City of Pendleton v. Umatilla County

• Decision Date: 30 December 1925
• Parties: CITY OF PENDLETON v. UMATILLA COUNTY. [*]
• Court: Oregon Supreme Court

241 P. 979

117 Or. 140

CITY OF PENDLETON v. UMATILLA COUNTY. ^[*]

Supreme Court of Oregon, En Banc.

December 30, 1925

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

Suit by the City of Pendleton against Umatilla County. Judgment for defendant, and plaintiff appeals. Affirmed.

C. Z. Randall, of Pendleton, for appellant.

Edward J. Clark, of Pendleton (C. C. Proebstel, of Pendleton, on the brief), for respondent.

RAND J.

This suit was instituted by the city of Pendleton to compel the county of Umatilla to account for and pay over to the city certain moneys collected by the county as road taxes during the year 1919, and each year thereafter, up to and including the year 1923. A demurrer to the complaint was sustained and, from an order dismissing the suit, the city has appealed.

In substance, the complaint alleges that, pursuant to section 4600, Or. L., it was incumbent upon Umatilla county to levy a separate road tax during each of said years upon all taxable property within the county, and, when collected, to apportion and pay to plaintiff such proportion of 70 per cent. thereof as the total taxable property within the city, at the time of the levy, bore to the total amount of the taxable property within the county, that road taxes were levied and collected by the county during each of said years, and that the sums levied and collected were expended by the county upon the county roads of the county, and no part thereof has ever been apportioned or paid to plaintiff. The complaint prays for an accounting and for judgment for the city's proportion of the taxes collected by the county for road purposes during said years. Attached to and made a part of the complaint marked as exhibits A, B, C, D, and E, are copies of the tax levies of Umatilla county for said years.

The defendant county's contention is, in effect, that the plaintiff, if entitled to recover at all, has a full adequate, and complete remedy at law, and for that reason a court of equity has no jurisdiction over the subject-matter of the suit. Defendant also contends that section 4600, providing for the levying and collection of taxes, is not a general law operating uniformly throughout the state as required by article 9, § 1, but is a local law and within the prohibition of article 4, § 23, subd. 10, of the organic act. Defendant also contends that the tax levies, as shown by Exhibits A, B, C, D, and E, which are copies of the orders of the county court making said levies, on their face show that the levies were not made pursuant to section 4600, but were made under the authority conferred by section 937, Or. L., which latter section contains no requirement for apportioning or paying to any incorporated city or town any part of taxes levied for road purposes, and authorizes the county court to expend the same, when collected, upon any of the county roads of the county, and that, under the doctrine announced and followed in Kime v. Thompson, 60 Or. 183, 118 P. 174, and Roney v. Lane County, 81 Or. 372, 377, 159 P. 73, no suit or action can be maintained by any incorporated city or town to recover any part of the taxes collected under a levy made pursuant to the provisions of section 937.

The constitutionality of section 4600 was questioned upon other grounds than those now urged in Astoria v. Cornelius, recently decided (Or.) 240 P. 233, and it was there held that the statute was not unconstitutional. The particular objections now urged were not called to the attention of the court upon that appeal, but were considered by the court at that time, although not referred to in the opinion then rendered. Section 4600, Or. L., reads 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, or used in like manner alone or in co-operation with the state on roads within such county known as state roads, or such roads, or any portion thereof built in co-operation with the United States in accordance with an act of Congress approved July 11, 1916, entitled 'An act to provide that the United States shall aid the states in the construction of rural post-roads and for other purposes,' or any other act of Congress, rule, or regulation of any department of the United States, 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; and such county court or commissioner's court of each county in this state is hereby authorized to co-operate with the state, the United States or any department thereof in the improvement of any public road within such county; provided, however, 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 seventy 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 thirty 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."

As the basis of its contention that section 4600 is unconstitutional, defendant construes this statute to mean that all of the counties of the state must be classified according to the population they had in 1910, as shown by the federal census of that year, and that no reclassification of the counties of the state can ever be made under the statute, regardless of what their future population may be. That such a classification, when relating to the assessment and collection of taxes for road purposes, would be a special or local law, and would be in violation of the constitutional provisions referred to is obvious, and, if the statute has that effect, it was not within the power of the Legislature to enact it. The power of the Legislature, however, to classify counties according to their population, and to prescribe one rule for all counties coming within one of the classification and a different rule for all counties coming within the other classification, providing that it operates alike upon all of the counties of the state according to whether they come within one or the other of the two classes, is not a local law within the meaning of the term as employed in the Constitution. This power, as well as the limitations upon the power of the Legislature in respect thereto, is so well settled in this state that it would be idle to attempt a restatement of it. See Ellis v. Frazier, 38 Or. 462, 63 P. 642, 53 L. R. A. 454; Ladd v. Holmes, 40 Or. 167, 66 P. 714, 91 Am. St. Rep. 457; Ex parte Northrup, 41 Or. 489, 493, 69 P. 445; State v. Muller, 48 Or. 252, 258, 85 P. 855, 120 Am. St. Rep. 805, 11 Ann. Cas. 88; State ex rel. v. Swigert, 59 Or. 132, 136, 116 P. 440; Chan Sing v. Astoria, 79 Or. 411, 418, 155 P. 378; State v. Blanchard, 96 Or. 79, 92, 189 P. 421; Tichner v. Portland, 101 Or. 294, 298, 200 P. 466.

An examination of section 4600 discloses that it first contains a provision requiring the county court of every county in the 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 for the purposes there stated; that this provision is followed by an exception which reads, "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 the first proviso which follows the exception is in these words, "Provided, however, 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...