Oregon Railroad v. Umatilla County

81 P. 352, 47 Or. 198, 1905 Ore. LEXIS 119

• Court: Oregon Supreme Court
• Decided: July 3, 1905
• Status: Published

Opinion

Mr. Justice Bean

delivered the opinion of the court.

1. Sections 3084, 3085, B. & C. Comp., read as follows:

Section 3084 : “The county court of each county, or the board of commissioners thereof, shall, at its term in January in each year, estimate the amount of m.oney to be raised in its county for county purposes, and apportion such amount, together with the amount of state and school tax required by law to be raised in its county, according to the valuation of the taxable property in its county for the year, and such determination shall be entered at large in its records.”

Section 3085: “For the purpose of raising revenues for county purposes the county'court or board of county commissioners for each county in the State shall, at its January term in each year, levy a tax upon all taxable property in its county, which tax shall be sufficient in its amount to defray the expenses of the county.”

The plaintiff contends that by these sections it is the duty of the county court, before levying a tax, to make up an itemized estimate of the several amounts of money to be raised for county purposes, and to enter such estimate at large on its records, that such entry is jurisdictional, and a failure to make it will avoid the tax. Before levying a tax, the county court must necessarily make an estimate of the amount of money to be raised in order to determine the rate of taxation, and it is proper that such estimate should be entered of record, but we do not understand that a failure in that respect is fatal to the tax. The statute provides that after the estimate is made the county court shall apportion the amount thereof, together with the state and county taxes, according to the value of the taxable property in the county. Such determination shall be entered at large on the record, but this requirement is not jurisdictional, nor the measure of the power of the county to levy the tax. The authority to levy a tax is derived from Section 3085, and not from the one providing for the making of the estimate and apportionment and the entry of such determination in the journal. Section 3085 provides that the county court shall, at its January term in each year, levy a tax upon all the taxable property in the county, sufficient in amount to defray the expenses of the county ; and, while this levy must be based on the estimate required to be made under the previous section, its validity is not, in our opinion, dependent on the entry of the estimate in the journal.

The Louisiana cases (Waggoner v. Maumus, 112 La. 229, 36 South. 332, and Police Jury v. Bouanchand, 51 La. Ann. 860, 25 South. 653,) relied upon by the plaintiff are under a statute essentially different from ours. It requires the officers authorized to levy the tax to cause to be made out and published, for 30 days before their meeting to fix and determine upon the amount of the tax, an estimate exhibiting the various items of expenditure. The evident object of this requirement is to give the taxpayers information of the amount of the probable tax and the purposes for which it is proposed to be raised, and an opportunity to appear and object to any item in the estimate if they so desired. We have no such provision. The estimate is required to be made at the same term of court the tax is [levied, and there is no requirement for its publication or notice to the taxpayers The Illinois cases (Cleveland, C., C. & St. L. R. Co. v. People, 205 Ill. 582, 69 N. E. 89, and People v. Florville, 207 Ill. 81, 69 N. E. 623), involved-the construction of city charters, and are not applicable here. So that we think the tax levy as made was within the power of the court and valid. It was made at a time when all the members of the court were present and participated.

2. The fact — if it is a fact — that the journal entry of the order was not signed by the county commissioners at the time this proceeding was instituted is no ground for annulling or vacating the order. It was signed before any attempt was made by the county to enforce the tax as against the plaintiff, and that is sufficient.

3. The other objections made by the plaintiff all go to the sufficiency of the tax roll and to the description of plaintiff’s property as entered therein. It is doubtful whether any of these questions can properly be raised in this character of a proceeding. The statutory -writ of review is substantially the same as the common-law writ of certiorari, and will lie when an inferior court or tribunal has exceeded its jurisdiction or has exercised its judicial functions illegally and contrary to the course of procedure applicable to the matter before it. The object of the writ, says this court in Garnsey v. County Court, 33 Or. 201, 207 (54 Pac. 539, 1089), “is to keep inferior courts and tribunals within the bounds of their jurisdiction, and compel them to proceed regularly in the disposition of matters brought before them for determination; but it cannot be used as a substitute for an appeal, nor does it lie to correct mere errors in the exercise of rightful jurisdiction, or to inquire whether the rulings of the inferior tribunal upon the law and the evidence, and in the application of the law to the facts, are correct.”

