and, since the corporation is the actual party sustaining the direct result of the injury, so should it also be the real party in interest, either in its own corporate name or upon the relation of a proper person, to prosecute an action for the redress of the injury after its consummation.” So far, therefore, as the money already expended for the private use and benefit of the defendant is concerned, the Brownfield Case is controlling, and the plaintiff has no cause of suit. 2. The complaint contains a general averment that the defendant threatens to and will, unless restrained by the court, continue to furnish himself and family with gro [56] ceries and provisions, and cause the bills therefor to be paid out of state funds, and that he will continue to use the services of convicts; and it is argued that the plaintiff is entitled to an injunction restraining him from doing so. The defendant has no authority under the law to pay any bills or handle or disburse any state funds. He has authority to make all purchases of supplies needed for the penitentiary or prisoners (B. & C. Comp. § 3655), but the accounts therefor must be presented to and audited by the Secretary of State, and no money can be paid for any purpose oh account of the penitentiary except upon warrants issued by that officer: B. & C. Comp. § 3663. The Secretary of State is therefore the auditing officer, charged with the duty of protecting the State from false and fraudulent claims. He is not a party to this suit, and we must assume that he will discharge his duty, and, if defendant approves or presents an illegal claim, that it will be disallowed. Until some such claim has been presented and is about to be paid out of state funds, there is no ground for equitable interference. 3. The statute provides that the superintendent of the penitentiary shall not receive the labor of any prisoner for his individual profit, or be interested in any contract upon which such labor shall be employed : B. & C. Comp. § 3662. If the defendant has or is violating this section, he may be liable for malfeasance in office; but it is in our opinion no ground for equitable interference at the suit of an individual taxpayer. The decree of the court below is affirmed. Affirmed.