Multnomah County v. Title Guarantee Co.

80 P. 409, 46 Or. 523, 1905 Ore. LEXIS 72

• Court: Oregon Supreme Court
• Decided: April 10, 1905
• Status: Published

Opinion

Mr. Justice' Bean

delivered the opinion of the court. .

The ground upon which the plaintiff bases its right to repudiate and rescind the compromise or settlement between its board of county commissioners and the defendants are mainly as follows: First, the board had no authority to make the agreement or settlement, because (a) no such power is conferred upon it by law; (b) other public corporations besides the county, such as the Port of Portland, the City of Portland, and the school district, had interests in the tax certificates, which the county could not surrender or dispose of; and (c) the act authorizing the county to purchase property at a delinquent sale provides that it shall hold the title subject to redemption, thus impliedly prohibiting the taxpayer from relieving himself from the effect of the sale in any other manner; second, the compromise included taxes and tax certificates not involved in the suit then pending between the plaintiff and the defendants, and which were not mentioned' or referred to in the proposition of Ross for settlement; and, third, the offer or proposition of Ross contained statements .and representations which were not accurate.

1. It cannot be doubted, we think, that the agreement between the board of commissioners and the defendants to compromise or settle the controversy or dispute concerning the tax certificates held by the plaintiff, and the litigation then pending in reference thereto, is a valid and binding compromise and settlement, in view of what has been done under it, and the impossibility of restoring the parties to their former positions and rights, if the county commissioners had power to make it. There wa's at the time a bona fide dispute as to the validity of the taxes and tax certificates, and as to the rights of the county thereunder. A large part of these certificates were actually in litigation, and the validity of the others was denied. There was therefore sufficient consideration to support the compromise, agreement: Smith v. Farra, 21 Or. 395 (28 Pac. 241, 20 L. R. A. 115).

2. There is no charge that it was fraudulently made, but it was made in good faith, and has been executed. The money which the board of commissioners agreed to accept in full satisfaction of the rights of the plaintiff has been paid and retained. The appeal of the defendants then pending has been dismissed, and the decree of the circuit court become final. It is therefore too late for the county alone to repudiate the contract. The rights of the parties have become fixed, and they cannot be unsettled by one alone. If the plaintiff could rescind at all, it could not be done without restoring to the defendants what it had received under the agreement, and putting them in the position they were before the agreement was made — a manifest impossibility, as their rights under the then pending appeal cannot be restored. It would, be unconscionable, therefore, for the plaintiff, if the board of commissions had power to make the agreement, to retain the fruits thereof, and, after the appeal of the defendants had been dismissed, and the decree of the circuit court adjudging the certificates to lie valid had become final, to absolve itself from the burdens and obligations of the contract.

3. Nor does the fact that the compromise settlement or agreement included taxes and tax certificates not referred to in the proposition of Eoss, nor involved in the pending litigation, alter the question. In mailing the settlement the county commissioners were, not acting as a court, hut as a mere financial or business agent of the county; and the contract actually made by them with the defendants, if they had power to make it, is binding, in the absence of fraud, although it may include matters outside the proposition of Eoss and the pending litigation. Eoss7 petition was a mere proposition for a settlement of the controversy between him and the county, stating the terms upon which he was willing to make it. It was nothing more than merely opening negotiations on the subject, and the result of such negotiations is to be ascertained from the contract as actually-made, and not from the initiatory proposition therefor. The question is not to be determined as if we were considering a judgment or decree of a court outside the issues, or an award of arbitrators outside the. contract of submission, but rather as an ordinary contract or agreement between parties. County commissioners, in transacting the business of the county, and in the care and management of its property and funds, do not act as a court, but as a financial or managing agent of the county, precisely as an agent of a private corporation in the management of its financial concerns, and all contracts made by them within the power conferred are subject to the same rules: Stout v. Yamhill County, 31 Or. 314 (51 Pac. 442); Frankl v. Bailey, 31 Or. 285 (50 Pac. 186). Nor is it of any consequence that the statements in the written proposition of Ross for the settlement as to the amount of taxes, tax certificates, etc., were not correct. There is no charge that they were made knowingly or for a fraudulent purpose, or with intent to deceive, or that the board of commissioners was in any way misled thereby. Indeed, it is difficult to understand how the commissioners could have been deceived, as all the matters referred to, and concerning which the parties were negotiating, were a part of the county records, and the commissioners knew or were charged with knowledge of the amount of the taxes and tax certificates held by the county, without relying on the statements of Ross or any one .else.

