McKinney v. Watson

145 P. 266, 74 Or. 220, 1915 Ore. LEXIS 327

• Court: Oregon Supreme Court
• Decided: January 5, 1915
• Status: Published

Opinion

Mr. Justice Burnett

delivered tbe opinion of the court.

Tbe action in question, like most of tbe laws providing for government by commission, devotes much space to salaries and expenses of administration and other matters well calculated to make tbe taxpayer look askance. It authorizes tbe establishment of a corporation department, and that all fees, charges, interest, fines and penalties provided by tbe act itself or heretofore paid into the public treasury by foreign and domestic corporations, joint-stock companies, and associations shall go into a fund to be known as the “corporation fund,” which shall be liable for the expenses of carrying on the corporation department. It is required that whenever the amount of money in that fund shall exceed $15,000, all in excess of $10,000 shall be transferred by the State Treasurer to the general fund of the state.

1. The controlling question presented by the demurrer is the right of the plaintiff to bring this suit. It is well established by precedents in this state that a taxpayer whose enforced contribution to the public funds will be increased has a right to resist by litigation in his own name the enforcement of an unconstitutional statute, or the misapplication of public money. Instances of such decisions are found in Carman v. Woodruff, 10 Or. 133; 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); Brownfield v. Houser, 30 Or. 534 (49 Pac. 843); Burness v. Multnomah County, 37 Or. 460 (60 Pac. 1005); Sears v. Steel, 55 Or. 544 (107 Pac. 3); McKenna v. McHaley, 62 Or. 1 (123 Pac. 1069).

In our judgment, however, the allegations of the complaint are not sufficient to show that the plaintiff’s burden of taxation will be increased by the administration of the statute under consideration. That enactment contains various provisions designed to increase the revenues of the state in the form of fees exacted from concerns subject to its regulation. It is true that the license fees and other contributions demanded of corporations and like institutions by previous legislation are to be turned into the corporation fund, which is apparently designed to be kept at the standard of $10,000; the excess of that amount being returned to the general fund. "Whether this shifting of the public money from one fund to another and hack again will cause the plaintiff to pay more taxes than he otherwise would does not appear, if we remember the increment of revenue which the act provides. The plaintiff does not disclose that he is engaged in any business that is subject to the regulation of the act in question, and, in the absence of any showing of facts from which the court, can deduce the legal conclusion that he is about to suffer a greater burden of taxation then before, his contention appears to he a mere academic proposition.

2. The courts will not decide a moot question by enjoining a co-ordinate branch of the government from the execution of a law. It is of no concern to the plaintiff that corporations or business concerns with which he has no apparent connection may suffer illegal exactions under an unconstitutional statute. Under such circumstances sound public policy and due respect to the legislative and executive departments restrain the courts from interference with the operation of a statute at the instance of a private suitor, unless it appears that his personal interests are at stake.

For these reasons, the Circuit Court was right in refusing to entertain this suit, and the decree must be affirmed. Aeetrmed.