State Ex Rel. Van Winkle v. Siegmund

266 P. 1075, 125 Or. 197, 1928 Ore. LEXIS 133

• Court: Oregon Supreme Court
• Decided: January 27, 1928
• Status: Published

Opinions

BEAN, J.

The defendants suggest that a state court does not have jurisdiction under a federal statute where that jurisdiction is not compatible with the jurisdiction of the federal courts under the same statute or where the jurisdiction of the state is excluded by implication, and also that mandamus is not maintainable for the reason that plaintiff has an ade quate remedy at law. Citing Claflin v. Houseman, 93 U. S. 130 (23 L. Ed. 833).

The jurisdiction of the state court, in the present case, is in no way incompatible with the jurisdiction of the federal courts, if under the statute there were any questions of which the federal courts under the law would take cognizance. We fail to see any reason why the federal government or courts would be interested in the matter of the claim of a state made against a county. It is an appropriate matter for the adjudication of the state courts: Teal v. Felton, 12 How. (53 U. S.) 284 (13 L. Ed. 990); City of Stanfield v. Umatilla River Water Users Assn. et al., 192 Fed. 596; 27 R. C. L. 36, § 41. If, as contended by plaintiff, the County of Marion by its officers had in its possession $24,059.41, or any definite sum, belonging to the State of Oregon, we think the writ of mandamus should lie. Courts should not hesitate and quibble about fine spun technicalities in the matter of procedure, when the state government and its legal subdivisions are concerned. The parties have evinced a desire that the court will dispose of the main question involved in the case.

The acts of Congress approved April 10, 1869 (14 Stat. 239), and May 4, 1870 (16 Stat. 94), granted to the Oregon and California Railroad Company all the odd-numbered sections of public domain for twenty miles on each side of that company’s located railroad, to aid in the construction of the railroad from the Oregon-California boundary line northerly to Portland, Oregon, containing provisos requiring the sale of the grant lands to actual settlers only, in quantities of not more than one quarter-section to a purchaser, and at a price not to exceed $2.50 an acre. Failure of the railroad company to comply with the terms of the provisos resulted in a suit instituted by the United States for forfeiture of the unsold portion of the grant lands.

The Supreme Court of the United States denied the prayer for forfeiture, held the provisos to be continuing enforceable covenants and left the enforcement thereof to Congress: Oregon-California R. R. Co. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908). Pursuant to the decision of the Supreme Court, Congress passed the Chamberlain-Ferris Act (39 Stat. 218), a portion of which is as above set forth in the writ.

The first portion of Section 10 of the Chamberlain-Ferris Act provides, in substance, for the payment to the railroad company, its successors or assigns, and those having liens on the land at the rate of $2.50 per acre for the number of acres of the lands sold or unsold patented to the Oregon-California railroad company, after deducting the amount already received by the railroad company, or its predecessors in interest, on account of said lands, and then provides:

“After the said railroad company, its successors or assigns, and the lien holders shall have been paid the amount to which they are entitled, as provided herein, an amount equal to that paid for accumulated taxes, as provided in section nine thereof, shall be deposited in the treasury to the credit of the United States, thereafter all other moneys received from the sales of land and timber shall be distributed as follows: * * ”

(Here follows the portion of Section 10 quoted in the writ.)

The claim of the state, in order to be sustained, must be brought within and governed by the terms of Section 5 of the act of July 13, 1926, which, as it is agreed, after making the correction of a typographical error, by changing the word “to” to read “so” in the fourth line from the last in said paragraph, was intended to read as follows:

“All moneys paid and received under the provisions of this act by any county shall be prorated, apportioned, and paid to the state, county, port districts, school districts, road districts, and other civil subdivisions of the county in the same proportion as the taxes assessed, levied, and collected by the county for the year covered by such payment are apportioned, and paid, so the state, county, and each civil subdivision will receive the same amount as though the money had been paid by a taxpayer for each year.”

The main question is, Do the allegations of the writ bring the demand of the state within the act of Congress? In order for the writ to disclose the right contended for by the state, it must show that some part of the sum paid to the county should be apportioned and paid to the state, so that the state “will receive the same amount as though the money had been paid by a taxpayer for each year.”

