Dayton v. Board of Equalization

• Decision Date: 22 November 1897
• Citation: 50 P. 1009,33 Or. 131
• Parties: DAYTON v. BOARD OF EQUALIZATION et al.
• Court: Oregon Supreme Court

50 P. 1009

33 Or. 131

DAYTON v. BOARD OF EQUALIZATION et al.

Supreme Court of Oregon

November 22, 1897

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Writ of review by the Dayton Hardware Company against the state board of equalization and Multnomah county. From an order dismissing the writ, plaintiff appeals. Reversed.

The purpose of this proceeding is to review the action of the state board of equalization,, and to correct certain errors alleged to have been committed by it, to the injury of plaintiff, in equalizing the assessments throughout the state for the year 1896. The plaintiff was assessed in Multnomah county on "merchandise and stock in trade," $5,000 "one horse," $50,--total, $5,050. And it is alleged: That the assessor of said county assessed the taxable property therein by the following classifications and in the aggregate amounts set opposite, viz.: "Town and city lots, $20,475,948; improvements on town and city lots, $9,833,091; merchandise and stock in trade $2,319,690,"--which was equalized by the county board of equalization without change, and the roll certified to the secretary of state, and by him delivered to the state board of equalization. That said board attempted and pretended to revise and equalize the valuations and assessments of real and personal property appearing on said assessment roll according to said classifications and descriptions, "in connection with certified copies of the assessment rolls of all other counties in the state of Oregon, except the county of Marion." "That the clerk of Marion county neglected and refused to make or certify or transmit to the secretary of state, or to furnish said state board of equalization, any copy of the assessment roll of said county for said year, and no duly certified or authenticated copy thereof was before said board, or considered by it," while in the discharge of their duties as such board. That said state board attempted and pretended to classify real property in the several counties in the state as "town and city lots," "improvements on town and city lots," "railroad lands," "wagon-road lands," "other nontillable lands," "tillable lands," "improvements on deeded and patented lands," "railroad tracks," and "telegraph and telephone lines," and to add and deduct percentages to or from the aggregate valuations in the several counties of each of said classes separately, but did not attempt or pretend to raise or equalize the valuation of personal property in Marion county according to the class or kind, except as to live stock, but attempted and pretended to add 30 per cent. to the aggregate valuation of all other personal property in said county without any other classification or description, thereby increasing the same from $1,327,961 to $1,726,349. That said board added 20 per cent. to the aggregate valuation of "town and city lots" and "improvements on town and city lots," and 25 per cent. to the appraised value of "merchandise and stock in trade," as classified upon the assessment roll of Multnomah county. The return of the secretary of state to the writ has appended thereto a copy of the tabulated statement prepared by the state board of equalization, duly certified, showing that the board equalized real estate in two classes, viz.: Class 1 comprising "town and city lots" and "improvements on town and city lots"; and class 2, comprising "railroad lands," "wagon-road lands," "other nontillable lands," "tillable lands," "improvements on deeded and patented lands," "railroad tracks," "telegraph and telephone lines"; and personal property under the following heads, viz.: "Horses and mules," "cattle," "sheep and goats," "swine," "merchandise and stock in trade," "farm implements, wagons, carriages, etc.," "steamboats, machinery, etc.," "money," "notes and accounts," "shares of stock," "household furniture, etc.," "railroad rolling stock," and "improvements on lands not deeded or patented," except as it respects Marion county, which was equalized under three heads only, viz.: "Live stock," "railroad rolling stock," and "personal property, except live stock and railroad rolling stock." The board met December 1, 1896, and adjourned sine die on the 30th. Its proceedings show that after repeated efforts to obtain the assessment roll of Marion county, and after having secured, through a committee appointed for that purpose, a summary of such roll, it was, on December 26th, "moved by Wingate, and seconded by Gibson, that the board begin the preliminary consideration of live stock in Marion county, the rolls for that county having been received," which motion was adopted. It does not appear in the record, but is admitted by the parties, that the Marion county roll was not filed with the secretary of state prior to January 15, 1897. The lower court dismissed the writ, and plaintiff appeals.

Joseph Simon and E.B. Watson, for appellant.

C.M. Idleman, Atty. Gen., and T.S. Potter, Dep. Dist. Atty., for respondents.

WOLVERTON J. (after stating the facts).

At the outset it is claimed by the attorney general that the application for the writ was not made within six months from the date of the determination complained of, but the record was not finally made up until December 30, 1896, and the application having been made June 29, 1897, it was within the time. The primary question involved in this proceeding is whether the board ever acquired jurisdiction for the exercise of its functions as an equalizing body. If this shall be resolved in the affirmative, we may then inquire whether it has exceeded its prescribed powers or exercised its functions erroneously, to the injury of the plaintiff. The state board of equalization is a tribunal of judicial cognizance, possessing only inferior or special jurisdiction. It acts by virtue of the statute which brought it into being and prescribed its powers and functions, and, of course, it can exercise only the powers conferred by express enactment or by necessary implication. Its jurisdiction pertains only to the subject-matter, and its functions are exercised in a summary manner. There are no parties to its proceedings, nor does it act in rem; so that a record is not essential to the establishment of jurisdiction of person or thing. Folger, J., in Hunt v. Hunt, 72 N.Y. 229, says: "Jurisdiction of the subject-matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question." Miller, J., in Cooper v. Reynolds, 10 Wall. 316, says: "By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers or in authority specially conferred." Where, however, the exercise of jurisdiction is dependent inherently, or made so by statute, upon particular facts or any particular status or condition (as where the proprietor of an estate must be dead before a court of probate will administer his effects, or a crime must be committed in the county where the court is holden), they should be made to appear by proper averments in the record; otherwise, the action of the tribunal would be coram non judice. Davidsburgh v. Insurance Co., 90 N.Y. 526; Robinson v. Navigation Co., 112 N.Y. 315, 19 N.E. 625. The subject-matter over which the board has been intrusted with power to act is simply to equalize the assessment of property, and to secure uniformity in valuations as between the different counties in the state ( Railroad Co. v. Croisan, 22 Or. 393, 30 P. 219); but, before it can proceed in the premises, it must be conceded that the assessment rolls must have been prepared, equalized, and approved by the county authorities. Its prescribed manner of procedure is to appoint a secretary, whose duty it is to compile abstracts of the "assessment rolls received" from the various counties into tabulated statements for its use; and, when it shall have equalized the different classes of property, the result shall be combined in one table, and the chairman and secretary shall certify to the secretary of state the rate per cent. to be added to or deducted from the assessed valuation of each class of property in the several counties, and also the aggregate valuation is equalized. Sections 4, 5, and 9 of an act to provide a state board of equalization, etc. (Sess.Laws 1891, p. 182). The statute is somewhat ambiguous in its reference to the "assessment rolls received," as the board receives none of them; and we presume the allusion is to the rolls received by the secretary of state, certified to by the county clerks, under the seal of the court, as required by section 2788, Hill's Ann.Laws Or. But the exercise by the board of its functions as an equalizing body is not made to depend upon the fact either that the various county rolls have been certified by the county clerks under the seal of the county courts, or that they have been received by or filed with the secretary of state; that is to say, these things are not imposed as conditions precedent to its assuming jurisdiction of the subject-matter touching which it is empowered to act. Indeed, the board acts not upon the rolls, but upon the abstracts compiled into tabulated statements made by its secretary; and it is not necessary that the rolls themselves should be filed with it or actually before it, while exercising its delegated powers. When it has completed its deliberations, the duty is devolved upon it to combine the result into one table, which tabulated statement is intended to show, as it does in the present proceeding, the summaries of all the...