Opinion
Argued December 3, 1929
Affirmed December 24, 1929
From Clatsop: H.K. ZIMMERMAN, Judge.
For appellant there was a brief and oral argument by Mr. James L. Hope.
For respondent there was a brief over the name of Messrs. Norblad Hesse with an oral argument by Mr. Frank C. Hesse.
Plaintiff filed his amended petition for alternative writ of mandamus to which demurrer was sustained. Plaintiff refused to plead further and order was entered denying the writ and vacating the alternative previously issued. From this judgment the plaintiff appeals.
AFFIRMED.
On November 23, 1928, plaintiff and appellant filed in the circuit court of Clatsop county his verified petition for an alternative writ of mandamus, and on the same day the writ was issued requiring the defendant to show cause as of December 7, 1928. On January 28, 1929, an order was made allowing the original petition and alternative writ to be amended. The amended writ, omitting title and verification and formal allegations as to qualifications of plaintiff to maintain this action, is as follows:
"THE STATE OF OREGON: TO CLARA C. MUNSON, District Clerk of School District No. 30, of Clatsop County, Oregon, Greeting:
"Whereas, by the verified petition of W.C. Crawley, as receiver of the Astoria National bank, a corporation insolvent, plaintiff, it appears to this court as follows:
* * * * *
"That School District No. 30 of Clatsop county, state of Oregon, was and is during all times herein mentioned a duly organized and existing municipal corporation and school district of the second class, under and by virtue of the laws of the state of Oregon.
"That the defendant Clara C. Munson was and is during all times herein mentioned, the duly elected, qualified, and acting district school clerk of said School District No. 30 of Clatsop county, and as such, charged with the payment of all warrants so issued by said school district, in the order in which the same are indorsed, and upon funds becoming available for the payment of the same.
"That heretofore, and on November 5, 1926, said School District No. 30 of Clatsop county issued, or caused to be issued, by due and proper authority, in compliance with the laws of the state of Oregon governing school districts, its warrant in words and figures as follows:
"`SCHOOL DISTRICT No. 30, CLATSOP COUNTY. `$1.27. `To Clara C. Munson, `Clerk of School District No. 30, `Clatsop County, Oregon.
`Pay to Kilham Stationery Printing Co., or order, the sum of one 27-100 dollars for paper H. S. out of any money in your hands belonging to said district and not otherwise appropriated.
`No. 3448 Attest: `Clara C. Munson, `District Clerk.
`Edgar Deane, `Chairman Board Directors.
`Payable at Astoria National Bank.'
"(Indorsed on back): `Presented for payment this 5th day of November, 1926, and not paid for want of funds.
`Clara C. Munson, `District Clerk.'
"That the aforesaid warrant was, after its issuance, duly delivered to said Kilham Stationery Printing company, and was thereafter duly sold, transferred and delivered to the said Astoria National bank for value, and said Astoria National bank and this plaintiff, as receiver thereof, are now and have been since the indorsement thereof, the owners of and in possession of same.
"That said last mentioned warrant was duly presented to said defendant for payment on November 5, 1926, and was on said last mentioned date duly indorsed by said defendant, as said clerk: `Not paid for want of funds.'
"That there was also issued, or caused to be issued by said School District No. 30, various and sundry of its warrants at various other times to various other persons and parties, and for various amounts, all of which warrants are in the identical form and language as set forth in the warrant as alleged in paragraph V of said petition, and hereinbefore set forth, save and except the date thereof, the amount thereof, the payee thereof, the number thereof, and purpose for which issued, and that for the sake of brevity there is herein listed all such warrants now held and owned by the plaintiff and petitioner herein, setting forth the date of issuance, amount thereof, payee thereof, and the date presented to defendant and indorsed: `Not paid for want of funds,' as follows:
`Date Amount Name of Payee Date presented for payment and allindorsed "not paid for want of funds" by defendant as clerk of said district.
`May 13, '27. $175.00 A.S. Propst. May 13, '27.'
"(Note: In such amended alternative writ of mandamus there is then listed 227 separate warrants, totaling $19,524.23, all as follows, but omitted from this abstract of record for the sake of brevity.)
"That all of the above listed and referred to warrants were heretofore, by said School District No. 30, delivered to the respective payees thereof, and that said respective payees thereof, for value received, sold, transferred, and assigned said warrants to said Astoria National bank, and said Astoria National bank, and this plaintiff, as receiver thereof, are now and ever since have been the owners and holders thereof, and in possession thereof, and that each of said listed and above referred to warrants was duly presented to said defendant as clerk of said School District No. 30, and indorsed: `Not paid for want of funds,' by said defendant as said school district clerk on the date or times above listed and set opposite each thereof.
"That this plaintiff has made due and several demands upon said defendant as said clerk of said school district, and upon said school district, to make payment of said warrants, and that said clerk and said school district has failed and refused to pay the same, or any part thereof.
"That section 5253 of Oregon Laws is as follows:
"`Section 5253. Application of Available Funds on Unpaid School Warrants. When any warrants, issued by any school district of this state, have been or hereafter may be indorsed "not paid for want of funds," and funds shall thereafter become available for the payment of the same, such funds shall be applied in payment of such warrants in the order in which they were so indorsed.'
