McNary v. Wrightman

• Citation: 52 P. 510,32 Or. 573
• Parties: McNARY v. WRIGHTMAN, Sheriff.
• Decision Date: 14 March 1898
• Court: Supreme Court of Oregon

52 P. 510

32 Or. 573

McNARY v. WRIGHTMAN, Sheriff.

Supreme Court of Oregon

March 14, 1898

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Mandamus by H.P. McNary, receiver of the Williams & England Banking Company, insolvent, against F.T. Wrightman, sheriff. From a judgment sustaining a demurrer to an alternate writ petitioner appeals. Reversed.

This is a mandamus proceeding to compel the sheriff of Marion county to accept the amount of tax apportioned to and levied upon certain real property, and to execute a receipt therefor evidencing a payment thereof in full. It is stated in the petition that in the year 1895 the county assessor of Marion county assessed to one George Williams, the then owner thereof, lots 1, 2, 13, and 14, and the west half of lot 12 in Cartwright's Second addition to the city of Salem, and placed a value thereon of $6,500, but this appraisement was increased by the state board of equalization to $7,020; that the county court, for the purpose of raising a revenue for state, county, and school purposes, levied a tax for that year of 26 mills on each dollar of the assessed value of the real and personal property of said county, as equalized by said state board; that in March, 1896, the county clerk extended the taxes so levied, and apportioned the sum of $182.52 to the real property hereinbefore described, and thereupon delivered the tax roll to one John Knight, then sheriff, with a warrant thereto attached, commanding him to collect the taxes so apportioned; that on May 20, 1896, at a judicial sale of all the right, title, and interest of George Williams in or to said real property, petitioner, as the receiver of the Williams & England Banking Company, an insolvent corporation, became the purchaser thereof, and on the 24th of the next month tendered to Knight the sum of $182.52, in full payment of the tax, and demanded a receipt in full, evidencing the payment thereof, but that officer refused to comply with the request; that the defendant F.T Wrightman is the successor in office of Knight, and on August 13, 1896, petitioner tendered to him said sum, and made the same demand, but Wrightman refused to comply therewith. An alternate writ of mandate was thereupon sued out, commanding defendant forthwith to accept said sum in full payment of said taxes due for 1895, and to execute a receipt therefor or show cause why he had not done so. A demurrer to the writ having been sustained, the court dismissed the proceeding, and the petitioner appeals.

W.T. Slater, for appellant.

Geo. G. Bingham, for respondent.

MOORE, C.J. (after stating the facts).

It is admitted that, at the time the assessment in question was made, George Williams was the owner of other property in said county, which was also assessed to him, but the taxes levied thereon had not been paid when the tender relied upon was made; and the question presented for consideration by this appeal is whether the petitioner who obtained a lien upon real property which was separately assessed, can pay the taxes levied thereon, and obtain a discharge therefrom, notwithstanding the owner may have other property upon which the taxes have not been paid. Counsel for petitioner contend that at common law a tax was a burden imposed by the sovereign upon the subject, measured, in most instances, by the property the latter possessed; that a lien is a creature of the statute, and, being in derogation of the ancient law, it should never be enlarged by construction; that our statute does not in positive terms make a tax levied upon real property a lien thereon; but that having admitted the existence of such a charge, by tendering the taxes due upon said real property, their client is entitled to obtain a discharge of the premises from the tax levied thereon; while counsel for defendant insist that a consideration of the whole scheme of assessment and taxation discloses that it was the intention of the legislative assembly that all taxes charged to a person should become a lien upon his real property, and that, if it should be held otherwise, petitioner's claim to relief is not free from doubt, and, such being the case, mandamus will not lie to compel the sheriff to accept the tax, and discharge the particular property from the levy thereof. In the case at bar it is admitted by the tender that the taxes levied upon the particular real property were a charge against it; so that the inquiry is confined to a consideration of the question whether such property is burdened with a general lien in consequence of taxes levied upon other property of the taxpayer prior to the said purchase by the petitioner.

The statute requires the assessor to assess all taxable property within his county to the persons owning the same on March 1st of each year at the hour of 1 o'clock a.m. (Laws 1893, p 6), and to set down in the assessment roll the names of all taxpayers, a description of each tract...