City of Salem v. Marion County

36 P. 163, 25 Or. 449, 1894 Ore. LEXIS 36

• Court: Oregon Supreme Court
• Decided: March 13, 1894
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Lord.

1. The plaintiff claims that it was entitled to these taxes by virtue of section 36 of its charter, which is as follows: “The power and authority given by general law of the state to the county court of Marion County to divide said county into road districts, to appoint road supervisors, to lay out or work highways, to license the sale of liquor, and to grant ferry licenses, shall not apply or extend to the territory within the limits of the city of Salem; but said territory and the inhabitants thereof are hereby excepted out of the jurisdiction of said court upon said subjects; provided, however, that the street commissioner shall work the county road tax due from the inhabitants of the city on the streets, alleys, and bridges thereof after the manner prescribed by general law for road super1 visors, and he shall have the same power and authority to enforce the payment of such road tax in work or money as provided in such general law for road supervisors." By subdivision 4 of section 4085 of Hill’s Code, it is provided that “ In counties containing ten thousand inhabitants or over, the county court of such county in the state, at the time of leving taxes for county purposes, may levy a tax upon all the taxable property in its county, not to exceed two mills upon the dollar, and in addition thereto a poll tax of two dollars to be assessed upon every person who shall be liable to pay a state poll tax, which tax shall be collected with and at the same time and in the same manner as county taxes shall be collected, and shall be paid into the county treasury, and shall be kept as a separate fund to be known as the road fund, and shall be used for the purpose of laying out, opening, making, and repairing county roads and building and repairing bridges. Whenever the county court of any county shall levy a tax as aforesaid, no other tax nor other taxes for the purposes in this section mentioned shall be levied or collected. Such county court shall annually make an apportionment of the taxes so collected among the several road districts in the county, and direct the amounts so apportioned to be paid to the supervisors of roads therein. In making the apportionment the court shall have a due regard to the amount of taxes collected in the several road districts, to the condition of the roads and necessity for repairs, and to the amount of travel thereon.”

Under the general law the county court is authorized to divide the county into road districts, to appoint road supervisors, and to repair and work the roads or highways, etc.: Hill’s Code, § 4061, et seg. By subdivision 4 of section 4085, in counties containing ten thousand inhabitants or over, the county court is invested with jurisdiction to levy and collect a road tax not to exceed the amount specified therein, and, in addition thereto, a poll tax for road purposes in the same manner and at the same time as county taxes, which shall be paid into the county treasury and kept as a separate fund, and apportioned to the several road districts of the county in the manner therein indicated. As Marion County, in which the city of Salem is located, is a county containing over ten thousand inhabitants, all portions of it, including the territory of the city of Salem, are subject to the jurisdiction of the county court, except as qualified and limited by section 36 of the city charter. Under this section the territory comprising the corporate limits of the city of Salem is excepted out of the jurisdiction of the county court in respect to “the power and authority given by the general law of the state to the county court of Marion County to divide said county into road districts, to appoint road supervisors, to lay out or work highways,” etc., thereby leaving the jurisdiction given in subdivision 4 of section 4085 of the general law to the county officers, unaffected so far as the levying and collecting road taxes within the corporate limits of the city of Salem is concerned, except as qualified and limited by the proviso in said section 36 of its charter. This proviso requires that the street commissioner, who is an officer of the city, “ shall work the county road tax due from the inhabitants of the city on the streets, alleys, and bridges thereof after the manner prescribed by the general law for road supervisors, and he shall have the same power and authority to enforce the payment of such road tax in work or money as provided in such general law for road supervisors.” By reference to the general law it will be found that the road supervisors are invested with authority to cause the road tax to be worked out, or to enforce its payment in money, and are, therefore, the collectors of such road tax,- and as the street commissioner, under this proviso, is invested with the same authority, he is the collector of the road taxes, levied by the county, upon property within the city, and not the sheriff of the county. So that the effect of section 36 of the charter, is to limit and confine the jurisdiction of the county court under subdivision 4 section 4085 of the Code over the territory of the city to levy road and poll taxes as therein provided, leaving to the street commissioner the collection of such taxes, and hence the collection of them by the sheriff, and the payment of the same to the treasurer of the county, was without authority of law, and the county is bound to refund it to the party lawfully entitled to it. As a consequence, upon the facts as disclosed by this record, the county court, although it had j urisdiction to assess and levy the road taxes in question upon the property and inhabitants of the city, the sheriff of the county had no authority to collect such taxes and pay them into the county treasury, but the duty of attending to th© collection of the same devolved upon the street commissioner, who is an officer and agent of the city, and consequently the county has no lawful right to such taxes.

2. The principle that an obligation rests upon all persons, natural and artificial, to do justice, so that if a county obtain money or property of others without authority the law, independent of any statute, will compel restitution or compensation, is not questioned: Chapman v. County of Douglas, 107 U. S. 348, 2 Sup. Ct. 62. But it is claimed that there is no privity, statutory or contractual, between the county and city which would sustain an action for money had and received, and hence the county would not be justified in paying over the money in question to the city. As the street commissioner is an officer of the city, and as such authorized to collect such taxes, he is the agent of the city for their collection, and whether collected in work or money, such work must be performed or money expended upon the streets, alleys, or bridges of the city for the benefit of its inhabitants. The city, therefore, has the right to this money in order that it may be applied to the improvement and repair of its streets and bridges as the law directs. . For these reasons, we think that the judgment of the circuit court dismissing the writ and awarding costs and disbursements to the defendant must be reversed and the cause remanded for further proceedings not inconsistent with this opinion, and it is so ordered.

Reversed.