The writ is wholly wanting in any such showing or allegation. The statement in the writ, that a certain amount would have been levied as a state tax, is not equivalent to a statement that such amount would have been prorated, apportioned or paid to the state so that the state would receive the same amount as though the money had been paid by taxpayer. Neither can such an allegation, as required be made under the law of this state. The statute provides the method by which the state’s expenditures are exacted. The State Tax Commission is created by Section 4184, Or. L., with, comprehensive duties relating to the determination and raising of state revenue.

Under the provision of Section 4214, Or. L., it is the duty of the State Tax Commission to ascertain the state revenue and apportion same among the counties. After ascertaining the total amount of revenue necessary for the state purposes for the next ensuing fiscal year, the total amount thereof is to be apportioned among the several counties in the manner provided for by the statute. See Sections 4215, 4216, Or. L. This, as is well known, is apportioned to a county in a lump sum which, under the law, it is presumed was apportioned to Marion County for the years mentioned and has been paid by that county. Therefore, the State of Oregon has not lost one cent in taxes by reason of the revestment of the grant lands.

Let us take, as an illustration, a section of the granted lands in Marion County, and suppose that during the year 1916 it had been taxable to an ordinary taxpayer, but for some reason was not placed upon the tax-rolls at the regular time. The state tax was apportioned in a lump sum to Marion County; and suppose thereafter the section of land had been placed upon the tax-rolls of the county and the taxes thereon assessed and paid to the county, such payment in no way would have affected the state tax. The state would not have been entitled to any portion of the tax paid by such taxpayer. Section 4217, Or. L., provides as follows:

“Alteration in county rolls not necessary. It shall not be necessary to change the values of the particular descriptions of property assessed in each of the several counties on the assessment rolls thereof, but the county shall collect and pay over as required by law the amount so apportioned, and in no case shall any deduction or abatement be made from the apportionment of any county on account of the delinquency of any taxpayer, or error or omission in the assessment roll.”

This section plainly provides that no deduction or abatement shall be made from the apportionment of any county on account of the delinquency of any taxpayer, or error or omission in the assessment-roll.

Section 4339, Or. L., as amended by Chapter 48, page 66, Laws of 1925, requires the county treasurer of the state, on or before the first day of May in each year, to pay over to the state treasurer one half of the amount of the state taxes charged to their respective counties, and on or before the first day of November of each year to pay over the remainder of the money so charged “without any deduction for any cause whatever, which tax shall be paid out of the first moneys collected and paid into the county treasury over which the county has control.” If such payment is not made within thirty days after the dates mentioned, the balance is deemed delinquent and declared to be a debt due and owing by the county to the state, subject to a legal rate of interest.

In order for a peremptory writ to be issued the alternative writ must disclose a clear duty on the part of defendants to pay the amount therein provided, under the terms of the act of Congress approved July 13, 1926.

The obligation of the county to contribute its portion of the state revenue exists only by virtue of the statute and the valid requirement of the county to contribute to the funds or revenues of the state must have its foundation in law. Usually a legislative en actment prescribes tbe duties and obbgations of a county to its parent state.

In order for a county officer to be warranted or authorized to pay out tbe funds of a county to a state official, or anyone else, tbe law must so require and direct. Tbe county officer making sucb a disbursement must be able to put bis finger upon tbe law creating tbe demand and prescribing bis official duty to liquidate tbe same.

Tbe allegation of tbe writ contained in paragraph VII, to tbe effect that by reason of matters and things alleged in the writ tbe county of Marion has received from the United States and now has in its possession tbe sum of $24,059.41, which it is specifically required and directed by law to pay to tbe State of Oregon, is a mere conclusion based upon other allegations of tbe writ, and does not fulfill tbe requirement. Tbe state has not shown a legal duty on the part of defendants to pay it, said sum, or any part thereof.

In the case of Northup v. Hoyt, 31 Or. 524 (49 Pac. 754), this court held that tbe liability of tbe county to tbe state in connection with tbe payment of sucb county’s apportioned share of state revenue is not limited to payment of tbe amount of tax money collected on tbe revenue by tbe county for state purposes. This court there said, as shown at page 530 of the Reports (49 Pac. 755):

“And all taxes levied for state and county purposes, when collected belong to tbe county, and the state becomes a preferred creditor to tbe amount of tbe state revenue apportioned to it. So that while, for convenience, tbe rate of taxation included in the general county levy for tbe special purpose of raising money with which to pay tbe county’s obligation to tbe state is designated as a state tax in the law and upon the county records, it is, in fact, a county tax levied for county purposes. The state does not deal with the individual taxpayer, but its revenue is apportioned to, and collected from, the various counties in their corporate capacity, in proportion to the taxable property in each, and is payable by the county, whether collected from the taxpayer or not. * * ”

There is then no apportionment by a county in favor of the state of taxes assessed, levied and collected by a county.

