Northern Wasco County People's Utility Dist. v. Wasco County

• Decision Date: 09 January 1957
• Citation: 305 P.2d 766,210 Or. 1
• Parties: NORTHERN WASCO COUNTY PEOPLE'S UTILITY DISTRICT et al., Plaintiffs-Respondents, Cross-Appellants, v. WASCO COUNTY et al., Defendants-Appellants, Cross-Respondents, Dalles City et al., Intervenors uniting with Defendants-Appellants.
• Court: Oregon Supreme Court

Page 766

305 P.2d 766

210 Or. 1

NORTHERN WASCO COUNTY PEOPLE'S UTILITY DISTRICT et al Plaintiffs-Respondents, Cross-Appellants, v. WASCO COUNTY et al., Defendants-Appellants, Cross-Respondents Dalles City et al., Intervenors uniting with Defendants-Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 20, 1956.

Decided Jan. 9, 1957.

Raymond M. Kell, Portland, argued the cause for plaintiffs-respondents and cross-appellants. With him on the brief was Clifford B. Alterman, Portland.

Theodore W. de Looze, Asst. Atty. Gen., argued the cause for Robert Y. Thornton, Atty. Gen. With him on the brief were Donald E. Heisler, The Dalles, for defendants-appellants and cross-respondents, and Charles A. Phipps, The Dalles, for intervenors uniting with defendants-appellants and cross-respondents.

ROSSMAN, Justice.

This is an appeal from a decree of the circuit court which it entered in a declaratory judgment proceeding instituted by the plaintiff, Northern Wasco County People's Utility District and five individuals who are the board of directors of that quasi-municipal corporation.

The plaintiffs are the municipal body and individuals just mentioned. The defendants are Wasco County, the County Court of that county, several officials of Wasco County and the Attorney General of Oregon. Dalles City, Oregon Business and Tax Research, Inc., and five Wasco County taxpayers became intervenors. Hereafter our use of the word plaintiff will refer to Northern Wasco County People's Utility District. Instead of using the term defendants or appellants we will speak of the county, it being the tax-levying body.

The challenged decree held that (1) Oregon Laws 1939, ch. 343, § 1, subd. 14, which undertook to amend Oregon Laws 1909, ch. 218, violated Oregon Constitution, Art. IV, § 20, inasmuch as its subject matter was not within the title of the 1909 act; (2) Oregon Laws 1939, ch. 387, § 10, did not empower the State Tax Commission to assess the plaintiff's property for 1950; and (3) Oregon Laws 1939, ch. 387, § 10, and Oregon Laws 1951, ch. 586, § 2, subd. 14, empowered the tax commission to assess the plaintiff's property for taxation for 1951, 1952 and 1953. The tax commission relied in part upon Oregon Laws 1939, ch. 343, § 1, subd. 14, when it assessed the plaintiff's property for the year 1950.

The challenged decree held invalid the 1950 assessment, but sustained the validity of the other three.

As is evident from what has been said, the property taxes under review were assessed and levied against the plaintiff pursuant to two statutes adopted in 1939: One, Oregon Laws 1939, ch. 387, § 10, amended the People's Utility District law, Oregon Laws 1931, ch. 279, to provide that electric properties of districts should be assessed and taxed in the same manner as similar property owned by private corporations; the other, Oregon Laws 1939, ch. 343, § 1, subd. 14, was an amendment to Oregon Laws 1909, ch. 218, which created the State Tax Commission. The amendment added people's utility districts to the companies whose properties were assessable by the tax commission.

As we proceed we will continue to refer to the session laws rather than to the places in ORS where they now appear. However, we will now state briefly where the legislation so far mentioned may be found in ORS. The enactment of legislation for the creation of people's utility districts was authorized when Art. XI, § 12, was added to the Constitution of Oregon. See Oregon Laws 1931, p. 7. Following the adoption of that constitutional amendment, Oregon Laws 1931, ch. 279, p. 477, was enacted making provision for people's utility districts. That act, as subsequently amended, is ORS 261.005 through 261.730. Oregon Laws 1909, ch. 218, since amended, which created the State Tax Commission and conferred upon it power, is ORS 306.010 through 308.820.

The following defendants each filed notices of appeal: (1) the Attorney General, (2) Dalles City, and (3) Wasco County, its county court and aforementioned officials. The plaintiffs cross-appealed. The three notices of appeal challenged the holdings that Oregon Laws 1939, ch. 343, § 1, is invalid and that Oregon Laws 1939, ch. 387, § 10, did not authorize the 1950 assessment. The cross-appeal singled out as the subject of its attack the part of the decree which sustained the validity of the assessments for 1951, 1952 and 1953.

