Burness v. Multnomah County

60 P. 1005, 37 Or. 460, 1900 Ore. LEXIS 101

Opinion

Mr. Justice Bean,

after stating the facts in the foregoing- words, delivered the opinion of the court.

1. It is contended that the plaintiff cannot maintain this suit, because he will suffer no direct and peculiar injury from the carrying out of the contract in question. It is the settled doctrine in this state that an individual taxpayer may, by a suit in equity, restrain and prevent the misapplication or illegal diversion of the public funds or property (Carman v. Woodruff, 10 Or. 133 ; White v. Commissioners, 13 Or. 317, 57 Am. Rep. 20, 10 Pac. 484; Wormington v. Pierce, 22 Or. 606, 30 Pac. 450 ; Sherman v. Bellows, 24 Or. 553, 34 Pac. 549; Avery v. Job, 25 Or. 512, 36 Pac. 293 ; State v. Pennoyer, 26 Or. 205, 37 Pac. 906, 41 Pac. 1104, 25 L. R. A. 862; State ex rel. v. Lord, 28 Or. 498, 43 Pac. 471, 31 L. R. A. 473; Brownfield v. Houser, 30 Or. 534, 49 Pac. 843); and we think plaintiff is within this rule. It is stipulated and agreed in the contract that all moneys which would otherwise go to the county on the redemption of lands sold for delinquent taxes for specified years, for “penalty, interest and redemption fees,’’ shall be paid to Noble. If, therefore, the contract is void, such payment would necessarily be a wrongful diversion and misapplication of the county funds, to the injury of every taxpayer. It is claimed, however, that, were it not for the contract with Noble, there would be no “penalty, interest or redemption fees’’ on delinquent taxes for the years specified. But the court is bound to assume that the county authorities will, in good faith, and without the added stimulus of a contract with a private individual, enforce the collection of delinquent taxes as required by law. The plaintiff, therefore, is entitled to maintain this suit, if the contract is void, as we think it is. It is not only, in effect, an agreement by the board of county commissioners to use the general governmental machinery in the collection of delinquent taxes for the benefit, primarily, of a private individual, but it undertakes to interfere with the discharge of the duties assigned by law to other officers, and is therefore beyond the power of the board of commissioners to make: City of Ft. Wayne v. Lehr, 88 Ind. 62 ; Smith v. Los Angeles County, 99 Cal. 628 (84 Pac. 439); House v. Los Angeles County, 104 Cal. 73 (37 Pac. 796).

2. The contract, as modified, stipulates, in substance, that the county court will order the issuance of an alias warrant for the collection of taxes of 1887 to 1895, inclusive, and will cause to be made out delinquent rolls or lists, to be corrected by using the. descriptions furnished by Noble of real property or mortgages to be sold for taxes, as the same appear on the deed and mortgage records of Multnomah County, and advertise and sell the real property and mortgages therein described ; that the proper county officers will bid in all property offered for sale for which there shall be no other bidders ; and that Noble shall have the right at any time to pay to the county clerk the amount for which any parcel has been sold, in which event the certificate shall be transferred and assigned to him. It is further provided that all collections shall be made through the clerk of the county court in the usual manner, Noble to act as the agent of the county, and to use all due and diligent efforts in the collection of taxes, “availing himself of the means and methods followed by him in the case of taxes which he bids in for himself or others.” On payment of any taxes, or redemption of the property sold, the county is to retain the amount of the tax and its costs, and all sums in excess thereof, including penalty, interest, and redemption fees, shall be paid to Noble, and shall constitute his compensation under the contract, provided that in no case shall his compensation be less than the penalties provided by law, and, if suit be brought against the county under the contract on account of the adding of descriptions to the assessment roll, as contemplated therein, Noble is to defend the same and pay the costs. Now, this statement of the several provisions of the contract is sufficient, in our opinion, to show its invalidity. In the first place, it undertakes to interfere with the duties of the county court, by providing in advance that an alias warrant for the col-' lection of delinquent taxes shall be ordered issued by that tribunal.' Again, it undertakes to interfere with the duties of the county judge, or his successor, by stipulating that he shall bid in for the county all property offered for sale under such alias warrants, for which there are no other bidders. These objections may be considered as formal and somewhat .technical.