4. We pass then to the question as to whether the board of county commissioners had power to make the compromise agreement and settlement with the defendants. This question does not, as seems to have been assumed, necessarily involve the power or authority to compromise or agree with the owner of property to accept in satisfaction of taxes an amount less than that levied or attempted to be levied against the-property. In this case all the taxes had become delinquent, and the property had been sold and purchased by the county under the provisions of the act of 1893 (Laws 1893,. p. 28), and had therefore “become the property of the county, * * subject to redemption as provided by law.” By such a purchase a county acquires an interest in or a specific lien upon the property (Berger v. Multnomah County, 45 Or. 402 (78 Pac. 224), which is, of course, a valuable property right. The title and right of the plaintiff, however, under the purchase made by it, were in dispute. A large part of the tax certificates were in actual litigation, and the validity of the remainder was denied. In making the contract of settlement, therefore, the board of commissioners were dealing with property rights belonging to the county, and which were in dispute and litigation. It is difficult to discover any legal principle which will deny to them the power to compromise and settle such a controversy, when, in their judgment, the best interests of the county require it. It would be unreasonable to hold that because a county, by direct legislative requirement, involuntarily becomes possessed of tax certificates which are of doubtful validity, and which involve and threaten to involve it in extensive and protracted litigation, it must go through such litigation, without the power of extricating itself therefrom by an honest and bona fide agreement with its adversary. Each county of the State is a body corporate, having certain prescribed powers. Among these is the power “to sue and be sued; * * to make all necessary contracts, and to do all other necessary acts in relation to the property and concerns of the county”: B. & C. Comp. § 2518. All actions, suits or proceedings by or against a county are in the name of the county, but it is represented by the county court, which has authority and power to conduct and direct the proceedings therein as if it were plaintiff or defendant: B. & C. Comp. § 913. The powers of a county as a body politic can only be exercised by the county judge and the commissioners sitting for the transaction of county business, or by a board of county commissioners, who are, so to speak, a hoard of directors or managing agents of the corporation, which is the county, and, as such, “have the general care and management of the county property, funds, and business, where the law does not otherwise expressly provide” (B. & C. Comp. § 912, subd. 9), and the “power to compound for and release in whole or in part any debt or damages arising out of contract due the county, and for the sole use thereof, upon such terms as may be just and equitable”: B. & C. Comp. § 912, subd. 10. It seems to us these provisions of the statute plainly conferred full power and authority upon the board of county commissioners to settle and adjust the pending controversy between it and the defendants as to the validity of the tax certificates held by the county, and the rights of the respective parties thereunder.

Such seems to be the power of the county boards in other states under similar statutory provisions. Thus in Wisconsin the statute provides that the county board shall have authority “to make such orders concerning the corporate property of the county as they may deem expedient”; to “settle and allow all accounts, or demands, or causes of action against the county”; and to “have the care of the county property and the management of the business and concerns of the county in all cases.” It was held there that under these provisions the county board had authority to settle and compromise a dispute or controversy between its county and an adjoining county as to the ownership of certain tax certificates, somewhat similar to the ones in question here (Hall v. Baker, 74 Wis. 118, 42 N. W. 104), and to compromise and settle a judgment against the county treasurer and his bondsmen for public moneys lost through depositing the same in an insolvent bank: Washburn County v. Thompson, 99 Wis. 585 (75 N. W. 309). In the case just referred to it is said that the power of the managing officers of a county to compromise and settle disputed or doubtful claims against the county is a necessary incident to the right to sue and be sued, and that such power exists and may be exercised at any time before the validity of the claim is fixed by final judgment, and thereafter in case of the insolvency of the debtor, citing 1 Beach, Pub. Corp. §§ 638, 639, and 1 Dillon, Mun. Corp. § 477. Missouri has a similar statutory provision as to the ¡Dower of the county courts, and in St. Louis, I. M. & S. Ry. Co. v. Anthony, 73 Mo. 431, it was held that a county court may compromise and settle a judgment in favor of the county and against a taxpayer for taxes, which judgment had been reversed and remanded; the court saying: “The power to sue implies the power to accept satisfaction of the demand sued for, whether the precise amount demanded or less. The taxes were levied for the benefit of the county. The beneficial interest was in the county, and it is for the public interest that she should have the Tight to settle by compromise questionable demands which she may assert. Must the county prosecute doubtful claims at all hazards, regardless of costs and expenses, and is it for the public good that the right to settle such demands by compromise be denied her ? As was said by the Supreme Court of New York in the case of Board of Supervisors v. Bowen, 4 Lans. 31: cIt would he a most extraordinary doctrine to hold that, because a county had become involved in a litigation, it must necessarily go through with it to the bitter end, and has no power to extricate itself by withdrawal or by agreement with its adversary.’ The same doctrine was sanctioned in Supervisors v. Birdsall, 4 Wend. 453.”