"That monies and funds belonging to School District No. 30 of Clatsop county, Oregon, have become available and into the hands and into the possession of said defendant since the respective dates of the indorsement on said warrants: `Not paid for want of funds,' with which to pay said warrants, and the whole thereof, or at least the greater portion thereof, but that said defendant has failed and refused to apply said funds to the payment of said warrants, and that said defendant, notwithstanding said funds were so available, has paid, or caused to be paid warrants issued by said school district and indorsed subsequent and after the dates and times of the indorsements so affixed to said above listed warrants so owned and held by said plaintiff and petitioner herein as aforesaid, and/or has made direct payment without the issuance of warrants, of funds which by right should have been available to the payment of the said warrants now held and owned by this plaintiff, all contrary to the laws of the state of Oregon.
"That other warrants of said school district may be outstanding and unpaid which bear an indorsement `Not paid for want of funds' prior in date as those of plaintiff herein set forth.
"That plaintiff has no plain, speedy, or adequate remedy at law.
"Now, Therefore, we, being willing that full and speedy justice should be done in the premises, do command you, the said Clara C. Munson, as district clerk of School District No. 30, that immediately after the receipt of this writ, you observe and carry out the provisions of § 5253, O.L., and particularly that you use and apply all the available funds and monies in your hands, in your possession, or under your custody and control as clerk of said School District No. 30, to the payment of outstanding warrants of said school district in the order of their indorsement, and that you forthwith cease to make payment of any warrants so issued by the said School District No. 30 from funds available which shall bear indorsement or do es bear indorsement `not paid for want of funds' subsequent to and after the respective dates of indorsement on all said above referred to and listed warrants now owned and held by plaintiff herein, and that you further, as such school clerk, cease making payment direct from funds available which by right should and ought to be applied to the payment of warrants of said district indorsed `not paid for want of funds,' or that you appear before this court in the court room thereof in the courthouse at Astoria, Oregon, on the 7th day of December, 1928, at the hour of 10:00 o'clock in the forenoon of said day, and show cause why you have not done so, and that you then and there return this writ with your certificate annexed of having done as commanded, or the cause of your omission thereof.
"Witness, the Honorable J.A. Eakin, judge of the circuit court of the state of Oregon for the county of Clatsop, and the seal of said court affixed by the clerk thereof, at Astoria, Oregon, this 23d day of November, 1928.
"J.C. Clinton, "Clerk of the Circuit Court of the State of "Oregon for the County of Clatsop." "(SEAL)"
On February 8, 1929, defendant filed her demurrer to the amended petition and writ, on the ground that a sufficient cause of action was not stated to authorize the issuance of a writ of mandamus in the premises. Thereafter, the circuit court of Clatsop county made an order sustaining said demurrer, and on April 11, 1929, the plaintiff having failed to plead further, an order was made by said court that said amended petition of plaintiff for an alternative writ of mandamus be denied, and that the alternative writ theretofore issued be vacated. From said judgment plaintiff has taken this appeal, assigning error committed by the court in sustaining defendant's demurrer to plaintiff's petition and writ.
AFFIRMED.
The issue presented is by a demurrer to the writ.
"When the right to require the performance of the act is clear, and it is apparent that no valid excuses can be given for not performing it, a peremptory mandamus shall be allowed in the first instance; in all other cases, the alternative writ shall be first issued": § 617, O.L."
It is argued that the writ does not state facts sufficient to constitute a cause of action, and the court below so held. The writ itself ought to contain every material fact alleged in the petition relied upon by the plaintiff to compel the defendant to act or do the particular things which the plaintiff demands. It is the writ which is the foundation of all subsequent proceedings and which may be demurred to or answered in like manner as the complaint in an action. Its purpose is the same as that of the complaint in other actions, and therefore it must state all the material facts and show a clear right to the relief demanded. To the writ itself then we must look to determine whether the facts are sufficient to support the action: Elliott v. Oliver, 22 Or. 46.
In Paine v. Wells, 89 Or. 699 ( 175 P. 430), the court, speaking through BEAN, J., says:
"It is contended by the counsel for defendants that essential allegations are omitted from the writ and without them the writ does not make that clear case required by the law. The necessary averments in an alternative writ of mandamus are stated in 13 Ency. of Pleading and Practice, pp. 677-681, substantially as follows:
"That the pleading must show, at least prima facie, a clear right existing in the relator to have the thing done which he seeks to enforce. It must allege the performance of conditions precedent; * * * it must negative any facts which under the statute relied upon might defeat his right to maintain the action. We quote from page 680 of that volume: `The relator must show that it is the respondent's duty, and that he has the power, to perform the act sought to be enforced. The relator must allege the facts from which the legal liability results, and a pleading is bad in substance if the duty does not in all cases result from the facts stated in it.'"
The plaintiff alleges the ownership of the various school warrants issued against School District No. 30 of Clatsop county, Oregon, which aggregate the sum of $19,524.23. These warrants had, before the commencement of this action, been presented for payment and indorsed "Not paid for want of funds."
