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Chemical Waste Storage and Disposition Inc. v. Day

September 4, 1973

CHEMICAL WASTE STORAGE AND DISPOSITION, INC., APPELLANT,
v.
DAY AND MANN, RESPONDENTS



Appeal from Circuit Court, Washington County. Glen Hieber, Judge. No. 32-963.

Paul M. Reeder, Hillsboro, argued the cause for appellant. With him on the briefs were Reeder & Rapp, Hillsboro.

Edward H. Warren, Portland, argued the cause for respondents. With him on the brief were Hershiser, Mitchell & Warren, Portland.

Foley, Judge. Schwab, Chief Judge. Fort, Judge, specially concurring.

Foley

Plaintiff appeals from a judgment dismissing plaintiff's amended complaint after an order sustaining defendants' demurrer. The trial court set forth as its reason for sustaining the demurrer "that defendants are immune." A demurrer properly raises the issue

of immunity. Smith v. Cooper, 256 Or 485, 488, 475 P2d 78, 45 ALR3d 857 (1970).

The amended complaint sets forth the following facts, which for demurrer purposes are assumed to be true.

1. Plaintiff is an Oregon corporation doing business in Oregon. Defendant Day is the Director of the Department of Environmental Quality. Defendant Mann is the Director of the State Department of Agriculture.

2. For some time prior to June 30, 1972, plaintiff was engaged in transporting residues from Rhodia, Inc., Chipman Division in Portland, and from other chemical companies to a site owned by plaintiff in Lake County, Oregon, commonly known as Alkali Lake. Plaintiff was conducting such business under a State Department of Agriculture permit issued under the authority of ORS 634.330 (1969).

3. On or about December 8, 1971, the defendants drafted a directive, or order, which was served on plaintiff and on Rhodia, Inc., Chipman Division.*fn1 The

thrust of the order was that plaintiff was to cease transporting chemical residues to its site in Lake County.

4. As a result of the order, Rhodia, Inc., Chipman Division, refused to allow plaintiff to transport its chemical residues to plaintiff's site. As a result plaintiff was damaged in the amount of $32,000.

5. Defendants Day and Mann knew, or in the exercise

of due care should have known, that they had no authority as directors of their respective departments to issue the order, and the complaint further alleged that they did so "wickedly, wantonly and maliciously with the intent to require the plaintiff to submit to their personal demands and their personal will."*fn2

The complaint also asserts that the defendants acted entirely outside the scope of their authority in issuing the order. Plaintiff urges that, since for purposes of the demurrer, all well-pleaded facts are admitted,

we must take it as admitted that defendants did indeed act beyond the scope of their authority. On the contrary, the assertion is a conclusion of law, not a statement of fact. One of the questions of law to be resolved here, in fact, is whether the defendants' action was beyond the scope of their authority as directors.

"* * * Conclusions are ignored when a pleading is tested by a demurrer. * * * When a pleading is tested in that manner, there are counted in its favor only the facts that are well pleaded. * * *" Baker Hotel v. ...


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