The whole purview of the act appears to be an effort on the part of the government to relieve the lands involved practically from tax delinquency caused by the Chamberlain-Ferris Act. It is in substance a provision for the payment of all taxes that in ordinary course would have become a lien upon the lands without the usual addition of interest and penalty. If the purpose of the act were assumed to be such, it must be remembered that an ordinary tax delinquency for a year or two years, which is afterward paid, that no part of such payment would be apportioned to the State of Oregon. Therefore, the rates of the state taxes for the several years included in the statement, exhibit “C,” attached to the writ, does not govern or affect the amount of the state tax to be paid by a county and does not affect the claim of the state in this proceeding.

While there is no direct relation between the state and the individual taxpayer, and no definitely ascertainable division between the state and county of any specific taxes collected by the county, there is such relation and such division between the county and the “port districts, school districts, road districts and other civil subdivisions of the county” mentioned in Section 5 of the act.

Section 4310, Or. L., provides that “all taxes hereinafter levied by any incorporated city or town, school district, road district, port or other municipal taxing agency or district, shall be levied on the property therein respectively assessable * * .”

Section 4311, Or. L., provides as follows:

“Other taxes to be collected with County taxes. All taxes levied by any school district, road district, incorporated city or town, port, or other municipal corporation or taxing agency or district, now or hereafter authorized by law to levy taxes, shall be collected by the same officer and in the same manner and at the same time as taxes for county purposes are collected.”

Section 4314, Or. L., provides in part thus:

“The county treasurer shall keep the moneys received by him from the tax collector in separate funds, and shall pay the same over to the several school districts, towns, cities, ports or other municipal taxing districts or agencies entitled thereto. * * ”

There is then a clear distinction between the statutory provisions relating to the funds of the county and the various taxing agencies thereof on the one hand, and the provisions requiring the payment of the state “tax” by the county at definite times and without any deduction, out of the first moneys collected and paid into the county treasury over which the county has control. The former are essentially taxes, available and prorated and apportioned only as collected; the latter a preferred claim and debt, to be paid, whether collected or not.

Under the plain provisions of the act of July 13, 1926, the funds received by Marion County thereunder are to be prorated and apportioned to the county, port districts, school districts, road districts and other civil subdivisions of the county, as required by the state law, and no part thereof is due the State of Oregon.

We find no argument on the part of the state pertaining to the last clause of Section 5 of the act of 1926, reading, “so the state, county and each civil subdivision will receive the same amount as though the money had been paid by a taxpayer for each year.”

The words “state, county, port districts, etc.,” as used in the act are clearly words of general definition, embracing all possible beneficiaries of the funds, and their general terms are restricted by the last clause of Section 5, which provides the method of identifying the actual and particular beneficiaries intended by the act. This construction is further strengthened by the fact that the title of the act and the first four sections thereof refer only to the counties.

No one would contend that a port district, or school district, situated in a county, or counties, named in the act of 1926 would be entitled to have a portion of the money paid to a county, apportioned and paid to such district by a county, unless there would have been some tax upon such grant lands that would have been assessed, levied and collected by such district during the period, so that it would receive the same amount as though the money would have been paid by the taxpayer.

It is said in 1 Blackstone, 87, that:

‘ ‘ There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy; that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy.”

It is the province of the court to take into consideration the condition prevailing at the time when a law is enacted. The words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object and intent which the lawmakers had in view: State v. Hyde, 88 Or. 1 (169 Pac. 757, 171 Pac. 582, Ann. Cas. 1918E, 688); Keith v. Quinney, 1 Or. 364, 366; State v. Young, 74 Or. 399, 403 (143 Pac. 647); Lewis’ Sutherland on Stat. Const. (2 ed.), 347.

