# State ex rel. v. Siemens

> Oregon Supreme Court · July 29, 1913 · 68 Or. 1

URL: https://www.frixlaw.com/law-library/cases/6903530

## Case

- **Full name:** STATE ex rel. v. SIEMENS
- **Court:** Oregon Supreme Court
- **Decided:** July 29, 1913
- **Citations:** 68 Or. 1; 133 P. 1173; 1913 Ore. LEXIS 85
- **Precedential status:** Published
- **Opinion:** Dissent by Burnett
- **Judges:** Burnett, McBride, McNary
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6903530

## Opinion text

Mr. Justice Burnett
delivered the following dissenting opinion:
At the suit of the State of Oregon, on relation of the First National Bank of Klamath Falls, an alternative writ of mandamus has been issued out of this court, directed to the defendant as county treasurer of Klamath County. It recites that on June 2, 1913, the bank made application to defendant to be designated as a *9 depositary for county funds, that the application was accompanied by sundry municipal and school district bonds, amounting to $63,150, and an American Surety Company bond of that date for $25,000, and that on the following day the bank renewed its application in the same words, and accompanied by the same bonds, together with a sworn statement of the financial condition of the bank at the close of business May 31, 1913. It is also stated in the writ “that defendant did, on June 10, 1913, unlawfully, and without just or any reason therefor, reject said applications, and returned the same indorsed: ‘Rejected. J. W. Siemens, County Treasurer’ — together with said sworn statement of financial condition and said bonds. That defendant in making said rejection declared and admitted that said application was in proper form, duly and properly made, executed and tendered, and that said bonds were good, genuine and valid bonds, and of a proper kind to be accepted to secure deposits of county funds, but defendant alleged and declared, as a basis and justification for such rejection, that he, as such treasurer, had and was vested with an absolute discretion to accept or reject any application for designation as such depositary, even though the applicant was qualified for such designation, and had performed each of the acts required by law to secure such designation.” The application, a copy of which is attached as an exhibit, states that the bank estimates the bonds of the present value of $90,000, and gives a list of the same, and that all the municipal and school district bonds have the proper coupons attached, and the market value of the same is par or more. Nothing is stated in the writ or in the copy of the application attached as an exhibit about whether the American Surety Company is qualified or not. It concludes with a direction, in substance, that the defendant designate the relator as a depositary for connty funds, or show cause to the *10 contrary. The defendant demurs to the writ on several grounds, the first of which only is necessary to he considered, namely, “that it appears on the face of said writ that the facts and-matter therein stated did not entitle the relator to the relief demanded.”
The act of February 27, 1913, being Chapter 273 of the laws of that year, provides: “It shall be the duty of the county treasurers of the several counties of the State of Oregon, on the first Monday in June of each year to designate such banks and trust companies within the respective counties as have, under the provisions of this act become eligible county depositaries for the purpose of receiving on deposit funds of said county and paying out the same on order, or check of the county treasurer. Such banks and trust companies shall qualify as county depositaries as follows : The banks and trust companies, applying to be made depositaries under the provisions of this act, shall on or before the first Monday of June of each year, -file application in writing with the county treasurer, said application to be accompanied with a sworn statement of the financial condition of said bank, or trust company at the time said application is made. The county treasurer shall pass upon the application made in compliance with this act and shall stamp upon said application ‘Approved,’ or ‘Rejected,’ and the same shall be duly signed by the county treasurer and it shall be the duty of the county treasurer to transmit to the district attorney such application, together with all securities offered for protection of the county funds, and it shall be the duty of the district attorney upon the receipt of such application, and securities, to pass upon the same, and advise the county treasurer as to their legality.” It is also provided, in substance, that before any such application shall be approved, it shall be accompanied by a bond secured by a duly qualified surety company, guaranteeing the *11 amount of deposits applied for in the said application, or it may be accompanied by other bonds specified in the act. It is also said, in Section 1 of the act, that, “No securities shall be approved unless their market value shall equal the amounts of deposits applied for by any bank. ’ ’
