Irwin v. Klamath County

183 P. 780, 93 Or. 538, 1919 Ore. LEXIS 185

• Court: Oregon Supreme Court
• Decided: September 23, 1919
• Status: Published

Opinions

JOHNS, J.

1. The complaint is founded upon a specific contract between the plaintiff as district attorney and agent of the defendant, to recover the agreed' and stipulated price of alleged services rendered by Wynn and others to the defendant. It is contended that the plaintiff as such district attorney had legal authority to make such contracts; that he did make them and that by reason thereof the county is liable for the amount of the agreed price. In a measure this involves the construction of Chapter 141, Laws of 1915, known as the Prohibition Act, and the powers and duties of the district attorney under this act. The primary purpose of this law is to prohibit the manufacture and sale of intoxicating liquors and to make it the duty of city, county and state officers to see that it is enforced. Section 24' of the act provides that “it shall be the duty of the district attorneys in this state to diligently prosecute any and all persons violating any provisions of, and otherwise to enforce, this act in their respective counties”; that for any failure or neglect to perform such duty the officer shall be deemed guilty of a misdemeanor and subjected to fine and imprisonment, and that whenever any prosecuting officer shall fail or iiegiect to enforce these provisions, the Governor, as the chief executive officer of the state, shall appoint prosecutors in his discretion, who shall perform like duties and have like powers as the district attorney. Section 25 provides:

“All expenses incurred and disbursements made by or under the direction of the district attorney, or the prosecutor appointed by the Governor, in obtaining or attempting to obtain evidence, or otherwise, in prosecuting violators of this act, shall be paid by the County Court of the county in which violation shall be alleged to have been committed, upon the voucher of said district attorney or prosecutor appointed by the Governor, out of the general fund of said county.”

The alleged services were performed at the instance and request of the district attorney and not by a prosecutor appointed by the Governor.

There was a general denial of the contract and the performance of services. The casé was tried without a jury by the court, which found for the defendant. Assuming, without deciding, that all expenses incurred by the district attorney should be paid by the County Court, the statute does not authorize the district attorney as the agent of the county to make a specific contract for such services or to define 'or specify the amount which the county shall pay, and in the absence of statutory provision the district attorney would not have the legal right to execute a contract which would be binding on the county. Section 937, L. O. L., enacted in 1862, provides that the County Court has the authority and powers pertaining to county commissioners to transact county business and that it shall have “the general care and management of the county property, funds and business where the law does not otherwise expressly provide.” Without an express provision in the statute or an authorized contract, a county should be required to pay only the reasonable value of any services or labor performed. In the case of Brewster v. Springer, 80 Or. 68 (156 Pac. 433), upon which the plaintiff relies, the statute expressly provided the compensation in dispute: There is no such provision in Section 25 of the Prohibition Act. If the county is liable for the alleged services, it is liable only for the reasonable value thereof. The plaintiff seeks to recover upon a specific contract for services rendered at an agreed and stipulated price, and does not allege or prove the reasonable value thereof. ,;

The judgment of the Circuit Court is affirmed.

AeEIRMED.

McBride, C. J., concurs.