City of Astoria v. Cornelius

• Citation: 119 Or. 264,240 P. 233
• Parties: CITY OF ASTORIA v. CORNELIUS, COUNTY JUDGE, ET AL.
• Decision Date: 20 October 1925
• Court: Supreme Court of Oregon

240 P. 233

119 Or. 264

CITY OF ASTORIA v. CORNELIUS, COUNTY JUDGE, ET AL.

Supreme Court of Oregon, En Banc.

October 20, 1925

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Mandamus by the City of Astoria to compel T. S. Cornelius, County Judge, and John Frye, County Commissioner, of the County of Clatsop, to levy a road tax. From a judgment of dismissal plaintiff appeals. Judgment reversed, and writ allowed.

This is a mandamus proceeding brought to compel the county court of Clatsop county to levy the tax provided for in chapter 339 of General Laws of Oregon for 1919, being section 4600, Or. L. The defendants demurred to the writ on the ground of insufficiency of statement of facts. The circuit court sustained the demurrer. The plaintiff refused to plead over and the court dismissed the case. The plaintiff appeals.

H. K Zimmerman, City Atty., of Astoria, for appellant.

F. P Leinenweber, Dist. Atty., of Astoria, for respondents.

BEAN J.

The substance of the allegations of the writ is as follows: The plaintiff is a municipal corporation of Clatsop county. The defendant, T. S. Cornelius, is a duly elected and qualified county judge of Clatsop county, and defendant, John Frye, is the duly elected qualified and acting county commissioner of said county of Clatsop, state of Oregon.

The writ sets forth section 4600, Or. L., in full. That part deemed material to quote here is as follows:

"It shall be, and is hereby made, the duty of the (county) court or commissioner's court of each county in this state to levy a tax of not less than one mill nor more than ten mills on the dollar on all taxable property in such county at the time of making the annual tax levy, which shall be set apart in the county treasury as a general road fund, to be used in establishing, laying out, opening, surveying, altering, improving, constructing, maintaining and repairing county roads, and bridges on county roads * * * except this provision shall not apply in counties having a population of over twenty-five thousand (25,000) according to the United States census of the year 1910; * * * that counties having a population of more than twenty-five thousand may levy a tax of not more than ten mills on the dollar on all taxable property in such county for a general road fund as in this act provided. Said tax shall be paid in money, and levied and collected in the same manner as other county taxes are levied and collected and when so collected shall be used for road purposes only, as provided in this act, and 70 per cent. thereof shall be apportioned to the several road districts, including districts composed of incorporated cities and towns in such proportion as the amount of taxable property in each district shall bear to the whole amount of taxable property in the county, and the remaining 30 per cent. shall be applied to roads in such locality in the county as the county court or commissioner's court may direct: Provided that the amount apportioned to any incorporated city or town shall be transferred to such incorporated city or town to be expended under the management of the officials of such incorporated city or town for the improvement and repair of county roads and for the repair and maintenance of improved streets within the boundaries of such city or town."

The county of Clatsop is a county having a population of less than 25,000 persons according to the United States census of 1910; that defendants are regularly required and obligated by said law to levy a tax of not less than one mill and not more than ten mills on the dollar on all taxable property in said county to be used as a general road fund; that the petitioner being an incorporated city in said county is entitled to have at least 70 per cent. of the money collected as such tax apportioned and delivered to petitioner to be expended under its management for the improvement and repair of county roads, and for the improvement of streets within the boundaries of the city; that the petitioner has made demand upon defendants in the capacity of such county court of Clatsop county to levy said tax as by law required; that defendants have failed, neglected, and refused to levy the tax, and have not included the same in the tax budget for the county of Clatsop, state of Oregon, for the year of 1923, and still refuse so to do.

In so far as the levying of the road tax in question is concerned, the act of the Legislature of 1919, being section 4600, Or. L., is a plain concise mandate or direction of the lawmakers of this state, to the county courts, named in the act, to levy a tax of not less than 1 mill nor more than 10 mills on the dollar on all taxable property in such county at the time of making the annual tax levy. As we view it, that part of the statute requires no construction, but simply that it be read and obeyed by the county courts named.

