Horsefly Irr. Dist. v. Hawkins

• Decision Date: 05 April 1927
• Citation: 121 Or. 366,254 P. 825
• Parties: HORSEFLY IRR. DIST. v. HAWKINS. SHERIFF.
• Court: Oregon Supreme Court

254 P. 825

121 Or. 366

HORSEFLY IRR. DIST. v. HAWKINS. SHERIFF.

Supreme Court of Oregon, En Banc.

April 5, 1927

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

Mandamus by the Horsefly Irrigation District, a quasi municipal corporation, against Burt E. Hawkins, to compel him, as Sheriff of Klamath County, to issue a certificate of delinquency against certain lands for taxes. The circuit court denied the writ, and plaintiff appeals. Reversed and remanded.

Plaintiff appeals from an order and judgment of the circuit court denying an alternative writ of mandamus and dismissing the proceeding.

Oneill & Irwin, of Klamath Falls, for appellant.

BEAN J.

Section 1 of chapter 128 of the General Laws of Oregon for 1923, p 187, entitled "An act providing for the issuance of certificate of delinquency for taxes on property within irrigation or drainage districts and for the foreclosure of the same," reads as follows:

"Any time after the expiration of six months from the date of delinquency of any taxes levied upon real property within an irrigation or drainage district, when any property within such district remains on the tax roll for which no certificate of delinquency has been issued, the sheriff of such county within which such property may be situated shall have the right and it shall be his duty without any action of the county court of said county, upon demand of such irrigation or drainage district and upon the payment of all taxes levied against such land, except the irrigation or drainage district tax included therein, with penalty and interest thereon, to make out and issue to such irrigation or drainage district a certificate of delinquency against such property for the full amount of taxes levied against said property, including the tax levied by such irrigation or drainage district, with penalties and interest accrued at said time or upon demand of any individual and upon payment of all taxes levied against such lands including the tax levied by such irrigation or drainage district, the sheriff of such county shall have the right and it shall be his duty, without any action of the county court of said county, to issue to such individual a certificate of delinquency against such property for the full amount of taxes, including the tax levied by such irrigation or drainage district, with penalties and interest accrued at said time, the certificate, whether issued to such irrigation or drainage district or to an individual, to be in such form and to have the same legal effect as is provided by the General Laws of the state of Oregon covering such matters."

Section 2 of the act provides for the foreclosure by the holder of such certificate at any time after one year from the first date of delinquency of any tax included in such certificate of delinquency.

Claiming under this statute, plaintiff filed in the circuit court a petition duly verified showing, among other things:

"That the Horsefly irrigation district, plaintiff and petitioner, is a quasi municipal corporation organized and existing under and by virtue of the laws of the state of Oregon for the purpose of the delivery of and furnishing water to the lands within its territory and confines for agricultural purposes, in the vicinity of Bonanza, in Klamath county, Or.

"That the defendant, Burt E. Hawkins, is the duly elected, qualified, and acting sheriff of Klamath county state of Oregon.

"That at and during all of the times and dates to which this petition relates, the following described lands were embraced within the boundary, and were within the territory of your said petitioner, the Horsefly irrigation district described as follows:

"The south half of the northeast quarter and the north half of the southeast quarter of section eighteen, township thirty-nine south, range twelve east of the Willamette Meridian in the county of Klamath, state of Oregon, and were lands held and owned by one Lola Driscoll.

"That for each of the years in this paragraph contained, said Horsefly irrigation district, your petitioner, at its several and annual tax levying and assessing periods, provided by law to be done, levied an assessment against said lands for irrigation, and district purposes, to the several amounts and which were extended upon the tax rolls of Klamath county, Oregon, and in turn said tax rolls were placed with the sheriff of Klamath county, Oregon, for the purpose of collection, in the following amounts and years, namely:

"1. For the year 1920, in the sum of $488.

"2. For the year 1921, in the sum of $399.25.

"3. For the year 1922, in the sum of $448.93.

"4. For the year 1923, in the sum of $486.98.

"5. For the year 1924, in the sum of $637.67.

"That

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