City of Portland v. Multnomah County

• Decision Date: 13 November 1935
• Citation: 151 Or. 504,50 P.2d 1145
• Parties: CITY OF PORTLAND v. MULTNOMAH COUNTY et al.
• Court: Oregon Supreme Court

50 P.2d 1145

151 Or. 504

CITY OF PORTLAND v. MULTNOMAH COUNTY et al.

Supreme Court of Oregon

November 13, 1935

In Banc.

Appeal from Circuit Court, Multnomah County; T. E. J. Duffy, Judge.

Suit by the City of Portland, a municipal corporation, against Multnomah County and the assessor and sheriff of said county to declare invalid certain taxes attempted to be levied against real property owned by said city. From a decree for plaintiff, defendants appeal.

Affirmed.

Frank S. Sever, Deputy Dist. Atty., of Portland (James R. Bain Dist. Atty., of Portland, on the brief), for appellants.

Frank S. Grant, City Atty., of Portland (Willametta McElroy, Deputy City Atty., of Portland, on the brief), for respondent.

KELLY Justice.

Plaintiff the city of Portland, Or., is now and ever since August 14 1874, has been the owner in fee simple of lot 6, block 50, Portland, Multnomah county, state of Oregon. From 1874 until 1919, the building on the property was used to house a company of the city's fire department. In September, 1919, the use of said property for said purpose was discontinued, and ever since said time a portion of the building has been rented for a retail store.

On the 1st day of November, 1929, plaintiff leased said premises to one J. C. Green for a period of two years from said date for a total rental for said term of $15,600; and on the same date the said lessee J. C. Green leased to the plaintiff for a like term a portion of said premises, to wit, the upper floor and stairway thereof for a rental for said term of $4,080. After the expiration of said lease, said J. C. Green continued to occupy a portion of said premises, to wit, the lower floor thereof for market purposes as a tenant from month to month until the 30th day of April, 1932, paying for said premises a total rental for said period the sum of $2,880.

Upon the 1st day of May, 1932, the plaintiff leased to said J. C. Green for a period of two years the lower floor of said premises for a monthly rental of $300 per month, which said lease was again renewed at the expiration of said term for a like period of two years, expiring April 30, 1936; the rental reserved therein to be paid by said tenant being the sum of $250 per month.

After the execution of said leases on November 21, 1929, the plaintiff, city of Portland, occupied the upper floor and stairways of said premises for both a comfort station and public employment bureau until June, 1931, and continued to occupy a portion of said upper floor and the stairways therein until the 31st day of March, 1932, as a public comfort station.

For the year 1931, the defendant Hiram U. Welch, as county assessor of Multnomah county, assessed the land and improvements comprising said premises at three-fifths of their full assessable value, assessing the land at $39,000 and the improvements at $3,100, and noting on the assessment roll that said assessment was made upon a basis of three-fifths of the assessable value of said property. For the year 1932, and subsequent, the land was assessed at its full assessable value as follows: Land, $65,000; improvements, $4,910.

Based upon the foregoing facts, which are stipulated, plaintiff contends that the taxes attempted to be levied by Multnomah County and to be apportioned and assessed against said property are unlawful, invalid, and uncollectible, while defendants insist that said taxes are lawful, valid, and collectible.

Section 69-104, Oregon Code 1930, as amended by chapter 358, Oregon Laws 1931 (page 624, § 1) among other things, provides:

"The following property shall be exempt from taxation; ***

"2. All public or corporate property of the several *** cities *** and all other municipal corporations in this state used or intended for corporate purposes, except lands belonging to such public corporations held under a contract for the purchase thereof."

A construction of the above-quoted subdivision 2 of section 69-104, as amended, involves a consideration of the meaning of the words public and corporate as modifying or qualifying property; and of the word corporate as applied to the word purposes.

This court, speaking through Mr. Justice Harris, has said that, in its broadest sense, all property owned by a city is public property.

"A city may control property used in a purely governmental activity or it may own property used in what has been termed a 'private municipal activity;' but in either event the property is public property. All municipal property may within certain constitutional limitations be controlled by the state; and the right of control is lesser or greater, usually depending upon whether the property is or is not used by the city in the performance of a strictly governmental duty devolved upon the city as an agency of the state; but whether protected by greater or by lesser constitutional limitations, property of both classes is nevertheless to be deemed public, if that term is employed in its broadest and not in its restricted sense,"-citing authorities. Kinney v. Astoria et al., 108 Or. 514, 530, 217 P. 840, 845; Seafeldt v. Port of Astoria, 141 Or. 418, 422, 16 P.2d 943.

"When they are used in reference to property, the terms 'private' or 'corporate' are employed in contradiction to the word 'public."' Ballentine's Law Dict. p. 291, citing Trustees of Academy of Richmond County v. City Council of Augusta, 90 Ga. 634, 17 S.E. 61, 20 L. R. A. 151, 158, which in turn cites Trustees of Richmond County Academy v. Bohler, 80 Ga. 159, 163, 7 S.E. 633.

As stated by Mr. Justice Rand: "Where a statute defines as exempt from taxation all public or corporate property of a municipality, using the words 'public' and 'corporate' both, it would seem that it was intended to include all property of every nature belonging to the city, for if the word 'public,' as applied to property, was intended to include only such property as was held in a governmental capacity-that is, for a public use-then it would seem that all other property of the municipality and belonging to it would be regarded as corporate property." Portland v. Welch, 126 Or. 293, 269 P. 868, 869.

The Supreme Court of the United States has used the following oft-quoted language with reference to the term corporate purpose: "We think it may be safely said that, as a general rule, a corporate purpose must be some purpose which is germane to...