Multnomah County v. Mittleman
| Decision Date | 03 February 1976 |
| Citation | 24 Or.App. 237,545 P.2d 622 |
| Parties | MULTNOMAH COUNTY, a political subdivision of the State of Oregon, Appellant, v. Harry MITTLEMAN and Harry Mittleman, Inc., formerly known as Hoyt Corporation, Respondents. |
| Court | Oregon Court of Appeals |
Martin B. Vidgoff, Deputy County Counsel, Portland, argued the cause for appellant. With him on the brief were George M. Joseph County Counsel, and Charles S. Evans, Chief Deputy County Counsel, Portland.
Lee A. Hansen, Portland, argued the cause for respondents. With him on the brief were Brown, Hansen & Steenson, P.C., Portland.
Before FOLEY, P.J., and FORT and LEE, JJ.
Plaintiff county by ordinance effective July 1, 1971, imposed a tax on real property transfer documents tendered to the county for recording. The ordinance contained an emergency clause. The parties agree in the stipulated facts that at the time of the events involved here the powers of the initiative and referendum were to be exercised in the manner provided by state law. Both plaintiff and defendants agree that such an emergency enactment by the county is not subject to referendum under the Constitution of Oregon. 1
Nevertheless, two administrative officers of the county, the Chief Civil Deputy District Attorney and the Director of Records and Elections, cooperated with a Portland attorney in assisting referendum petitioners to put on the November 7, 1972, election ballot a referendum purportedly submitting to the voters the document-taxing ordinance. At that election a decisive majority of those voting on the supposed referendum voted against approval of the ordinance. There is nothing in the record to indicate that the two administrative officers of the county were aware of the questionable validity of the referendum or that they acted otherwise than in good faith.
Meanwhile, on July 31, 1972, about 13 months after the ordinance was passed and about three months before the referendum vote, the defendants tendered for recording a $16 million deed upon which the tax was calculated to be $17,600. The deed was recorded but the defendants refused to pay the tax and this action by the county to recover judgment for the $17,600 plus interest and costs resulted.
Defendants contend that the ordinance, while not initially subject to referendum because of the emergency clause, became subject thereto because of the conduct of the two county administrative officers in cooperating in putting it on the ballot and because plaintiff's Board of County Commissioners '* * * took no action * * * to prevent the referendum measure from being placed on the ballot.' More specifically, they contend that the act of the county Director of Elections in certifying the referendum petitions constituted a waiver or implicit repeal by the county of the emergency clause.
Defendants also contend that the county is estopped to assert the emergency clause or the invalidity of the referendum, that counties are not permitted to declare an emergency in any act regulating taxation, and that no emergency, in fact, existing at the time the ordinance was adopted. Finally, the defendants claim that the ordinance interfered with a predominantly state function and was thus unconstitutional.
The trial court considered the matter on the pleadings and stipulated facts. It held that the county, '* * * by its acquiescence to said referendum * * * waived any application of or effect * * *' of the emergency clause. The court made no findings on the other contentions of defendants.
We turn first to this determination by the trial court.
There is nothing in the record to indicate that the Board of County Commissioners, the county's legislative body, was directly or affirmatively involved in the events resulting in placement of the referendum on the ballot. Defendants contend only that the board did nothing to discourage or prevent the events. The finding of the court presupposes the authority of the administrative officers of the county as distinguished from the legislative body of the county, the Board of County Commissioners, to waive the emergency clause. Such action by an administrative officer, whether relied on or not, cannot make an illegal determination by the administrative official legal. Kays v. McCall, 244 Or. 361, 372, 418 P.2d 511 (1966).
