City of Salem v. Marion County

• Decision Date: 13 March 1894
• Citation: 36 P. 163,25 Or. 449
• Parties: CITY OF SALEM v. MARION COUNTY.
• Court: Oregon Supreme Court

36 P. 163

25 Or. 449

CITY OF SALEM v. MARION COUNTY.

Supreme Court of Oregon

March 13, 1894

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by the city of Salem against the county of Marion. From a judgment for defendant, plaintiff appeals. Reversed.

D'Arcy & Bingham, for appellant.

Jas McCain, Dist. Atty., for respondent.

LORD C.J.

This is an appeal from a judgment of the circuit court of Marion county dismissing a writ of review issued by said court at the instance of plaintiff to review the proceedings of the county court in disallowing and rejecting a claim presented by said plaintiff for $3,763.97 being the amount collected by the defendant from the taxable property within the corporate limits of the city of Salem and the inhabitants thereof as road taxes. The record discloses in substance, that the county court of said county, at the January term, 1892, levied and collected a road tax of two mills on the dollar upon all the taxable property in Marion county, including the taxable property within the corporate limits of the city of Salem, and also assessed and collected a poll tax of two dollars upon every person who was liable to pay a state poll tax within said county, including the inhabitants of said city; that the sum of $3,477.97 as road taxes and $286 as poll taxes so assessed was collected from the inhabitants of said city; that by virtue of section 36 of an act of the legislature entitled "An act," etc., "to incorporate the city of Salem," known as the charter of said city, and an act supplemental thereto, etc., the said city became entitled to all the road tax, either in work or money, due from the inhabitants of said city, or assessed upon the taxable property within the corporate limits of the same; that at the October term of the county court in 1892 the plaintiff presented its claim for said sum of $3,477.97 and the sum of $286, and asked said court to award the plaintiff a warrant on the treasurer of Marion county therefor, and that such court disallowed and rejected said claim; that thereafter the plaintiff sued out a writ of review, whereby it removed the proceedings of the county court upon its claim to the circuit court of said county for review, where, after due consideration, it was adjudged that the writ be dismissed, and that the defendant recover its costs and disbursements, from which the plaintiff appeals.

The plaintiff claims that it was entitled to those taxes by virtue of section 36 of its charter, which is as follows "The power and authority given by general law of the state to the county court of Marion county to divide said county into road districts, to appoint road supervisors, to lay out or work highways, to license the sale of liquor, and to grant ferry licenses, shall not apply or extend to the territory within the limits of the city of Salem; but said territory, and the inhabitants thereof, are hereby excepted out of the jurisdiction of said court upon said subjects; provided, however, that the street commissioner shall work the county road tax due from the inhabitants of the city on the streets, alleys, and bridges thereof after the manner prescribed by general law for road supervisors, and he shall have the same power and authority to enforce the payment of such road tax in work or money, as provided in such general law for road supervisors." By subdivision 4, § 4085, of Hill's Code it is provided that: "In counties containing ten thousand inhabitants or over, the county court of such county in the state, at the time of levying taxes for county purposes, may levy a tax upon all the taxable property in its county, not to exceed two mills upon the dollar, and in addition thereto a poll tax of two dollars to be assessed upon every person who shall be liable to pay a state poll tax, which tax shall be collected with and at the same time and in the same manner...