§ 5253, O.L., reads as follows:
"When any warrants issued by any school district of this state have been or hereafter may be indorsed `Not paid for want of funds,' and funds shall thereafter become available for the payment of the same, such funds shall be applied in payment of such warrants in the order in which they were so indorsed."
School clerks are custodians of and must keep a correct account of all monies coming into their hands belonging to the district: § 5126, O.L.
§ 5168, O.L., reads:
"At least 85 per cent of the amount received from the county school tax and the irreducible school fund shall be applied on the teachers' salaries, and no part of said 85 per cent shall be applied for fuel, expense of lawsuits, chalk, brooms, blackboards," etc.
In view of the duties of defendant as by law prescribed; of the various funds which come into her possession as such officer, and of the classes of persons to whom these monies are payable, does it clearly appear from the writ issued in the instant cause that plaintiff is entitled to an order upon said defendant, "that you use and apply all the available funds and monies in your hands, in your possession, or under your custody and control as clerk of said School District No. 30, to the payment of outstanding warrants of said school district in the order of their indorsement, and that you forthwith cease to make payment of any warrants so issued by the said School District No. 30 from funds available which shall bear indorsement or do es bear indorsement `Not paid for want of funds' subsequent to and after the respective dates of indorsement on all said above referred to and listed warrants now owned and held by plaintiff herein"?
When it is considered that 85 per cent of the county school tax funds and a like amount of the irreducible school fund are set aside for the payment of teachers, and it does not appear as to the nature of plaintiff's claims, it becomes evident that there are not facts stated in the alternative writ issued upon which said order may be based. It may be — and it would not be inconsistent with the facts set forth herein — that defendant should pay, in performance of her duty, warrants issued by said school district, indorsed "Not paid for want of funds," subsequently in point of time to those held by plaintiff. This arises from the different classes of creditors of the said school district to whom these respective funds are payable.
It is also stated in said alternative writ that "other warrants of said school district may be outstanding and unpaid would bear an indorsement `Not paid for want of funds' prior, in date, as those of plaintiff's herein set forth." The fact that there are, or may be, other outstanding warrants indorsed `Not paid for want of funds' prior in point of time to those held by plaintiff is fatal to the issuance of said writ, for, by the provisions of said § 5253, O.L., any funds thereafter available for payment of the same shall be applied in the order in which they were so indorsed.
It is argued that the facts relative to the funds in the possession of said public officer are particularly within defendant's knowledge and therefore a statement in regard thereto should first come from her. This is in the way of avoiding a statement from the plaintiff in the writ of the facts showing the availability of the funds coming into defendant's hands as such officer. In all causes the superior knowledge of the individual's own affairs may be averred. However, the defendant is in the performance of a public duty, and the public records are accessible to the public. Besides, we have no assurance that a given defendant will file answer. Plaintiff is seeking an extraordinary remedy, and the writ in such cases must contain a statement of all the facts which shall show the right of the plaintiff to the order demanded, and, further, that said right shall be shown with certainty: Mackin v. Portland Gas Co., 38 Or. 120 ( 61 P. 134); State ex rel. v. Malheur County Court, 46 Or. 519 ( 81 P. 368); Dryden v. Daly, 89 Or. 218 ( 173 P. 667); Paine v. Wells, supra. In State ex rel. v. Malheur County Court, supra, the court says:
"To authorize an issuance of a writ of mandamus, it is necessary that the petitioner first show a legal right in himself to have the act done which is sought by the writ; and, second, that it is the plain legal duty of the defendant to perform the act, without discretion to do or refuse it."
It is claimed that plaintiff's allegation in the writ as follows:
"That monies and funds belonging to School District No. 30 of Clatsop county, Oregon, have become available and into the hands and into the possession of said defendant since the respective dates of the indorsement on said warrants: `Not paid for want of funds',"
is an insufficient allegation of the availability of the funds in defendant's possession as clerk of said school district with which to pay plaintiff's claims. In State ex rel. v. Malheur County Court, 46 Or. 519, 522 ( 81 P. 368), this court speaking through Mr. Chief Justice WOLVERTON, says:
"Where the matter is collateral to the essential fact, it is sufficient to allege generally that an election was duly held, or that an officer was duly elected and qualified, assuming to act in the particular capacity involved, as it has been alleged herein that the defendants are the duly elected judge and commissioners; but, where the fact itself must appear, it is not sufficient to say that it had been duly performed, without stating how."
Shively v. Pennoyer, 27 Or. 33 ( 39 P. 396); State v. Williams, 45 Or. 314 ( 77 P. 965); Equi v. Olcott, 66 Or. 213 ( 133 P. 775); and Canuto v. Weinberger, 79 Or. 342 ( 155 P. 190), are each cases reiterating the doctrine announced.
It would appear that the statement of plaintiff in his writ is not a compliance with the rule of pleading. There was not error committed by the court in sustaining said demurrer to the plaintiff's writ. The judgment is affirmed, with permission to appellant to apply to the lower court to amend the writ herein if he may so desire.
AFFIRMED.
COSHOW, C.J., and BEAN and BELT, JJ., concur.