The statutes of Iowa defining the powers and authority of the board of supervisors are substantially in the same language as B. & C. Comp. § 912, subd. 9, relating to county courts. It was held, that the board of supervisors, if acting in good faith, had authority, under the powers thus 'conferred, to compromise a judgment in favor of the county for taxes, although the taxpayer was - solvent and the judgment had become final (Collins v. Welch, 58 Iowa, 72, 12 N. W. 121, 43 Am. Rep. 111), and to compromise a pending action against the county for alleged services by conveying to the claimant certain swamp land belonging to the county (Grimes v. Hamilton County, 37 Iowa, 290), and to contract with a person to procure title to the county from the government to swamp lands, and, as compensation therefor, to have a part of the lands so secured: Allen v. Cerro Gordo County, 34 Iowa, 54. The statute of South Dakota declares that the board of county commissioners “shall superintend the fiscal affairs of the county and secure their management in the best manner.” From this statutory injunction it was held implied authority was granted to dispose of and sell, in good faith and for value, outstanding, overdue and uncollectible promissory notes belonging to the county; the court saying: “The board, being charged exclusively with the management of all fiscal affairs pertaining to the county, has authority, unless restricted by the legislature, to do that which the county might perform if an entity and capable of rational action; and the proposition carries with it authority to compromise in an honest manner a disputed or doubtful claim in favor of or against the municipality: State v. Davis, 11 S. D. 111 (75 N. W. 897, 74 Am. St. Rep. 780). Such authority is an incident to official capacity and the power to institute, prosecute, and defend suits”: Brown County v. Jenkins, 11 S. D. 330 (77 N. W. 579). Bearing more or less directly upon this question, and tending to support the conclusions indicated, the following cases are cited: Board of Orleans County v. Bowen, 4 Lans. 24; Town of Petersburg v. Mappin, 14 Ill. 193 (56 Am. Dec. 501); Fitzgerald v. Harms, 92 Ill. 372; Agnew v. Brall, 124 Ill. 312 (16 N. E. 230); Board v. Saunders, 17 Ind. 437; Supervisors v. Birdsall, 4 Wend. 453; City of Buffalo v. Bettinger, 76 N. Y. 393; McCredie v. City of Buffalo, 2 How. Prac. (N. S.) 336; O'Brien v. Mayor, 40 App. Div. 331 (57 N. Y. Supp. 1039); Woods v. Supervisors of Madison County, 136 N. Y. 403 (32 N. E. 1011). From these authorities — and there seem to be none to the contrary — it is clear that, under the various provisions of the statute, the board of commissioners had power to make the compromise agreement or settlement sought to be canceled and annulled in this-suit, unless some of the arguments of plaintiff hereafter noticed are sound.