4. Now, the county court did not exceed its jurisdiction in making the order levying the tax,- nor did it proceed illegally in so doing. It is invested with power to levy the tax by statute. It had before it, at the time the order was made, what purported to be, and what was in fact, an assessment roll, regularly made up by the county assessor. It is true the roll was not certified to by the assessor or any other officer, bat there is no law of which we are advised, requiring an assessment roll to be so certified. The statute provides that the assessor shall procure from the clerk a blank assessment roll, and forthwith proceed to assess all the taxable property within his county, and return such roll to the clerk on or before a certain time, with a full and complete assessment of such taxable property entered therein: B. & C. Comp. § 3057. When the roll is so made up and returned, it becomes a public document, and no formal certification or identification is required by the law. The county court necessarily determined, in levying the tax, that the roll before it was sufficient in law to authorize it to do so. It was in the exercise of a rightful jurisdiction, and it is doubtful whether mere errors of judgment or of law in holding the assessment roll sufficient can be corrected on a writ of review.

5. But, however this may be, we are of the opinion that the objections made to the assessment of plaintiff’s property are not sufficient to invalidate the entire assessment. The initials and word “O. R. & N. Co., The,” as used in the assessment roll, are a sufficient entry of the name of the taxpayer. The plaintiff is commonly known by such initials, and, indeed, it appeared in the tax proceedings and so signed petitions for a reduction in the valuation of its property.

6. It is not necessary that the name of a taxpayer should be entered in the roll opposite the assessment of each separate piece of property. It is enough that it is entered at the top of the page, or the commencement of the assessment, and there is- a list of property under appropriate heads, following such name, no other name intervening.

7. Nor does the fact that the assessor divided up the plaintiffs property and assessed it with reference to the several road and school districts and incorporated cities and towns invalidate the assessment. It was the only way the property could be assessed so that the levies for the several road and school districts could be extended on the roll.

8. The description of some of the property is not as definite and certain as it should be, and it may not be sufficient to support a title acquired at a tax sale, but this is no reason why the entire tax should be set aside in a a proceeding of this kind. If some of the means of collecting the tax cannot be made effective because of an imperfect description, it does not follow that the entire assessment will be declared void in a proceeding by certiorari or writ of review: State v. Haight, 35 N. J. Law, 178; State v. Collector of Jersey City, 24 N. J. Law, 108. The writ of review under our statute is practically the common-law writ of certiorari, and is a matter not of absolute right, but rests in the sound discretion of the court. When it appears in a proceeding instituted by an individual taxpayer to annul the tax assessed against his property, on account of some insufficiency or irregularity in the. manner of the assessment or the description of the property, that no equitable grounds exist for the allowance of the writ, it should ordinarily be denied, leaving the taxpayer to such remedies as the law otherwise affords him: Burnett v. Douglas County, 4 Or. 388; Woodworth v. Gibbs, 61 Iowa, 398 (16 N. W. 287); Knapp v. Heller, 32 Wis. 467.

9. There are many decisions to be found in the books in reference to the sufficiency of the description of property on tax rolls, but they are of little value in determining a particular case. Any description is good which would be sufficient in a deed of conveyance or in a contract to convey, and which affords a means of identification, and does not mislead, or is not calculated to mislead, the owner: B. & C. Comp. § 3057; Cooley, Taxation (2 ed.), 404); 1 Desty, Taxation, 567; 1 Blackwell, Tax Titles (5 ed.), § 223.