As is apparent from the foregoing, the plaintiff instituted this proceeding to secure a declaratory decree holding that it is not subject to ad valorem property taxes levied in the years 1950 through 1953. We will now consider the validity of the 1950 assessment.

In behalf of the county it is argued that the 1950 assessment can be sustained upon any of the following bases: (1) Oregon Laws 1939, ch. 343, § 1, subd. 14, did not at the time of its enactment violate Oregon Constitution, Art. IV, § 20; (2) if the 1939 act just mentioned violated Oregon Constitution, Art. IV, § 20, then it was validated by the 1952 amendment of Art. IV, § 20, or by the long period of legislative acquiescence, or by the enactment of Oregon Laws 1951, ch. 586, § 29; (3) the 1950 assessment was independently authorized by Oregon Laws 1939, ch. 387, § 10.

Constitution of Oregon, Art. IV, § 20, prior to its amendment in 1952, read:

'Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.'

Similar, and in many instances, identical, provisions are found in the constitutions of other states. They were enacted to prevent concealment from the public, as well as of the members of the legislature, of the true nature of the provisions of a bill and of logrolling practices.

The question presented here is the validity of that part of subd. 14, § 1, ch. 343, Oregon Laws 1939, purporting to authorize the State Tax Commission to assess the property of people's utility districts. Since ch. 343, Oregon Laws 1939, amended ch. 218, Oregon Laws 1909, the provisions of the former must, therefore, be tested for their validity under Art. IV, § 20, as if they had been included in the 1909 enactment itself. Administrator of Veterans' Affairs v. United States National Bank of Portland, 191 Or. 203, 229 P.2d 276. The title of ch. 218, Oregon Laws 1909, consumes almost a page of fine print, but, as pertinent, reads:

'An Act To create a Board of State Tax Commissioners, and to prescribe the membership thereof and its powers and duties, meetings and procedure, and for appeals therefrom; * * * providing for the assessment for taxation by it and apportionment to the several counties of the property of railway, union station and depot, electric and street railway, refrigerator car, oil and tank line companies, owners and operators, and of such heat, light, power, water, gas and electric companies as may be doing business as one system, partly within this State and partly without or so doing business in more than one county of the State, * * *.'

The county concedes that the district, its business being confined wholly within one county, is not one of the types of companies enumerated in the title of the 1909 act.

Applicability of Art. IV, § 20, to acts, the provisions of which were not specifically set out in their titles, has been tested in a great body of decisions by this court. Because we believe that the title here under consideration is of a unique type, the three types found will be explained and illustrated. The first type, broad in scope, may be called general and is exemplified by the titles under consideration in the following cases: State v. Shaw, 22 Or. 287, 29 P. 1028 ('An Act To Protect Salmon and Other Food Fishes in the State of Oregon, and Upon All Waters Upon Which This State Has Concurrent Jurisdiction, and to Repeal * * *') Laws 1891, p. 33; Lovejoy v. City of Portland, 95 Or. 459, 188 P. 207 ('An Act To provide for the regulation and supervision of insurance in the State of Oregon, other than State Industrial Accident Insurance, and repealing * * *') Laws 1917, c. 203; Calder v. Orr, 105 Or. 223, 209 P. 479 ('An Act To provide for surveying, opening, constructing, improving, reconstructing, repairing and maintaining public roads, and repealing * * *') Laws 1917, c. 299; and In re Board of Directors of Tillamook People's Utility District, 160 Or. 530, 86 P.2d 460 ('An Act Relating to and providing for peoples' utility districts, and providing a penalty for violation of certain parts thereof.') Laws 1931, c. 279.

The second type, narrower in scope, may be termed restrictive. This type is found in First National Bank of Corvallis v. Benton County, 175 Or. 485, 154 P.2d 841 ('An Act * * * to provide for the collection of taxes on personal property where such taxes may not become a lien on sufficient real property to insure the payment thereof.') Laws 1913, c. 147; and Administrator of Veterans' Affairs v. United States National Bank of Portland, supra, ('An Act Requiring guardians of minors, insane and incompetent persons receiving pensions, compensation, insurance or other benefit from the United States to serve certain petitions and accounts upon representatives of the United States government.') Laws 1927, c. 424.

The third type, illustrated by the title at issue in this case, has been considered by this court in far fewer cases than either of the other two types. It may be called the general and specific type; that is, its initial phases are analogous to the general type of title, but instead of stopping there it proceeds to set out a complete or partial index to the provisions of the act. Other examples of this type are found in Eastman v. Jennings-McRae Logging Co., 69 Or. 1, 138 P. 216, and Foeller v. Housing Authority of Portland, 198 Or. 205, ...