5. It is insisted that the power given a county court by B. & C. Comp. §912, subd. 10, to compound for and release in whole or in part, any debt or damages resulting out of a contract due the county, is equivalent to an implied denial of the power to compromise or settle any controversy or dispute arising in- any other way. This position is grounded on the familiar rules of interpretation of statutes and contracts — that the expression of one thing excludes any other. This is a mere rule of interpretation, and, as said by Mr. Broom in his work on Legal Maxims (8 ed. *653) : “Great caution is requisite in dealing with it, for, as Lord Campbell, Ch., observed in Saunders v. Evans, it is not of universal application, but depends upon the intention of the party as discoverable upon the face of the instrument or of the transaction. Thus, where general words are used in a written instrument, it is necessary, in the first instance, to determine whether those general words are intended to include other matters besides such as are specifically mentioned, or to be referable exclusively to them, in which latter case only can the above maxim be properly applied.” Mr. Endlich says, Endlich, Interp. Stat. § 398: “If there is such a rule, it is confessedly liable to so many restrictions and exceptions in its application as to be practically swept away. Indeed, the extreme caution necessary in its application is emphasized wherever it is recognized by writers.” Whether the expression of one thing in a statute is to operate as an exclusion of all others is a mere question of intention, to be ascertained by the usual means and rules of interpretation. For this purpose the. maxim invoked becomes important. “It means,” says Mr. Endlieh, “that the special mention of one thing indicates that it was not intended to be covered by a general provision which would otherwise include it” (Section 399), and, “as applied to the construction of statutes, certainly cannot mean that, where one thing is allowed or named, every other thing is forbidden or excluded”: Section 397. The rule may be applied in cases where there is a bare enumeration of powers, without any provision conferring a general power. For example, if there was no general power conferred upon the board of county commissioners in relation to the management and control of the fiscal affairs of the county, it might be said that the law giving them authority to compromise or compound a certain character of controversies would be equivalent to an intention of the legislature. to exclude the power to compromise all other cases. But the powers given by Section 2518 and by Subdivision 9 of Section 912 are so broad as to clearly indicate that the legislature never intended to confine the cases in which the county courts might settle and adjust controversies between the county and other persons to the narrow limits mentioned in Subdivision 10 of Section 912. To deny the county court or the board of commissioners this right or power would be to deprive them of authoritjr to act in numerous instances where the best interests of the county would be subserved, and require them to pay unjust and invalid claims against the county, or defend to a final conclusion all suits or actions brought against the county, without regard to the probability of a successful termination thexeof, and contrary to its best interests. It is not to be supposed that the legislature intended so to circumscribe and restrict the powers of the county court in the management of the general fiscal and business affairs of the county.

6. It is also contended that the board of county commissioners had no authority to make any compromise in regard to the tax certificates, because they included taxes of other corporations— notably, the City of Portland, the Port of Portland and the school district. The law of 1893,. authorizing the county judge to buy in property at delinquent tax sales, declares that when so purchased it will become the property of the county, subject to redemption, as provided by law. By such a purchase the county acquires an interest in or liens upon the property for the taxes assessed against it (Berger v. Multnomah County, 45 Or. 402, 78 Pac. 224), and we think it holds the same in trust to account to the other interested corporations for their proportions or shares of the taxes realized therefrom. The ownership of the interest and lien acquired by the purchase is, however, entirely vested in the county, and any disposition made of it or any redemption is placed 'exclusively under its control. This is a rational view of the act of 1893, and is the one given it by the subsequent act of 1901, which it was held in Berger v. Multnomah County, 45 Or. 402 (78 Pac. 224), was an important aid in ascertaining the intention of the legislature in the passage of the former act.

7. Again, it is claimed that the provision in the act of 1893 that the land purchased by the county shall be “subject to redemption as provided by law” is an effectual limitation upon the power of the county to deal with the tax certificates in any way except to allow a redemption, and denies to a taxpayer the right to settle or compromise with the county and relieve his property from the effect of the sale in any way other than by such redemption, however doubtful or uncertain the validity of the lax proceedings may be. We cannot agree in this view. It seems to us that the plain'purpose of the clause referred to was to preserve to the taxpayer the right of redemption, and not to limit or restrict the powers of the county court or of the taxpayer to deal with the tax certificate. The statute provides that, upon the purchase of the land, it shall become the property of the county; and, without some provision as to redemption by the taxpaj'er, his rights to the property would probably be completely ■barred by the sale. The redemption clause was intended for his benefit, and to give him a specific time after the sale in which to become repossessed of his property by redemption, but it does not prevent him from compromising or settling a dispute as to the validity of such sale or tax proceedings with the county authorities.

For these reasons, the decree of the court below will be reversed, and the complaint dismissed. Eeversed.