McCain v. State Tax Commission

• Citation: 360 P.2d 778,227 Or. 486
• Parties: Cecil W. McCAIN, Appellant, v. STATE TAX COMMISSION, consisting of Dean Ellis, F. H. W. Hoefke and Charles H. Mack, Respondent.
• Decision Date: 05 April 1961
• Court: Supreme Court of Oregon

Page 778

360 P.2d 778

227 Or. 486

Cecil W. McCAIN, Appellant, v. STATE TAX COMMISSION, consisting of Dean Ellis, F. H. W Hoefke and Charles H. Mack, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 9, 1961.

Decided April 5, 1961.

Norman E. Anderson, Portland, argued the cause for appellant. On the brief were Reiter, Day & Anderson, Portland.

Richard Rink, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Alfred B. Thomas, Asst. Atty. Gen.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN, and LUSK, JJ.

LUSK, Justice.

Under date of October 14, 1959, the Oregon State Tax Commission entered its determination, in a proceeding pursuant to ORS 314.455, denying the plaintiff's claim of refund of income taxes theretofore, as plaintiff contends, unlawfully collected from him by the commission. Plaintiff received notice of such determination on October 15, 1959. On December 11, 1959, the plaintiff filed a complaint against the commission in the circuit court of Multonomah county for the purpose of obtaining relief from such determination as authorized by ORS 314.460(1), and on December 14, 1959, caused a duly certified copy of such complaint and a duly certified copy of a summons to be served by the sheriff of Marion county on Charles H. Mack, secretary of the commission.

Thereafter on March 14, 1960, the commission moved to quash the summons and complaint on the ground that a true copy of the complaint had not been served on the commission by registered mail and that more than 60 days had elapsed after notice by the commission of its determination had been received by the plaintiff. The circuit court on July 29, 1960, allowed this motion and plaintiff has appealed to this court assigning the ruling as error.

ORS 314.460(1) reads:

'An appeal from the determination of the commission upon the application made by the taxpayer for refund or revision of any tax, as provided for in ORS 314.455, may be taken by the taxpayer by filing a complaint against the commission in the circuit court of the county in which the taxpayer resides or has his principal place of business or in which is located the office of the commission and by serving a true copy thereof upon the commission by registered mail within 60 days after notice by the commission of its determination has been received by the taxpayer, given as provided in ORS 314.455. Thereupon appropriate proceedings shall be had and the relief, if any, to which the taxpayer may be found entitled may be granted and any such taxes, interest or penalties paid, found by the court to be in excess of those legally assessed, shall be ordered refunded to the taxpayer, with interest as provided by law. Such appeal shall proceed in the manner of a suit in equity and shall be a trial de novo except that the issues of fact and law shall be restricted to those raised by the parties in the appeal to the commission. If the court finds that other issues are important to a full determination of the controversy, it may remand the whole matter to the commission for further determination and the issuance of a new order. An appeal may be taken by the taxpayer or the commission to the Supreme Court in the manner that appeals are taken in suits in equity, irrespective of the amounts involved.' (Italics added.)

The foregoing section authorizes a special statutory proceeding not according to the course of common law. It prescribes the mode by which the circuit court may acquire jurisdiction of an appeal from the commission's determination, among other things by 'serving a true copy [of the complaint] upon the commission by registered mail.' It is exclusive and its provisions must be strictly pursued. Wadhams & Co. et al. v. State Tax Comm., 202 Or. 132, 137, 273 P.2d 440; Gerber v. State Ind. Acc. Comm., 164 Or. 353, 355, 101 P.2d 416; Jackson v. State Industrial Acc. Comm., 114 Or. 373, 376-377, 235 P. 302; Demitro v. State Industrial Acc. Comm., 110 Or. 110, 112, 223 P. 238; Re Estate of Stewart, 110 Or. 408, 412, 223 P. 727; Hooper v. Hooper, 67 Or. 187, 189, 135 P. 205, 525. The plaintiff argues that the use of the word 'may' indicates that the provision is permissive, not mandatory, and that the taxpayer therefore is left free to adopt a different procedure than that laid down in the statute. We think that the word 'may' in this context is permissive in the sense that it expresses the grant of a remedy which, but for the statute, would not have existed. But the means designated for making the remedy available to the taxpayer are an integral part of the grant. If this were not so, then, under plaintiff's contention, not only would he be free to ignore the direction to serve a copy of the complaint on the commission by registered mail, but he might have dispensed with filing a complaint in the circuit court and have served a notice of appeal on the commission instead, or he might have filed the complaint in some other county than that in which he resided or had his principal place of business, or even have chosen not to be bound by the 60-day limitation; for all these procedural provisions are as much dependent on the phrase '[a]n appeal * * * may be taken by the taxpayer' as is the requirement of service on the commission by registered mail. All are essential to the acquiring of jurisdiction of the cause by the circuit court.

Directly in point is Demitro v. State Industrial Accident Commission, supra. The Workmen's Compensation Law authorized an appeal from a decision of the State Industrial Accident Commission to the circuit court. Oregon Laws, § 6637, provided:

'* * * It shall be sufficient to give the circuit court jurisdiction that a notice be filed with the clerk of said court to the effect that an appeal is taken to the circuit court from the decision of the commission, the same to be signed by the party appealing or his attorney, and a copy thereof to be served by registered mail on the commission. * * *'

A claimant seeking to appeal from a decision of the commission, instead of serving a copy of his notice of appeal on the commission by registered mail, filed with the circuit court a notice of appeal with an acceptance of service by one of the commissioners endorsed thereon. This court held that the circuit court never acquired jurisdiction of the cause, saying:

'The whole scheme of the workman's compensation law is purely statutory and not according to the course of common law. It is elementary that in acquiring jurisdiction in pursuit of a statutory remedy, the requirements of the enactment must be complied with strictly. * * *' 110 Or. at page 112, 223 P. at page 238.

The Demitro case is sought to be distinguished on the ground that, as the court there said, '[t]he whole scheme of the workman's compensation law is purely statutory', whereas ORS 314.460, it is argued, does not provide a time within which the commission shall answer nor how it shall appear. It may be that the provision of the section that 'such an appeal shall proceed in the manner of a suit in equity' is sufficiently broad to be deemed an adoption of the general statutes prescribing the time and manner for appearance by the defendant in such a suit. If not, then the court would be authorized to adopt 'any suitable process or mode of proceeding' as provided by ORS 1.160. ¹ However that may be, the mode of acquiring jurisdiction in an appeal from the determination of the tax commission is 'purely statutory' and complete in itself and no failure to prescribe specifically the proceedings after jurisdiction has once attached can affect the exclusive and mandatory nature of the jurisdictional requirements.

It is further suggested that the Demitro case should be overruled. We cannot yield to this suggestion for the decision is in harmony with the uniform course of decision by this court in similar cases and is a proper application of an elementary rule of statutory construction.

Cases involving appeals from the circuit court to the Supreme Court are in point, counsel for the plaintiff to the contrary notwithstanding, because and appeal like the proceeding with which we are now dealing is a pure creature of statute. The right to appeal 'exists only by virtue of the statute, and if the application of the enactment is burdensome, it is not the province of the courts to amend the same or to dispense with its requirements.' In re Waters of Chewaucan River, 89 Or. 659, 667, 171 P. 402, 404, 175 P. 421. And, as we said in re Estate of Stewart, supra, 110 Or. 412, 223 P. 727, 729 '[s]tatutes providing for a particular kind of service are always...