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Porter v. Tiffany

November 17, 1972

PORTER, APPELLANT,
v.
TIFFANY ET AL, RESPONDENTS



Appeal from Circuit Court, Lane County. Edwin E. Allen, Judge. No. 101273.

Charles O. Porter, Eugene, in propria persona, argued the cause and filed the briefs for appellant.

Windsor Calkins, Eugene, argued the cause for respondents. With him on the brief were Calkins & Calkins, Eugene.

Foley, Judge. Langtry, Presiding Judge, and Fort, Judge.

Foley

Plaintiff brought this action as a taxpayer under ORS 294.100*fn1 to require the five commissioners of the Eugene Water and Electric Board (EWEB), a municipally owned utility, to personally reimburse EWEB for expenditures of $6,710.38 in 1968 and $6,608.13 in 1970. These funds were expended by the defendants in connection with two election measures. The 1968 measure involved authorizing the issuance and sale of $225 million in bonds to allow EWEB to participate in a nuclear power program. The television and radio

time, newspaper advertising, voter surveys and other materials purchased by EWEB with the disputed funds strongly advocated a favorable vote on the referendum. The 1970 election involved an initiative measure to delay the construction of a nuclear power plant for four years. In the latter instance EWEB's expenditures were for similar materials advocating the defeat of the initiative measure.

After hearing testimony and arguments of counsel, the trial court rendered judgment in favor of defendants. The court made a general finding in favor of defendants. However, oral findings made by the court from the bench show that the decision rested on a finding that the board members' actions were not arbitrary and capricious. The trial court concluded that the board members had acted in good faith and on the advice of counsel, and that they had made an effort to ascertain other points of view before advocating their position. Finally, the court indicated its feeling that this sort of matter is a political question, and that voters might avail themselves of recall procedures if they did not approve of the officials' actions.

We are persuaded that the trial court's decision was erroneous.

ORS 294.100 (2) provides that "[a]ny public official who expends any public money in excess of the amounts, or for any other or different purpose or purposes than authorized by law * * *" shall be civilly liable in a suit such as that involved in this case. The trial court concluded that the funds involved in this situation were "public money" within the meaning of the statute; this conclusion is supported by the weight of authority. 63 Am Jur2d 394, Public Funds § 1; 50 CJ 854, Public § 40; City of Bessemer v. Personnel

Board, 240 Ala 411, 199 So 815 (1941). As the California Supreme Court stated in Mines v. Del Valle, 201 Cal 273, 279-80, 257 P 530 (1927):

"If money belonging to the city is illegally paid out by its officers, the inevitable result would be a detriment to the taxpayers of said city * * * The fact that the funds unlawfully withdrawn from the public treasury were not raised by direct taxation, but represented receipts from a ...


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