Section 28, Article IV of the Oregon Constitution states: “No act shall take effect until ninety days from the end of the session at which the same shall have been passed, except in case of emergency. * * ’ ’ The session of the legislative assembly at which the act in question was passed ended March 4,1913. The 90-day period thereafter expired on Monday, June 2, 1913, the same being the first Monday of that month: hence the law became effective only on the day following. The statute is prospective in its terms. On the first Monday of June of the present year there was no law in any way qualifying or repealing the statute making the treasurer the custodian of all the county funds. Hence no petition could regularly have been filed at the time prescribed in the statute, namely, on the first Monday of June, 1913. If the statute had said that petitions should be filed on the second Monday of August or December of each year, no one would contend that the treasurer could anticipate the date on which he could designate the depositaries. The reason of the rule is the same when applied to the actual dates involved. No duty is enjoined upon the treasurer until the time named in the statute. If he can take it upon himself to designate a depositary either before or after the day named in the statute, the exercise of power is discretionary, and cannot be controlled by mandamus.
It is said in the law that the petition must be presented on or before the first Monday of June of each year. It is then made the duty of the county treasurer to “pass upon the application made in compliance with *12 this act.” Something more, then, is required of him than to adjudicate whether or not the mere form of the statute is observed. It goes without saying that if the application does not conform to the act in question, the treasurer would be justified in rejecting it; but the new law says that an application made in compliance with the act is still the subject of his consideration, and the law itself prescribes two forms of judgment which the treasurer may adopt, namely, ‘ ‘ approved” or “rejected.” It must be remembered, also, that the statute further says: “No securities shall be approved unless their market value shall equal the amounts of deposits applied for by any bank.” It does not establish any procedure or specify any authority by which this value can be determined. Manifestly that is one of the matters committed to the judgment of the public custodian of funds. It certainly cannot belong to the applicant. It is not reasonable to suppose that the legislature intended that a would-be depositary should be permitted to sit in judgment on its own case and bind the treasurer by its own valuation of the offered security. The treasurer, being the person elected by the people for the purpose of controlling the custody of funds, is in good reason the one to pass upon the value of securities tendered in such cases.
It is said in Section 613, L. O. L., that a writ of mandamus “may be issued to any inferior court, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; but though the writ may require such court, corporation, board, officer, or person to exercise its or his judgment, or proceed to the discharge of any of its or his functions, it shall not control judicial discretion.” The general rule in such instances is that the court by the extraordinary writ of mandamus may compel the *13 officer to act, but it cannot control tbe result of Ms decision. While it commands him to act, it cannot put into his mouth the judgment which he must render. This is not a case of postponed duty. It is argued that if the defendant neglected to appoint a depositary on the date named in the statute, he could be compelled to do the act afterward; but, on the first Monday in June, as we have seen, there was no law requiring the act to be done. It having been required that the petition must be presented on or before the day named, if we regard the plain words of the statute, it must be on the first Monday in June next following when the appointment is to be made. In this case the defendant had acted in one of the only two ways in wMch the statute says he must act. In the language of Mr. Justice Bradley in United States ex rel. v. Black, 128 U. S. 40 ( 32 L. Ed. 354 , 9 Sup. Ct. Rep. 12): “The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but, when they refuse to act in a case at all, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them— that is, a service which they are bound to perform without further question — then, if they refuse, a mandamus may be issued to compel them. Judged by this rule the present case presents no difficulty. The commissioner of pensions did not refuse to act or decide. He did act and decide. He adopted an interpretation of the law adverse to the relator, and his decision was confirmed by the Secretary of the Interior, as evidenced by his signature of the certificate. Whether if the law were properly before us for consideration, we should be of the same opinion, or of a different opinion, is of no consequence in the decision of this case.”
*14 Here is .an officer with, jurisdiction of the subject matter and power to render either of two specified de-cisions. He may have decided wrongly or rightly, or may or may not have given a wrong reason for a proper decision; but the result is not to be made the subject of mandamus. Section 603, L. O. L., says:11 Any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for error therein, as in this chapter prescribed, and not otherwise. ’ ’ This language clearly indicates the writ of review to be the proper remedy for the grievances of which the relator complains, if they exist as a matter of law.
The demurrer should be sustained.
Mr. Chief Justice McBride concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6903530. Public record. Not legal advice.