It is an elementary principle that a statute is to be construed in accordance with the legislative intent to be ascertained from the whole statute, and a consideration of the mischief which it was designed to remedy: Duncan v. Dryer, 71 Or. 548, 557 (143 Pac. 644); Northern Counties Trust Co. v. Sears, 30 Or. 388, 395 (41 Pac. 931, 35 L. R. A. 188, note).

Noticing the general features and purposes of the two acts of Congress it appears that by the terms of the Chamberlain-Ferris Act a separate account is required to be kept of the sales of land and timber within each, county containing any of such grant lands. That after deducting from the proceeds an amount equal to the amount of the accrued taxes in that county, and a sum equal to $2.50 per acre of such land therein, title to which is revested in the United States, under the act, 25 per centum of the remainder is to be paid to the state treasurer of the state in which the land is located, to be a paid of the irreducible school fund of the state, 25 per centum shall be paid to the treasurer of the county for common schools, roads, highways, bridges and port districts to be apportioned by the county courts for the several purposes above named; 40 per centum shall be paid as a part of the reclamation fund; and 10 per centum shall become a part of the general fund of the United States treasury. It was not contemplated by the terms of either of the acts that the money appropriated to a state should be paid to a county.

It is seen that an account in the matter is to be kept with each county. Payments authorized by the act are to “be made to treasurers of the states and counties respectively.” The accounts of payments to the states and respective counties aré entirely separate and distinct. By the proviso in Section 10, none of the payments are to be made until the amount due the railroad company, its successors or assigns, has been fully paid, and the United States treasury reimbursed for all taxes paid pursuant to the act.

Eeferring now to the act for the relief of the counties, we find (Section 3) provision made for the payment to the several counties of amounts of money equal to the taxes on said lands within such counties, computed in the same manner, “until all charges against said Oregon and California land grant fund shall have been liquidated and said fund shows a credit balance as available for distribution under Section 10 of the act approved June 9th, 1916.”

And again Section 4 of the act provides that all moneys paid to the counties shall be charged against the land grant fund, and all proceeds received from the sale of lands and timber shall be placed to the credit of such fund until all sums charged against said fund are liquidated, and no distribution under Section 10, of tbe act of June 9, 1916, can be made until the United States bas been fully reimbursed.

The payment authorized by tbe act of July 13, 1916, to be made to tbe affected counties is not a gratuity but an advancement of money in lieu of tbe 25 per centum to be paid to tbe treasurer of tbe county for common schools, roads, etc., as provided in tbe Chamberlain-Ferris Act. And such amounts so paid are charged to tbe respective counties. Tbe provisions of tbe act are to “render unto Caesar the things which are Caesar’s.” Tbe 25 per centum to be paid to tbe state for tbe benefit of tbe irreducible school fund under tbe terms of tbe Chamberlain-Ferris Act is not mentioned in or affected by tbe later act.

In Multnomah County, one of tbe land grant counties, as shown by tbe statement of tbe State Tax Commission, during tbe ten years, 1917 to 1926, tbe reversion of tbe grant lands caused an increase in tbe apportionment of state taxes to that county, during that period, aggregating $449,253. According to tbe same statement of tbe Tax Commission, tbe “amount of government refund of state tax claimed by state,” against Multnomah County for tbe same year is $12,189.

This claim is made after Multnomah County bas paid tbe proportion of state taxes required by statute to be paid by it. Similar claims are made by tbe state against all of tbe eighteen grant land counties.

Employ as much argument as we may, there is no law, either state or national, authorizing or requiring any portion of tbe money demanded by tbe state to be paid by tbe county to tbe State of Oregon.

As we noticed, tbe loss of taxable property by tbe county by reason of tbe revestment of tbe grant lands was not reflected in the state revenue. The counties were still required to pay their share of the state expenses. This they did hy increasing the rate of levy on the remaining taxable property. The state, as a governmental entity, lost nothing by such revestment. It is permissible, if necessary, to consider the report of Congress on the bill, for the act in question: Duplex Printing Press Co. v. Deering, 254 U. S. 443 (65 L. Ed. 349, 16 A. L. R. 196, 41 Sup. Ct. Rep. 172); Byers v. We-Wa-Ne, 86 Or. 617 (169. Pac. 121).

