Leffingwell v. Lane County

• Decision Date: 28 January 1913
• Citation: 64 Or. 144,129 P. 538
• Parties: LEFFINGWELL v. LANE COUNTY et al.
• Court: Oregon Supreme Court

129 P. 538

64 Or. 144

LEFFINGWELL v. LANE COUNTY et al.

Supreme Court of Oregon

January 28, 1913

Appeal from Circuit Court, Lane County; L.T. Harris, Judge.

Suit by Madalon Leffingwell against the County of Lane and others. From a decree dismissing the suit, plaintiff appeals. Reversed and remanded.

Bean J., dissenting.

The plaintiff is the owner in fee simple of a quarter section of vacant land in road district No. 2 of Lane county, Or., and brings this suit against the county, the county judge, the commissioners, and sheriff to quiet her title against any claim by the defendants in their official capacity in the enforcement of a tax, the levy of which is said to have been attempted by the taxpayers of said district in December 1910. She avers payment by her in full prior to the commencement of this suit of all other taxes of every kind charged against her land mentioned on the assessment roll of that year, and says that the county court of the defendant county never levied on that roll any tax of any kind except what she has already paid as stated. Her complaint contains these allegations: "That on the 20th day of December 1910, there was filed in the office of the clerk of Lane county a certificate of taxpayers' road district meeting in words and figures as follows: 'To E.U. Lee, County Clerk of Lane County, Oregon: We, the undersigned duly elected chairman and secretary of the taxpayers' meeting of road district No. 2, of Lane county, Oregon, held on the 17th day of December, 1910, at the hour of 1 o'clock p.m of said day for the purpose of voting upon the question of levying an additional tax upon the taxable property of said district for the purpose of improving the roads of said district, do hereby certify that at said meeting the taxpayers of said road district by a majority vote of the taxpayers present at said meeting voted to levy an additional tax of seven mills on each dollar of the taxable property of said district to improve the roads of said district. Dated this 17th day of December, 1910. Glen O. Powers, Chairman. Chester E. Edwards, Secretary.' That no additional paper in reference to said taxpayers' meeting, the calling of the same, the giving of notice thereof, or what was done thereat has been at any time flied or of record with any officer of said Lane county or any department of its government. That the meeting mentioned was not called by the supervisor of said district, but was called by persons claiming to constitute more than 10 per cent. of the taxpayers of said district who caused notice of said taxpayers' meeting to be posted in three places in said district and to be published for three weeks prior to said meeting in the Eugene Twice a Week Register, a paper of general circulation, printed and published at Eugene Or." She alleges that, solely by authority of the certificate quoted, the county clerk extended upon the assessment roll of 1910 the tax mentioned in the certificate, that the tax roll has been placed in the hands of the defendant sheriff for the collection and enforcement of the taxes, and that the defendants and all of them claim that the said taxpayers' road district levy appearing upon the roll is a valid and subsisting lien upon the plaintiff's land, and the sheriff threatens to enforce the same by the usual method for collecting taxes. On a general demurrer to this complaint a decree was passed dismissing the suit, and the plaintiff appeals.

S.D. Allen, of Eugene, for appellant.

E.R. Bryson, of Eugene (Potter & Bryson, of Eugene, on the brief), for respondents.

BURNETT, J. (after stating the facts as above).

In 1903 the legislative assembly passed an act on the subject of roads and highways designed to supersede all previous legislation on that subject. Laws 1903, p. 262. Section 34 of that act compiled as section 6320, L.O.L., empowered the county court to levy a tax of not exceeding 10 mills on the dollar on all taxable property of the county at the time of making the annual tax levy on the previous year's assessment which should be set aside as a general road fund, one-half to be apportioned among the several road districts according to the amount of taxable property in each and the remainder to be kept in the general county road fund. Other sections of the act provided for calling district road meetings and defined their powers. So far as deemed material they are here set out: "Whenever three freeholders of any road district in this state shall petition the road supervisor of such district to call a district road meeting of the legal voters of the district and shall state in such petition the object for which the meeting is desired, the supervisor shall cause written notices of such meetings stating the objects thereof and the time and place of holding the same and signed by himself to be posted in three public places in the district at least ten days before the day appointed for the meeting and the said supervisor shall make due proof of the giving of such notice by affidavit, which proof together with the petition calling for the meeting shall be filed with the secretary of the meeting and shall become a part of the minutes thereof." L.O.L. § 6384. "District road meetings legally called shall have power to determine what, if any, county roads or portions thereof of the road district shall be improved in any special manner and to determine the extent and character of the improvement or improvements they shall make thereon *** and shall have power to levy a special tax not to exceed ten mills on the dollar upon all the taxable real and personal property of the district for the purpose of raising money with which to defray the expense of such special improvement or improvements. ***" Section 6386, L.O.L. "If any road district in this state shall determine to specially improve any county road or roads or portions thereof in such district and to levy a special tax to defray the expense thereof as...