Moe v. Pratt, Sheriff

166 P.2d 479, 178 Or. 320, 1946 Ore. LEXIS 124

• Court: Oregon Supreme Court
• Decided: February 13, 1946
• Status: Published

Opinions

KELLY, J.

The first paragraph of plaintiff’s brief is as follows:

“This cause is before this court on a second notice of appeal filed after a first notice was abandoned by failure to file a transcript within the time required by law. This court has held repeatedly that the filing of a transcript within the time fixed, or some legal extension thereof is jurisdictional, and that the failure to effect an appeal in such manner exhausts the right to appeal. Plaintiff’s motion to dismiss nevertheless was denied without opinion. In the hope the court will clarify the rule invoked plaintiff herewith respectfully renews his motion to dismiss for failure to file a transcript within thirty days from the giving of notice of appeal.”

When plaintiff’s motion to dismiss defendant’s appeal was before this court, consideration was given to an affidavit made by the attorney who presented plaintiff’s oral argument when this case was heard by this court on its merits. In that affidavit, it is stated that plaintiff’s attorney prepared the decree entered by the trial conrt containing a recital that notice of appeal was given in open court. It also appears from said affidavit of plaintiff’s attorney that oral argument upon defendant’s demurrer to plaintiff’s complaint was waived and the cause was submitted upon briefs and that the form of the decree so prepared was discussed in the office of the deputy district attorney and approved by that officer who was then of counsel for defendant. The terms of said affidavit clearly disclose that no oral notice of appeal in open court was ever given in this ease by defendant or any attorney for defendant. There is no authority for substituting an oral agreement out of court for an oral notice of appeal in court and hence this court came to the conclusion that the only notice of appeal given in the instant case is the written notice. For this reason, plaintiff’s motion to dismiss defendant’s appeal was denied. For the same reason this court now adheres to that ruling.

Plaintiff’s complaint contains a recital of the following facts: That at all times mentioned therein defendant was and is the duly elected and acting sheriff and tax collector in and for Multnomah County, Oregon.

That on July 1,1942, and until on or about June 23, 1943, the county of Multnomah was the owner of the real property in suit; that the assessor of Multnomah County listed said real property on the 1943-44 assessment roll, made as of January 1, 1943, showing it exempt and owned by the county of Multnomah.

That on or about June 23,1943, the county of Multnomah entered into a contract for the sale of said real property to the plaintiff, which contract is in full force and effect.

That on or about July 15, 1943, said assessor without notice to plaintiff, altered the aforesaid assessment roll to show a purported assessment, set a valuation of $16,835.00 on the said real property, listing plaintiff as the owner thereof as of January 1, 1943, and caused a tax of $739.06 to be extended thereon and added to the 1943-44 tax roll of said county.

That on or about October 15,1943, the said tax roll, with a warrant for collection thereof, was delivered to the defendant for collection.

That on or about December 16, 1943, the assessor cancelled the purported assessment and the defendant corrected the said tax roll to eliminate the tax and show ownership in Multnobnah County; and that the defendant now threatens to restore the purported assessment and tax to said tax roll, or to make a new assessment of the said real property and extend a tax thereon for 1943-44 and to collect the same to the irreparable damage of plaintiff, and will do so unless restrained by this court.

To this complaint a general demurrer was interposed. The trial court overruled said demurrer and defendant declined to plead further, whereupon the trial court entered a decree in conformity with the prayer of plaintiff’s complaint.

It is urged that there is no provision of law in this state by which a tax may be levied and enforced for any fiscal year against property which on January 1, immediately preceding the fiscal year, was exempt from taxation even though as in the instant case before July 1 of that year, the ownership of such property became vested in an individual and therefore was no longer exempt from taxation.

This argument necessitates a consideration of several statutory provisions.

