McCain v. State Tax Comn.

• Decision Date: 11 July 1961
• Citation: 363 P.2d 775,227 Or. 486
• Parties: Cecil W. McCAIN, Appellant, v. STATE TAX COMMISSION, consisting of Dean Ellis, F. H. W. Hoefke and Charles H. Mack, Respondent. . Rehearing Denied
• Court: Oregon Supreme Court

Page 775

363 P.2d 775

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, In Banc.

Rehearing Denied July 11, 1961.

Dissenting Opinion Filed July 12, 1961.

Reiter, Day & Anderson, Portland, for petition.

Robert W. Thornton, Atty. Gen., and Richard Pink, Asst. Atty. Gen., contra.

SLOAN, Justice (dissenting).

Since I did not participate in the decision of this case I could not express my disagreement with it. The case is now here on motion for rehearing. Such a motion reaches all the court. It provides an opportunity to briefly express the reasons for disagreement.

ORS 314.460(1) says this:

'* * * 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 * * *. 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. * * *'

The majority says that the service of the complaint 'upon the commission by registered mail' is unequivocal and mandatory. 360 P.2d 778. The purpose of this statute was thereby defeated. That purpose was, and is, to give every aggrieved taxpayer easy access to the courts. The statute was not intended to create technical hurdles or to apply the construction given that the taxpayer must trod lightly and warily if he is to get into court. We should not say that the statute requires strict compliance. We should say that the form of notice to the commission was permissive and not mandatory. And that any other equivalent or superior service otherwise provided by statute is sufficient.

In this case the taxpayer utilized a superior form of service provided by the statute (ORS 15.080) which, without restriction, establishes the method of serving summons in every kind of case. That statute provides:

'* * * The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows:

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'(2) If against any county, incorporated city, school district, or other public corporation, commission or board in this state, to the clerk or secretary thereof. If...