Daily capital journal. (Salem, Oregon) 1903-1919, 1913-10-04
No One Suffered Any Damage
as Result of Use Of Money
in Revolving Fund.
COMPLAINT INSUFFICIENT
Must Allege State Suffered by Trans
actiongin Order to Continue with
Suit, Says Court.


this morning sustained the demurrer
Of Governor Kay, Secretary of State
olcOtt and Treasurer Kay in the suit
brought by Attorney-Ceneral Crawford
in behalf of the state of Oregon, to
recover $4,000 alleged to have been
wrongfully expended in the sO-called
revolving fund of the state peniten
tiary. Judge Kelly takes the posi-
tion that the state was not damaged
by the use of the fund, made necessary
in operating the state brickyard, no
money was last and the complaint
fails to state facts sufficient to con.
stltrte caise of aclicn. He says in
his decision;
"In the casa of the State Of Ora.
gon against Oswald West and others,
wherein q demurrer was argued upon
yesterday to the comr'gjnt, it appears
from the complaint that the refendants
rtIe, respect .tly, Governor, Secretary
OF State aad State Treasurer Of tho
State Of Oregon. and It is charged in
the complaint that from the sale OF
iT'tk and tar rent Of the foundry
ilant of tho State p'l.tontiary there
VAS obtainel funds, which were placed
Ia tie STATE HrpsprJ and thereafter
d'awL from the state Treasury with
out warrant Of law and applied in the
payment Of claims for services render.
ed, material or supplies furnished and
land purchased at and for the Oregon
State Penitentiary, and it is contend.
ed by the defendants that there is no
allegation in the complaint of DANA
ges sustained by the state.
cit is sought to recover personal
judgment against the defendants. The
theory Of the complaint fails and it
is not to this court state Of facts
upon which this court can say that the
State has been damaged, and it is the
opinion Of the court that it is not
enough to charge an officer with
mere breach Of duty in order to OBJ
tain a personal Judgment against such
officer for such breach, but it must
appear that there resulted from such
breach damage to the party seeking
recovery.
at was argued by the state that
to say that warrants might be drawn
in defiance Of the constitutional inhibi-
tion against the drawing Of warrants
by the officers who might otherwise
be authorized to draw the warrants
and cash them for the purpose of OPP
Grating the penitentiary and paying the
claims for services rendered and ma
terial furnished would be tantamount
to giving a license to the officers to
purchase a railroad or buy a ship. It
is, in the mind Of this court, an an.
swer TO that contention to say that
II you were seeking to recover a judg.
ment against an officer Of this ship,
it would not be sufficient to allege
that the railroad or the ship had been
bought, but IL is the opinion of this
court it should be stated that the state,
or the party seeking the Judgment, suf.
fered damages, and there is no such
allegation as that in this complaint,
There Is no general allegation Of dam.
age, and the allegation of application
Of funds to the payment Of claims men.
TONED in the complaint is, in the OPP
inion Of this court, refutation that
the state has suffered any damage.
For these reasons the demurrer to the
complaint will be sustained.
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