10. Extrinsic evidence, moreover, is admissible to identify the property, explain ambiguities, and aid in the interpretation of the description : Smith v. Shattuck, 12 Or. 362 (7 Pac. 335); Minter v. Durham, 13 Or. 470 (11 Pac. 231); Kelly v. Herrall (C. C.), 20 Fed. 364. If the property assessed is not described at all, or if the description used is so uncertain and indefinite as to be void on its face, there is, of course, no assessment, and any attempt by the county court to levy a tax would be void; but where there is an attempt to describe the property, and such description is not void on its face, or might, in the light of extrinsic testimony, be sufficient, the levy cannot be declared void on a writ of review.

11. Now, in this case, the description of certain lots in certain blocks in “Res. Add. Pend., City of Pendleton,” may or may not be a good description, according to the surrounding circumstances, and the same, we think, may he said of a certain number of miles of “R. R. Bed,” or “R. of W.,” or a one or two wire system of telegraph. The assessment to a railroad company of a certain number of miles of “roadbed”, is not void because of an insufficient description. The roadbed has a definite location, and there can be no uncertainty as to what property is meant, nor can there be any doubt that it can be found and definitely located from the description: Oregon & Cal. R. Co. v. Jackson County, 38 Or. 589, 604 (64 Pac. 307, 65 Pac. 369). To determine the sufficiency of the descriptions of property in the assessment roll before us, extrinsic proof is admissible and such proof cannot be had in a proceeding of this kind. The court cannot declare the descriptions void on their face.

12. Again, the statute makes a tax deed conclusive evidence of certain facts and presumptive evidence of others (B. & C. Comp. § 3127), and the county will be deprived of the benefit of these presumptions if the validity of the assessment can be attacked for a mere apparent defect in the description, by writ of review, before any attempt has been made to enforce the tax. The descriptions in this case were sufficient to apprise the plaintiff of the property intended to be assessed to it. It appeared before the board of equalization, and, without making any objection to the assessment on the ground of an imperfect description, or because property had been assessed to it which it did not own, applied for a reduction in the valuation of its property. Indeed, in such application it expressly recognizes that its depot grounds in Pendleton and 166.40 miles of roadbed and track had been properly assessed to it. It obtained a reduction in the valuation of the former, and an adjudication by the county court as to the proper valuation of the latter, and it is therefore not entitled to have the tax levies on such property vacated and declared void in this proceeding because of a defect in the description. It is the duty of a taxpayer to furnish the assessor a list of his real and personal property liable to taxation, and to make oath to such list: B. & C. Comp. § 3070. If th’e plaintiff furnished the list as required, it certainly cannot complain at this time of the insufficiency of the description. If it neglected or refused to do so, it ought not to be permitted to challenge by writ of review the sufficiency of the description as made up by the assessor, after treating such description as sufficient in the proceedings before the board of equalization.-

It is often said that proceedings for the assessment and levy of a tax are hostile to the taxpayer, and void unless in strict compliance with the statute. In a measure, and under some circumstances, this is true, but the doctrine ought not to prevail in a proceeding such as this, because, as said by Mr. Justice Cooley: “The proceedings in the assessment of a tax are not, in any proper sense, hostile to the citizen. They are, on the other hand, proceedings necessary and indispensable to the determination of the exact share which each resident or property owner ought to take, and may and ought to be supposed desirous of taking, in meeting the public necessity for a revenue — proceedings which the willingness of the taxpayer cannot dispense with, and which only become hostile when the duty to pay, once fixed, fails to be performed by payment. Then, and then only, do the steps taken by the government assume a compulsory form. Until then the reasonable presumption is that government and taxpayer will act together in harmony, and that the latter will meet his obligation to pay as soon as the former has performed its duty in determining the share to be paid”: Cooley, Taxation, 283, note.

From these views, it follows that the decision of the court below should be affirmed, and it is so ordered.

Affirm ed.