First, the policy of the taxation system affecting real property and tangible property is stated in section 110-101, O. C. L. A., thus:

“All real property within this state and all tangible personal property situated within this state, except as otherwise provided by law, shall be subject to assessment and taxation in equal and ratable proportion.” Oregon Laws 1941, chap. 440, section 1, p. 754.

That provision of the statute dissipates all thought that the real property in suit was not taxable for the fiscal year in suit and no claim to that effect is urged by plaintiff.

The fiscal year during which tax liens are effective begins on July 1 of the calendar year. Such is the mandate of section 110-829, O. C. L. A., as amended, which in so far as it is pertinent hereto, is as follows:

“All taxes lawfully imposed or levied on real or personal property, * * * shall be and hereby are declared to be liens on such real and personal property, respectively. Taxes on real property shall be a lien thereon from and including the first day of July of the year in which they are levied until paid and, except as otherwise specifically provided by law, such lien shall not be voided or impaired. Beal property subject to taxation on July 1 shall remain taxable and taxes levied thereon for the ensuing fiscal year shall become due and payable, notwithstanding any subsequent transfer of said property to an exempt ownership or use * * *.” Oregon Laws 1941, chap. 440, sec. 27, pp. 767-8, amending section 110-829, O. C. L. A.

Two provisions contained in the last sentence above quoted are relevant to the question before us, (1) that real property subject to taxation on July 1 remains taxable for the ensuing year; and (2) that the year ensuing is the fiscal year.

The only question then is whether or not there is any statutory provision for taxing real property which has not been properly assessed by the assessor, it being obvious that after the custody of the assessment roll for the fiscal year of 1943-44 had passed to the sheriff and tax collector, the assessor had no authority to add omitted property thereto and charge it and the owner thereof with the proper amount of taxes thereon.

Authority to correct the assessment or tax roll in that respect is conferred by the statute upon the officer having possession of the roll. In the instant case, the defendant herein as sheriff and tax collector is the officer having possession of such roll and is expressly given such authority.

We quote the following excerpt from Section 110-820, O. C. L. A.:

“ * * * whenever, at any stage in the collection of taxes, the officer having charge of the rolls shall discover errors or omissions of any kind therein, he may properly correct the same to conform to the facts in whatever manner may be necessary to make such assessment, tax or other proceeding whatsoever regular and valid, such correction to be made in red ink, or otherwise distinguished, and to be signed with the initials of the officer making the same and the date of such correction.”

Section 110-821, O. C. L. A., is as follows:

“Whenever, after the return of the assessment roll to the county assessor by the board of equalization, the officer having the possession of the roll shall discover or receive creditable information, or if lie has reason to believe that any real or personal property has, from any cause, been omitted, in whole or in part, in the assessment of any year or number of years not exceeding five years prior to the last roll so equalized and returned, or from the assessment roll or the tax roll, he shall proceed to correct the assessment or tax roll in his hands, and add such property thereto, with the proper valuation, and charge such property and the owner thereof with the proper amount of taxes thereon at the rate which the said property would have been taxed had it been properly upon the tax roll for the year or years as to which it was omitted; to enable which offer [officer] so to do he is hereby invested with all of the powers of the assessor, board of equalization and county clerk under the laws in force during such years and thereafter. But before making such correction or additions, if the persons claiming to own said property, or occupying it or in possession thereof, resides in the county and is not present, such officer shall give such person notice in writing of his intention to add such property to the assessment or tax roll describing it in general terms, and requiring such person to appear before him at his office at a specified time, within five days after giving such notice, and to show cause, if any, why such property should not be added to the assessment and tax roll; and if the party so notified does not appear, or if he appears and fails to show any good and sufficient cause why such assessment shall not be made, the same shall be made, and the officer making the correction or addition shall file in his office a statement of the facts or evidence on which he made such correction. The notice in this section provided may be given and served in the same manner and by the same persons competent to serve subpoenas. Appeal may be taken from the action of the officer in making the correction or addition by the person aggrieved within ten days after the action of such officer is taken, by giving notice to such officer and otherwise proceeding in the manner providing for appeals from the hoard of equalization.” Vol. 7, O. C. L. A. Section 110-821, pp. 1185-6.