In Kays our Supreme Court affirmed a finding that a certification of signatures was defective where an administrative officer, the Director of Elections, misled sponsors of the initiative with respect to the number of signatures required for the certification. The certification was defective as a result of misinformation regarding the manner in which the requisite number of signatures should be computed. The following language of the court militates against a determination in this case that the action of the administrative agents constituted a waiver or implied repeal of the emergency clause:
'Defendants urge, in effect, that because they relied upon the declaration of the Director of Elections we should treat their petition as valid even though it fails to meet the statutory standard. * * *
'Stripped of its argumentative trappings, defendants' contention amounts to no more than a request that we give judicial sanction to an erroneous administrative determination simply because it was relied upon by them. This would indeed be a dangerous doctrine. It would, in effect, substitute administrative judgment for that of the judiciary. There is abundant authority recognizing that this should not be done.
(Footnote omitted.) 244 Or. at 372--73, 418 P.2d at 516.
See also Stuart v. Weldon, 245 Or. 203, 421 P.2d 367 (1966).
In addition, our research discloses no authority suggesting that a legislative body can 'waive' an emergency clause except through express repeal or some other legislative action which has the effect of an implied repeal.
Defendants contend that no action by the board was necessary to repeal the emergency clause and make the ordinance subject to referral, but that the action of the two administrative officers was sufficient. They cite Roy v. Beveridge, 125 Or. 92, 266 P. 230 (1928), as supporting that contention. In that case the Portland City Council adopted an ordinance referring to the people another ordinance which that body had enacted and declared to be an emergency measure. The issue before the Supreme Court was whether the referring ordinance itself was subject to referendum. The court held that the referring ordinance was an 'administrative' rather than a 'legislative' act by the council and that 'administrative' acts are not subject to referral. The case did not hold that administrative officers of the county could repeal the emergency clause. To so extend the holding would empower administrative officers to refer any emergency enactment of the legislative branch. Neither Roy v. Beveridge, supra, nor any other case we have been able to find discussing the 'legislative'-'administrative' distinction holds or even suggests that the actions involved herein could have constituted a repeal or waiver by administrative officers instead of the legislative body. Indeed, those cases do not discuss who may act to repeal or waive an enactment but, rather, what kinds of acts of legislative bodies may be referred. See State ex rel Allen v. Martin, 255 Or. 401, 465 P.2d 228 (1970); Tillamook P.U.D. v. Coates, 174 Or. 476, 149 P.2d 558 (1944); Whitbeck v. Funk, 140 Or. 70, 12 P.2d 1019 (1932); Monahan v. Funk, 137 Or. 580, 3 P.2d 778 (1931).
We turn now to defendants' alternative contentions. Defendants contend the county is estopped to deny the validity of the referendum and waiver of the emergency clause. They cite Bankus v. City of Brookings, 252 Or. 257, 449 P.2d 646 (1969), as supporting their position. There, a city recorder issued a permit which purported to waive a mandatory provision of an ordinance. The holding by our Supreme Court was that a purported waiver of a mandatory provision could not be the basis for a claim that the municipality is estopped. The court there stated:
'* * * Nor may a city be estopped by the acts of a city official who purports to waive the provisions of a mandatory ordinance or otherwise exceeds his authority. * * *' 252 Or. at 260, 449 P.2d at 648.
In addition, the elements of estoppel were not established in the record. 2 There is nothing in the record to suggest that defendants when tendering their deed for recording were relying on the pending referendum election. Nor is this a case where estoppel need not be expressly pleaded because the elements thereof can be inferred from the pleadings. See Brandtjen & Kluge v. Biggs, 205 Or. 473, 288 P.2d 1025, 51 A.L.R.2d 1435 (1955).
Defendants also contend that no emergency, in fact, existed. In Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222 (1903), the Supreme Court held that declarations of emergency are not reviewable. There the court said:
'* * * Most unquestionably, those who make the laws are required, in the process of their enactment, to pass upon all questions of expediency and necessity connected therewith, and must therefore determine whether a given law is necessary for the preservation of the public peace, health, and safety.
'It has always been the rule, and is now everywhere understood, that the judgment of the legislative and executive departments as to the wisdom, expediency, or necessity of any given law is conclusive on the...
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