School District No. 24j v. McCarthy

418 P.2d 817, 244 Or. 379, 1966 Ore. LEXIS 461

• Court: Oregon Supreme Court
• Decided: September 28, 1966
• Status: Published

Opinions

GOODWIN, J.

This is an original proceeding in mandamus. We took jurisdiction because of the public importance of the question (tax levy for school purposes) and because of the need for a prompt determination of the controversy.

■ The alternative writ, to which a demurrer has been interposed, alleges that' unless this court orders the defendant county officials to change the 1966-67 tax levy the proposed Marion County levy will be illegal and will deprive the plaintiff school district of revenue to which it is entitled. The only issue is the proper construction of certain statutes, to which we now turn.

Until 1965, and for many years prior thereto, the relevant statute, now designated as ORS 328.005, provided in substance as follows:

“To create a county school fund, each county court shall levy, at the same time other taxes are levied, a tax for school purposes upon all taxable property of the. county. The tax shall produce least $10 per capita for all children within the county between the ages of 4 and 20 years, as shown by preceding school census * * (Italics supplied.) ■ - ;" ■' 1

In 1951, the tax-levying officials of Lane County had attempted to offset against the levy required by the foregoing statute an amount of money to be received by Lane County from United States forest-reserve rentals pursuant to §§ 107-711 through 107-714, OCLA, inclusive (now ORS 293.560

① and 294.060②). We held that in the absence of amending legislation the federal revenues in question could not be offset against the school levy, but were to be disbursed to the schools over and above the proceeds of the levy. School District No. 4 v. Bayly et al., 192 Or 548, 235 P2d 911 (1951).

In that opinion, a dictum pointed out that the statute as then written expressed the intent that the tax so levied should “aggregate” the amount ($10 per child) and could not be read to mean that the tax plus moneys derived from other sources should “aggregate” the designated amount. We observed that to construe the statute as the Lane County commissioners wanted it construed would require us to read into the statute the phrase “with other receipts” or similar language. 192 Or at 552.

After the decision in School District No. 4 v. Bayly et al., supra, the statute remained in substantially the same form until 1965 when the Association of Oregon Counties sponsored the amending legislation which has given rise to the case before us. Oregon Laws 1965, ch 491, § 1. The new OES 328.005 reads as follows:

“To create a county school fund, the governing body of each county shall provide annually, by levy upon all taxable property of the county, or otherwise, an amount at least equal to the lesser of:

“(1) The minimum amount it was required to levy for the purposes of the county school fund in the tax year 1965-66; or

“(2) Ten dollars per capita for all children within the county between the ages of 4 and 20 years, as shown by the preceding school census.” (Italics supplied.)

During the early months of 1966 the appropriate officials of the various counties began work on their budgets and tax levies. Apparently one or more counties which contemplated the receipt of federal forest rentals again saw these receipts as a possible offset against taxes, and requested advice from the Attorney General. That office rendered conflicting opinions upon the effect of the new statute.

Marion County officials proceeded with their plans for the 1966-67 levy, relying upon the “or otherwise” clause of ORS 328.005 to permit the use of the timber money as an offset against the levy.

A comparison of ORS 328.005 before and after its amendment, and in light of the opinion in School District No. 4 v. Bayly et al., leads to the conclusion that the Legislative Assembly intended by the amendment to make possible some set-off against the county levy. Whether or not the amendment was a desirable one as a matter of public policy is, of course, a question which only the Assembly or the voters can decide. It is not a judicial question.

In view of our conclusion that the Assembly intended to permit the counties to set off revenues from other sources against the mandatory levy, the only remaining question is whether revenues distributed under ORS 293.560 and 294.060 are such as to be properly included within the “or otherwise” clause.

The plaintiff school district contends that ORS 293.560 and 294.060 indicate a legislative direction to use the forest-reserve funds for school purposes over and above any other revenues the counties may receive for such purposes. This was certainly true prior to the 1965 amendment of ORS 328.005. However, the amendment must be read in light of the Bayly case, and when so read ORS 328.005 does not conflict with ORS 293.560 or 294.060, but is entirely in harmony with those sections.

If the school districts are injured by the interpretation placed upon ORS 328.005 by the county officials, their remedy lies in the Legislative Assembly. There is no basis for a peremptory writ of mandamus in this case. The demurrer must be sustained.

It will be the judgment of this court that the alternative writ be dismissed.

ORS 293.560 “(1) All sums received by the state from the United States Government as its distributive share of the amounts collected by the United States Government for forest reserve rentals, sales of timber, and other sources from forest reserves •within the State of Oregon, shall, upon receipt, be distributed among the several counties in which such forest reserves are located.

“(2) The Secretary of State shall ascertain from the proper United States officers having the records of receipts from forest reserves, the amount of receipts from each forest reserve in this state for each year for which money is received by the state. A separate account shall be kept of the sum received from each forest reserve, which sum shall be paid only to the county or counties in which the forest reserve is located. Each county shall receive such proportional amount of the sum as the area of the forest reserve included within the boundaries of the county bears to the total area of the forest reserve within the state. The Secretary of State shall in all cases when possible make all computations upon the net areas of such forest reserves according to the data furnished by the federal officials.”

ORS 294.060. “(1) The moneys received by each county under ORS 293.560 shall be divided 75 percent to the road fund and 25 percent to the school fund of the county and shall, subject to subsections (2) and (3) of this section, be expended as other moneys in those funds are expended.

“(2) The moneys so apportioned to the county road fund may be applied in payment of any outstanding road bonds or may be placed in any county road bond sinking fund for the purpose of being so applied.

“(3) The moneys so apportioned to the school fund in any county operating under and by virtue of ORS chapter 333 shall be used for and applied to the payment of the bonded and warrant indebtedness of the school districts incurred prior to January 1, 1925, until such bonded and warrant indebtedness has been paid in fun.”