Plaintiff contends that by virtue of sections 110-301 and 110-335, O. C. L. A., as amended, there is no method prescribed by statute by which real property, passing from exempt ownership to a taxable ownership subsequent to January 1, may be subjected to taxation for the fiscal year next ensuing.

Section 110-301, as amended, is as follows:

" The assessor of each county shall, immediately after the first day of January of each year, obtain from the state land board, from the world war veterans ’ state aid commission and each other state agency holding title to real property, and from the local United States land office, lists of public lands sold, or contracted to be sold, and of final certificates issued for lands in his county during the year ending at 1 o’clock a. m. of the said first day of January, and shall place such lands upon the assessment roll. It shall be the duty of the state land board, of the world war veterans’ state aid commission and of each other state agency holding title to real property to certify to the assessor a list or lists of all public lands in the county sold by it, or contracted to be sold, during such year. ’ ’ Oregon Laws, 1941, chap. 440, sec. 3, p. 756.

This section does not purport to prescribe an exclusive method of assessment. It merely authorizes the assessor to procure, and requires the state agencies mentioned to provide, certain information.

In so far as pertinent to the contention of plaintiff, section 110-335, O. C. L. A., as amended, is as follows:

“The assessor shall procure for the county a blank assessment roll, and forthwith proceed each year to assess the value of all taxable property within the county, except such as by law is to be otherwise assessed. (Italics supplied) Said assessor shall enter in such assessment roll a full and complete assessment of such taxable property, including a definite description of the real property owned by each person therein named, on January 1 of said year, at the hour of 1 o’clock a. m.” Excerpt from section 110-335, O. C. L. A., as amended by section 4 of chapter 440, Oregon Laws 1941, pp. 756-7.

Certainly section 110-335, O. C. L. A., as amended, does not provide an exclusive method of assessment. On the contrary, it expressly recognizes that there may be property that by law is to be otherwise assessed.

Manifestly, property exempt from taxation while the assessment roll for a given fiscal year is in the custody of the assessor may become, as in the case at bar, by reason of a transfer to taxable ownership, property that “by law is to be otherwise assessed”.

Bearing in mind that this case is before us only upon a general demurrer to plaintiff’s complaint which, in so far as indicating the proposed course sought to be employed, merely admits

“that the defendant now threatens to restore the proposed assessment and tax to said tax roll, or to make a new assessment of the said real property and extend a tax thereon for 1943-44 and to collect the same”,

we are not confronted with any question affecting the validity of a tax already imposed or of a sale thereunder; but merely with the question herein discussed, namely, whether there is any statutory authority for correction of the assessment roll by the sheriff and tax collector, while such officer has the possession of such roll, by adding such taxable property thereto as has for any cause been omitted in whole or in part therefrom.

We think the provisions of section 110-821, O. C. L. A., as amended, confer such authority and that authority is not abridged, minimized or revoked by any other provision of the statute.

For this reason the demurrer to plaintiff’s complaint should have been sustained.

The doctrine of the case of Portland v. Multnomah Co., 135 Or. 469, 296 P. 48, cited by plaintiff, is to the effect that no valid and enforceable lien is upon land owned by the city of Portland prior to March first. That case was controlled by the statute then in force, which provided that—

* * * “The taxes assessed upon real property shall be a lien thereon from and including the first day of March in the year in which they are levied until the same are paid.” Section 69-722, Oregon Code 1930.

As above stated, the statute applicable to the instant case substitutes July 1 for March 1 as the initial date of the tax lien, and expressly provides that real property exempt from taxation on July 1 shall remain exempt for the ensuing fiscal year notwithstanding any transfer within such year to a taxable ownership or use.