3. A more serious and insurmountable one, however, is that the board of county commissioners undertakes by the contract to interfere with the duties of the county clerk, by stipulating how and from what data he shall make delinquent tax lists, when his duties in that regard are- specially prescribed by statute, and the board of county commissioners or county court has no control over him, except, perhaps, to see that he faithfully executes the duties of his office. The statute requires the county assessor to set down in the assessment roll ‘ a description of each tract or parcel of land to be taxed, specifying under separate heads the township, range, and section in which the land lies; or, if divided into lots and blocks, then the number of the lot and block ” (section 2770); and, after the necessary “alterations in the description of lands or other-property upon such roll ” has been made by the county court (section 2782), the county clerk is required, within a certain specified time, to deliver a transcript of the assessment roll to the sheriff, with a warrant attached for the collection of the taxes charged thereon (section 2794). If the sheriff shall be unable to collect the same, he is required to make out a statement of the taxes remaining unpaid, with a full and correct description of the real estate taxed, from Ms tax roll, and return the same to the county court, with the proper affidavit annexed, by the first Monday in April after the date of the tax list (sections 2809-2811). It is the duty of the county clerk, after the return of the delinquent list by the sheriff, and within ten days thereafter, to make “from said delinquent tax roll a true and correct list of the taxes returned as unpaid, and a correct description of the lands or town lots, if the same can be made ” (section 2814), and deliver the same to the sheriff of the county, with a warrant attached, commanding him to levy upon the goods and chattels of the delinquent taxpayer, and, if none be found, upon the real property set forth in the tax list, or so much thereof as may be necessary to satisfy the amount of taxes, costs, and expenses. It thus appears that there is no power or authority vested by statute in any person or tribunal to change the description of real estate contained in the assessment roll after it has been approved by the county court. But the contract with Noble provides that he shall prepare corrected descriptions of the real property to be sold for taxes, “ as the same appear on the deed and mortgage records of Multnomah County,” and, generally, to furnish “such facts and details as may be necessary, supplementary to the rolls and returns now on file or of record for the taxes of such years, as shall enable the proper officers to make out complete and correct rolls of such delinquent taxes, and of the properties to be sold therefor, so far as such facts can be ascertained from diligent and careful examination of the county records,” and the county agrees to make use of such data ; thus, in effect, providing for the alteration and changing of a public record, and the making of a new and false delinquent tax roll. Clearly, such a contract cannot be sustained.

The claim is made that, under the contract as modified, the only corrections contemplated of the descriptions of real estate contained in the roll were such as might be necessary to make them complete. The language of the contract in this regard is that “wherever said contract provides that rolls, lists, or other records shall be corrected, it is understood that ‘corrected’ shall mean only that the description now contained in said records may be completed, and that said rolls shall in all other respects be exactly copied, and no omissions or other alterations made therein, errors and omissions excepted.” What the parties meant by the word “completed” can only be gathered from the other provisions of the contract, from which it is quite clear that a change in the descriptions of real estate was contemplated. This is apparent from the entire contract, and is especially evidenced by the fifth subdivision of the modified contract, wherein Nobles agrees that, if suit be brought against the county “on account of the adding of descriptions to the assessment roll as contemplated therein,” he will defend and pay the costs of such suit. So we conclude the contract is susceptible of no other reasonable construction than that it contemplated an alteration and change, if necessary, in the descriptions of real property upon the delinquent assessment rolls for the years specified. It was further argued that under section 2814 the county clerk is authorized, in making up the delinquent list, 'to go outside of the roll for data from which to obtain a correct description of the land or town lots taxed. But it seems to us the plain and obvious meaning of the section is that the delinquent list shall be made from the delinquent tax roll as returned by the sheriff, and the description of the land or town lots be obtained from that source, and no other.

There are other provisions of the contract which naturally challenge attention, but sufficient has been noted to show its invalidity. It may be conceded that if Mr. Noble had been employed by the county commissioners to com pile information which other county officers could legitimately make use of in the performance of their duties, and had contracted to pay him a proper compensation therefor, such contract would be valid : Burnett v. Markley, 23 Or. 436 (31 Pac. 1050). But the work he engaged to do was not of that character. The decree of the court below is affirmed. Affirmed.