Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-20
Kline ct al. '. Thompson ct ell.

Decided October 10, 1911.
A w. Kline, B. X. Lawson, ]. II.
Bartels, c. w. Wallace, John F. Spray
and o. NJ. KEN, respondents, V. Hell
mus W. Thompson, as county Judge,
II. NJ Price and r. j. Hemphill, as
county commissioners, Stacy NJ Rus
sell, as county clerk and S. W. Tay-
lor, as county treasurer Of the County
Of Lane, State of Oregon, appellants.
Appeal from the circuit court for Lane
county. Hon. William Galloway, Judge.
Submitted on briefs. j. c. Johnson
and J. S. Medley for respondents.
Woodcock & Smith, Thompson G.
Hardy and Potter & Bryson for appel
lants. Burnett, j. Reversed.
In this suit the plaintiffs are de-
scribed as citizens, residents and tax
payers within the corporate limits of
the city of Cottage Grove, Lane
county, State of Oregon. The defen-
dant, Helmus w. Thompson, is the
duly elected, qualified and acting
county judge, and the other defendants
are respectively, the county commits
sioners, the county clerk and the
county treasurer, of that county. AS
to the first cause of suit the substance
Of the complaint is that for some years
past the defendants and their prede-
cessors as such county officers have
pursued the policy of paying all ex-
penses of improving roads and bridges
and the like out of the fund of the
county derived from taxes levied for
general county purposes, refusing to
levy road tax to be set apart as a
general road fund applicable only to
the highway purposes named and, un-
less restrained, these officers will con-
tinue such previous policy all to the
irreparable damage of the plaintiffs
For second cause Of suit the COM
plant alleges in substance that at the
term OF the county court Of Lane
county In January, 1911, It was the
duty Of that court to levy tax of not
over ten mills to be set apart as
general road fund and to divide fifty
per cent of the same, when collected.
among the several road districts of
the county proportionally to the tax
able property in each district but, in
stead OF so doing the court estimated
that four mills on the dollar of tax
able property in the county would be
required for highway purposes and in
cluded that amount in the levy for
general county purposes, refusing to
make any levy expressly for a gen.
eral road fund, thus making the rate
for general county purposes four mills
too high, all to the irreparable injury
OF the plaintiffs,
Again, as a third cause of suit the
plaintiffs, after describing themselves
as residents and tax payers within the
limits Of the Incorporated city Of Cot
tage Grove, aver, in substance. that
Cottage Grove by virtue of its charter
granted by the legislative assembly,
is a separate road district over which
the authority of the county court to
levy and collect road taxes does not
extend On the contrary, the city
alone, within its limits, has sole
power to levy and collect road taxes
and to apply them within its own dis
cretion In this connection they COM
plain that the action of the county
court In refusing to create general
road fund by tax for that specific
purpose and In paying the highway
expenses of the county out of the gen
eIdl lunu amounts TO double road tax
alton upon them and other tax payers
In Cottage Grove, all to their lrrepar-
able injury.
The defendants lnterposed a general
demurrer to the complaint which the
circuit court overruled and as they
stood upon their demurrer. the court
made findings of fact, which are
simply a recitation of the complaint,
and entered decree as prayed for
with costs From this decree the de-
PENDANTS have appealed.
Burnett, j. lnasmuch as the only
issue presented was an issue of law
1t is not apparent why the court
should go to the trouble of making
findings of fact and conclusions of
law thereupon, Unless there is an
Issue of fact 1t is wholly unnecessary
to make findings of fact as they only