Following the procedure prescribed by the legislature in section 110-821, O. C. L. A., complies with the rule announced in Clark & Wilson Lumber Co. v. Weed, 137 Or. 186, 2 P. (2d) 12, cited by plaintiff, to the effect that, when the legislature determines the method or mode of levying a tax such procedure must be strictly observed. Dant & Russell, Inc. v. Pierce, et al., 122 Or. 337, 255 P. 603, seeks to enjoin payment of additional or supplemental tax. City of Eugene v. Keeney, 134 Or. 393, 293 P. 924, holds that certain real property owned by the city of Eugene was not exempt from taxa tion. Guthrie v. Haun, 159 Or. 50, 76 P. (2d) 292, holds that failure of assessor to assess separately each lot numbered from 7 to 21 inclusive, in Block B in Sproston’s Addition to the city of Wallowa did not invalidate the tax thereon. Martin v. White, 53 Or. 319, 100 P. 290, holds a tax title void because of insufficient description of the property and assessment in the name of one other than the true owners. Silverfield v. Multnomah County, 97 Or. 483, 192 P. 413, affirmed a decree of the trial court enjoining the collection from the plaintiff of a tax based upon a purported assessment of merchandise and stock in trade, the ground upon which the injunction was ordered being that plaintiff was not the owner or in possession of said merchandise and stock in trade. Taggart v. School District No. 1, 96 Or. 422, 188 P. 908, applies the rule that statutes in pari materia, that is those that are a part of a general system, relating to the same class of subjects are to be construed with reference to each other. Umatilla County v. Williams, 138 Or. 548, 6 P. (2d) 879, sets aside a tax deed based upon an irregular assessment made by the assessor of Umatilla County. Portland University v. Multnomah County, 31 Or. 498, 50 P. 532, decided in 1887, held that the county court was without authority to strike from the assessment roll prepared by the assessor property as exempt from taxation and that the board of equalization was without authority to determine whether property so assessed was exempt from taxation.

The ten decisions of this court, last above analyzed, constitute all of the cases cited by plaintiff. None of them construes or refers to an assessment made by the sheriff and tax collector. None of them indicates or suggests that the method prescribed for assessment by the assessor is the exclusive and only method authorized by the statute.

“In the absence of special statutory authority therefor, an officer or board of equalization or review cannot, it has been held, act as an assessing body and make an original assessment or add omitted property. However, by statute in many states, power is given to'designated officers or boards to add to the assessment lists taxable persons and property omitted by the assessors; and, where such statutes exist, the particular boards or officers therein specified may make such additions as are within the scope of the authority thus conferred.” 61 C. J., Subject, Taxation, p. 797, Section 1017, citing in note 13 to the point that such statutes are valid, many cases including Kirkwood v. Ford, 34 Or. 552, 56 P. 411, Ramp v. Marion Co. 24 Or. 461, 33 P. 681, Oregon Etc. R. Co. v. Lane Co. 23 Or. 386, 21 P. 964, Oregon Etc. Mtg. Savings Bank v. Jordan, 16 Or. 113, 17 P. 621; and Poppleton v. Yamhill Co. 8 Or. 337.

See also Southern Oregon Co. v. Coos County, 39 Or. 185, 192, 64 P. 646, and Ankeny v. Blakley, 44 Or. 78, 84, 74 P. 485. These Oregon cases last above cited were decided before the statute was enacted authorizing the officer having the possession of the assessment roll after its return by the Board of equalization to the county clerk to correct the assessment roll in his hands; but such authority was given the board of equalization by statute and recognized in the cases cited.

“Of the validity of a statute * * * providing generally for subjecting to taxation lands that have improperly escaped taxation in prior years, there can be no serious doubt.” Excerpt from the opinion of Mr. Justice Brewer in Winona & St. Paul Land Co. v. State of Minnesota, 159 U. S. 526, 40 L. Ed. 247, 16 S. Ct. 83.

The judgment and decree of the circuit court is reversed and this cause is remanded for such further proceedings as are not inconsistent herewith.