The act was intended to relieve the distress existing' in the land grant counties resulting from the with-: drawal of taxes of grant lands carrying an assessed valuation of $22,500,000 and returning an annual tax revenue of approximately $500,000. The failure of the Chamberlain-Ferris Act to function according to the intent and expectation of Congress, after ten years had passed and no payments to the counties under Section 10 of the latter act having been made, and there being little hope of there being relief under that act for years to come, and the financial necessities of the several grant land counties for years to come, caused the appeal to the national government for relief, which resulted in the passage of the act of July 13, 1916.

The report of the Committee on Public Lands and Survey of the United States on the Senate bill, of which the house bill was a duplicate, shows among other things that:

“The measure of the injury suffered by the counties is the amount they would have received in taxes had the invested lands remained on the tax rolls. S. 3255 provides redress for that injury by payment commensurate with that loss. It simply makes the counties whole. It does at this time what the revestment act was intended to do. It corrects a mistake. * #

“In conclusion, the committee believes that S. 3255 provides for the doing of simple justice. The government should do the equity it exacts of its people. Having by its own act done an unintentional, but none the less real, and very grievous injury to those remote counties of Western Oregon, it should at their petition, redress that injury and make the injured whole.

“S. 3255 offers a reasonable logical remedy for the existing wrong, without departure from governmental policy. The committee recommends its early enactment.”

The report of the Committee on Public Lands of the House of Representatives, being Report No. 1330, of the 69th Congress, 1st Session, reads, in part, as follows:

“The bill does not propose that the government shall pay the counties any moneys in lieu of taxes on lands publicly held. It does propose, in view of the unforeseen and distressing conditions that have arisen and now exist by reason of the delays in the disposition of the lands and timber contemplated in the revestment act but not realized, that the government advance now the amount of taxes that would have accrued on the lands for the years 1916-1926, inclusive, had they not been revested, and for subsequent years until the counties have received the 25 per cent coming to them under the revestment act, or until the sales have been made to such an extent that the yearly distribution to the counties practically equals the former taxes collected therefrom. The bill will not give to counties any more money than the revesting act provides, but it does make the money available before the sales occur.

“The bill provides that when sales are made and amounts are available for distribution, the 25 per cent due the counties shall be withheld from the counties and paid into the treasury until all amounts advanced to them from the treasury have been repaid thereto.”

The title of the act is indicative of the intent of Congress, if there is any doubt or ambiguity pertaining to the act: Lapina v. Williams, 232 U. S. 78 (58 L. Ed. 515, 34 Sup. Ct. Rep. 196).

There is no provision in the Chamberlain-Ferris Act for moneys to be paid to the state for general state purposes, but only for the benefit of the irreducible school fund. While in the case of the counties the funds were apportioned for the various purposes named, or, in other words, for the general development of the counties, had Congress intended the state to share in the funds appropriated by the act of July 13, 1926, it is not unreasonable to assume that provision would have been made therein for such share to be paid into the irreducible school fund.

It is worthy of note that a statement of the State Tax Commission compiled in 1927, “showing effect of Oregon and California grant lands upon the apportionment of state taxes to the several counties for the year 1917 rolls 1916,” and a like statement for each succeeding year, until and including 1926 (rolls of each respective preceding year). “Valuation based upon the 1915 assessment of said grant land,” the “effect of reversion on county apportionment of state taxes,” as pertaining to Marion County, was to increase the apportionment to Marion County of the state taxes in each year. Such increase of Marion County in 1917 was $1,811 and such increase varies for the several years named, being an increase of $4,904 for the year 1922. This increase of Marion County’s state taxes during those years was caused directly by the reversion of said grant lands, and the withdrawal of the same from taxation. In some of the grant lands counties the reversion of such grant lands effected a decrease of the apportionment of state taxes for said years. Such increase in some of the counties equals the decrease in the others, showing that the state lost no revenue by reason of the withdrawal of the grant lands from taxation.

It should also be noted that during nearly every year of the period in question the state apportioned state taxes to the several counties to the full amount up to the 6 per cent constitutional limitation.

It does not appear from the writ that Marion County has received from the United States or has in its possession the sum of $24,059.41, or any sum, which the law requires or directs to be paid to the State of Oregon or which belongs to the state. Therefore, the peremptory writ of mandamus is denied and the judgment of the Circuit Court sustaining the demurrer to the writ and dismissing the action is affirmed. Affirmed.

Coshow, McBride and Brown, JJ., concur.