An interesting brief discussing the matter of construction of statutes has been filed on behalf of the plaintiff. We have not been favored with any brief in behalf of the defendants, and the record does not clearly indicate upon what point, or for what particular reason, the county court failed to levy the tax, or why it was not required to do so by the trial court. If there is any question in regard to the statute being mandatory, the language, "it shall be and is hereby made the duty of the county court to levy a tax," and so forth, then it seems that the intention of the Legislature to make this requirement mandatory and not merely permissive, is freed from doubt by the fact that the statute quoted is an amendment of a previous statute relating to the levying of the tax.

Turning to the General Laws of Oregon 1903, p. 272, and the General Laws of 1909, p. 296 (L. O. L. § 6320), General Laws of 1915, p. 133, and General Laws of 1917, p. 620, we find the provision in the several statutes, "that the county court, or commissioner's court, * * * may levy a tax," etc.

In 1919, by the statute above quoted in part, the Legislature changed the language of the statute pertaining to the levy of road tax, and in 1925 that branch of our state government re-enacted the law (Gen. Laws of Oregon 1925, p. 669), so as to read in effect as follows:

"It shall be, and is hereby made, the duty of the county court or commissioner's court, of each county in this state to levy a tax," etc.

The only conceivable object of the Legislature in making such change was to make the provision mandatory. Prior to such change, the requirement of the statute for levying such tax was construed to be permissive, or discretionary with the county court. Kime v. Thompson, 60 Or. 183, 118 P. 174.

Section 4600, Or. L., directs that, when the tax is collected, it should be used for road purposes only as provided in the act,

"and 70 per cent. thereof shall be apportioned to the several road districts, including districts composed of incorporated cities and towns in such proportion as the amount of taxable property in each district shall bear to the whole amount of taxable property in the county, and the remaining 30 per cent. shall be applied to roads in such locality in the county as the county court or commissioner's court may direct." The writ petitioned for by plaintiff does not seek the command to the county court to turn over the proceeds of the tax to the city of Astoria, and it may be that the question is not directly involved. Formerly the Legislature, as a general rule, constituted that part of the county outside the limits of incorporated cities and towns as tax districts for the purpose of providing funds for the improvement of the rural highways, and exempted most of the municipalities from such tax. Johnson v. Jackson County, 68 Or. 432, 435, 136 P. 874.

In 1917, the Legislature enacted what is now section 4586, Or. L., authorizing the county courts of such counties to annually divide their respective counties or any part thereof into road districts. That act contained the following:

"Provided, that all road districts formed under the provisions of this act shall be formed from contiguous territory; provided further, that every incorporated city and town shall constitute a separate road district, and the county court shall not have authority to divide such territory or include any of it in any other road district."

Therefore, the area within limits of the city of Astoria is a road district. The city is interested in the levying of the tax in question, and in the expenditure of the funds realized therefrom and, as alleged in the writ, is entitled to have at least 70 per cent. of the money collected by such tax under the management of the officials of the city for the improvement and repair of county roads, and for the repair and maintenance of improved streets within the boundaries of the city. The right of the city to prosecute this proceeding is not questioned.

It was suggested in the brief of appellant, at a time when it was expected that a brief would be filed in behalf of the respondents, that the only effect which the provisions of the statute, regarding the use of money raised by the tax in question, could have upon the determination of whether or not the writ states a valid cause of action, would be to determine the right of the plaintiff city to maintain this proceeding. The streets and county roads within the limits of the city of Astoria are public highways. It is the purpose of the law to make provision for the construction and maintenance thereof by the levying of a tax practically upon the property within the city limits. This levy is made through the instrumentality of the county court, in much the same manner as the county courts levy a tax for school and irrigation districts. The provision for turning the funds over to the...