Daily capital journal. (Salem, Or.) 1896-1899, 1896-01-27
HEWITT REVERSED
Question Of Constituting the Constr
tuition Again Avoided.
TIE ASYLUM DECISION.

effect certain legislative acts for con
struction Of branch asylum in East
crn Oregon.
The complaint recites that relato
and other citizens are taxpayers, thai
the board are bound to expend large
sums under this act, which expendi
lures plaintiff alleges are unlawful
and repugnant to the constitution, In
the sum of slG5, 200; that the proposed
expenditure of plaintiffs money afore
said would be contrary to the consti
tuition in that said institution would
not be- at the seat Of government OF
the state but over 800 miles away.
Plaintiff argues that IL would cost
more than 100000 more than If suit
able provision for the same purpose
were made at the capital, and that
the annual cost would be $4,000 more
than at the capital.
Therefore plaintiff prays for an in.
junction to restrain defendents from
using money of plaintiffs for this pur'
pose.
Defendants demurred to the COM
plant, but demurrer was Overruled,
and defendants answered. A trial
was had upon the issues joined result
ing IN a decree in accordance with
prayer Of Plaintiff Taylor from which
defendant appealed TO the supreme
court, which decree Is now reversed
and injunction dissolved, opinion by
WOlyerton
Wolverton, j., says when this case
was in the court before, the court
held that private individual could
not have public officers enjoined from
using public funds unless it could be
shown that some civil or property
rights we're being invaded, or in other
words that the individual was going
to get hurt by the transaction. 1t
was decided that he should he required
to show that the location Of the
asylum in Eastern Oregon would be
attended with greater cost than II
constructed at the capital, thereby
increasing the burden OF taxes. 1t
was also held the state stood in no
different relation than the private in
diyldual. Decisions are cited to sup
port these views
II is contended that relator will be
damaged by the location at Union
under the rule but we cannot concur
with this view. The theory OF relator
Is that II this injunction is granted
the insane will be provided for at the
Cottage farm without new buildings
etc. But who can say that the legls-
laturc would not build the branch and
employ another superintendent at the
Cottage farm. "The matter is OF
such vital and public concern, and at
tended with such diverse and depend
ent circumstances and so wholly and
peculiarly within the province OF the
legislature To devise the WAYS and
means that IL would be but a conject-
ure at best to attempt to determine
In advance the result of its dellbera-
tion in this repect."
But IL is now contended for the
first time that this is suit by the
state in the right OF prerogative in
cident To sovereignty; that Il was in
stituted by the law officer OF the
state In the interest OF the whole peo-
pie and being so instituted, the high
prerogative powers OF government are
set IN motion, etc, etc, and author
tiles cited.
There is then long discussion of
relator and mandamus at common
law proceedings in this country and
England.
An extended argument follows to
show that the act was deliberately
passed by the legislature, approved nv
the governor, and that now the ndi-
cal department called upon to prevent
ITS execution. "Is il competent for IL
to interpoSe in this proceeding and
restrain the executive department of
the state : II may well be admitted
that II the duty pertained 20 acts
which are merely ministerial in their
character which call for no exercise OF
Judgment or discretion, do not relate
to political OF governmental matters
the governor OF the state may, al the
SUIT OF interested parties. in a pro-
eeedlng appropriate for the purpose
oe compelled at the hands OF the
to perform. But n il per.
'alns To duties which require the
exercise of Judgment or discretion 10 |
perform, or 10 matters political and |
governmental in their nature. All the
authorities agree that the execu.
'lve Is clearly Independent OF the |
other coordinate departments Of