Daily capital journal. (Salem, Or.) 1896-1899, 1897-12-01
THE INJUNCTION SUIT
Heard in Special Session Be-
fore Judge H. H. Hewitt
OF Department No. 2, Marion
County Circuit Court.


10 the suit OF G.. W. Hunsaker VS..
g. L. Brown, county treasurer OF Ma.
rion county, and Pugh Il Gray, part
ners, demurrer was filed to the sepa-
rate answer Of defendant. Brown, be-
fore Judge Hewitt this afternoon at
1 O'Clock. Messrs. Charlton & Cook
and VIM. II. Holmes appeared for
plaintiff, and demurrer on ground
that the matter 10 the answer does
not constitute defence or answer to
the complaint.
Pugb & Gray, by Carson & Flem
iug, their.attorneys, fled a demurrer
llleging that Hunsaker had not legal
;apacity To sue .and that facts did
not constitute cause for suit.
Mr. Carson argued that a private
;itizeD, is mere taxpayer had no
right tO bring the suit. This was
'ettled 10 he supreme court decision
10 the Eaestern Oregon case. He cited
the cases Of Sherman VS.. Bellows, and
state ou relation of Taylor vs.. Lord
lOd others. Only the district
! attorney can bring this suit
IS the decision 10 that case. Court had
IlsO held thus in the recent Salem
! .chonl mandamus case. If all that
vas alleged was true there would be
ncreased taxation, but all taxpayers
sould suffer alike. a suit could only
De brought at the instance OF the
jarty injured, and that was the whole
;ounty.
Mr.. Charlton cited 10Th Or, State
vs. Pennoyer, option Of WolvertoD,
that an individual taxpayer whose
burdens were increased by unlawful
Icts Of public officials had right to
'edress by an Injunction suit.
Harmon VS.. Woodruff, 10th Or.
Mr.. Holmes received the precedents |
cited. He had participated in those
cases in this court and before the su-
preme court.
In the asylum case it was claimed |
not be increased by building in Union
county. Hence Taylor had no cause
for action. 1t Is admitted that Hun.
saker's taxes will be increased but
That he has no right to redress. The
right Of taxpayer to prevent wrong
iul use Of public funds by injunction
had ne er been overthrown by any de-
cision in Oregon. Other states were
unani"ous in their decisions.
Here counsel entered into a colo
guy involving the "ros gcstal' of the
whole suit. For a few moments the
meat of'the question dangled before
the court, but the judge withheld
comment.
Er. Carson renewed his contention
that Hu1Saker must show special
injury, and the complaint must al
lege fraud in The manner in which
funds were expended.
Judge Hewitt said the Oregon Su-
preme court decisions had tried to
between the enforcement
Of public duty and the prevention of
private wrong. A taxpayer could
not proceed by INJUNCTION TO enforce
the former, but as TO the latter, he
would take time TO carefully consider
al the cases cited,
Mr.. Holmes then argued the
demurrer to Treasurer Browns {
answer to the second amended
which has been
published as prepared by Sherman,
Condit and Park. This answer cites I
facts and alleges what is charged in
the complaint that the county judge
as an indlYidual had exercised wrong
full authority. Counsel argued that
the warrants issued in vacation were
clearly Illegal They did not assail
the action Of the court in making the
contract, but called in ques-
tiCn the manner in which warrants
were Issued
The commissioners court had only
ratified the contract 10 the amount Of
$1,000. If that warrant was issued then |
other warrants were still out and de |
PENDANTS still fall short
Mr., Sherman in reply said his client,
Treasurer Brown did not wish him to |
defend either side In this suit. He |
only desired that all the facts in the |
case be brought fully before |
the court and that his |
rights aud those OF his hondsmen be |
not assalled by the wrongful acts or
negligence, If any, of other parties. |
The clerk has been directed, whether |
la Wfully or not, TO issue the warrants. |
The treasurer would abide by the de-
cIslon of theIcourt and'would be gov
erned thereby
Leave was granted to amend de-
murrer and there will be farther hear
ing, Thursday.
Two MORE, - Cunty Clerk l.. V.
Ehlen today Issued two marriopa IL |