Berridge v. Nickell

178 P. 353, 91 Or. 51, 1919 Ore. LEXIS 20

• Court: Oregon Supreme Court
• Decided: February 11, 1919
• Status: Published

Opinion

McBRIDE, C. J.

This is a proceeding in mandamus to compel the County Court to pass upon a claim of plaintiffs for services rendered in auditing the books and accounts of Yamhill County, pursuant to a contract with the State Insurance Commissioner. The facts are practically identical with those in Mackenzie v. Douglas County, post, p. 375 (178 Pac. 350), and the reasoning in that case applies here.

Plaintiffs had begun an action claiming the right to recover under the provision of Chapter 286, Laws of 1913, but after the opinions of this court were rendered in Mackenzie v. Douglas County, 81 Or. 442 (159 Pac. 625, 1033), and Berridge v. Marion County, 81 Or. 391 (159 Pac. 628), they refused to. proceed further and their action was dismissed for want of prosecution. When Chapter 252, Laws of 1917, was enacted plaintiffs again presented their claim, but the County Court refused to take any action whatever and thereupon plaintiffs brought this proceeding to compel the court to pass upon their claim.

In addition to what is said in Mackenzie v. Douglas County, we may add that in our opinion the words “authorized and empowered” used in Chapter 252, Laws of 1917, are mandatory and not permissive, the rule being that where these, or like words, are used in a statute to provide for the doing of some act required by public duty or justice or where the rights of a citizen are concerned, they will be construed as mandatory: See title, “Authorize,” 1 Words & Phrases, 647.

The judgment of the Circuit Court is reversed and a judgment will be entered here directing the County Court to pass upon the claim. .

Reversed. Judgment Entered.

Bean, Johns and Burnett, JJ., concur.