Oregon & C.R. Co. v. Lane County

• Decision Date: 09 January 1893
• Citation: 31 P. 964,23 Or. 386
• Parties: OREGON & C.R. CO. v. LANE COUNTY et al.
• Court: Oregon Supreme Court

31 P. 964

23 Or. 386

OREGON & C.R. CO. v. LANE COUNTY et al.

Supreme Court of Oregon

January 9, 1893

Appeal from circuit court, Lane county; MARTIN L. PIPES, Judge.

Bill in equity by the Oregon & California Railroad Company to enjoin James E. Noland, as sheriff, from selling certain lands of plaintiff for delinquent taxes. From a decree dismissing the complaint entered upon an order sustaining a demurrer to it plaintiff appeals. Reversed.

W.D. Fenton and E.R. Skipworth, for appellant.

Geo. A. Dorris, A.O. Woodcock, and L. Bilyen, for respondents.

LORD, C.J.

This is a suit in equity brought by the plaintiff, a corporation formed under the laws of this state, to have the defendant James E. Noland, as sheriff of Lane county, enjoined from selling certain lands of plaintiff for alleged delinquent taxes. In substance, the complaint shows that the plaintiff during the year 1890, was the owner and in possession of certain property in Lane county, known and designated generally as its interests in the lands granted by the act of congress of July 25, 1866, and certain other subsequent acts relating to said land grant; that, of the lands so granted there have been patented to the plaintiff 53,332.12 acres that there have been earned by the plaintiff 34,536.39 acres more of such lands, as well as 59,369.88 of selected indemnity lands, which the plaintiff is entitled to have patented under the grant, but that are unpatented, and that there are 90,371.23 acres of indemnity lands still unselected by it, but which, when selected, the company is entitled to have patented, etc.; that the lands so patented during the year 1890 were assessed by the defendant county, and the taxes thereon paid to the defendant Noland, as such sheriff of the county; that on or about the 1st day of April, 1891, the defendant Noland, as such sheriff, without authority of law, altered and added the assessment roll of Lane county for the year 1890 the unpatented lands aforesaid, as well as the unselected indemnity lands, and returned the said assessment roll to the county clerk so altered and added the aforesaid lands as delinquent for taxes thereon for the year 1890 in the sum therein specified, and that thereafter the county clerk prepared and returned to the defendant Noland, as such sheriff, a pretended delinquent roll, with a pretended warrant, regular on its face, commanding the sheriff to seize and sell the property described therein to satisfy the sum specified; that thereafter, and in pursuance of such pretended warrant, the said sheriff, at the date alleged, did levy upon the real property described to collect the said delinquent taxes, and will, unless restrained, etc., sell the same to satisfy such warrant, with costs accruing; that the sheriff placed upon and added to the said assessment roll, without notice to the plaintiff, the said property already described, and assessed and levied thereon a tax of 22 mills on the dollar, arbitrarily and without consideration of the value of any particular tract of said land, or in any way observing the laws relating to the assessment of property, and without notice, and intending to wrong the plaintiff, put an excessive valuation upon each acre of said land, etc., and that, in so altering and changing the roll by adding said property, and in assessing and levying a tax thereon, the said sheriff acted without authority of law, and that his acts are void, etc.; that the seizure of such lands, under the warrant aforesaid, is a cloud upon plaintiff's title, and that, unless restrained, it will lead to a multiplicity of suits, for the reasons therein alleged, etc.; wherefore the plaintiff asks that the injunction be made perpetual, and that said assessment be decreed to be void, etc. The defendants interposed a demurrer, that the complaint does not state facts sufficient to constitute a cause of suit, and, after argument, the court below sustained the same, and dismissed the complaint.

In the statement of the facts we have omitted some allegations, and only endeavored to state the substance and effect of the others, so as to present the essential and vital point which counsel for the plaintiff desire to have decided. This point goes to the jurisdiction of the sheriff to add to the assessment roll the lands omitted and not assessed, and to make any valid assessment thereon. Before, however, proceeding to consider this aspect of the question, it is necessary to determine whether all, or how much, of the lands granted, as alleged are subject to taxation. Upon this point our conclusion is that the lands earned and the selected indemnity lands, to which the plaintiff is entitled to receive a patent, are subject to taxation the same as the lands for which it has received a patent, and upon which, according to the facts alleged, it was assessed and paid the taxes; but as to the unselected indemnity lands specified, as advised at present, we are of the opinion that they are not subject to taxation until selected and identified as the lands of the plaintiff. It is true that the grant is in praesenti, and that the road is completed through the county, and that the patent to such lands to which the plaintiff is entitled, when selected and approved by the secretary of the interior, is only confirmatory of the title already granted to it; but, until so selected and approved, it would seem that the United States would have an interest in such lands, and that it would be difficult to assess them, as provided by our statute, unless the land grant in the county is taxable in solido, as unimproved lands. But the main contention for the plaintiff is that the sheriff had no authority in law to add the property which had been omitted to be assessed, to the assessment made by the assessor. The statute under which the sheriff acted is as follows: "Whenever the assessor shall have omitted to assess any real or personal property liable to taxation in his county, it shall be the duty of the sheriff, upon discovering such omission, to assess the same, and collect the taxes thereon, in like manner as other assessments are made and taxes collected; and such sheriff shall return, under oath, to the county clerk, the amount of taxes so assessed and collected by him." Hill's Code, § 2831. This section, it is insisted, is unconstitutional and void, because it does not provide for notice to the taxpayer. To appreciate the force of this objection, we must first understand what provision our statutes make for giving notice to those who own property liable to taxation. It is provided by section 2760 of Hill's Code that "each assessor shall give three weeks' public notice in some newspaper printed in his respective county, *** setting forth that on the last Monday in August the board of equalization will attend at the office of the county clerk of his county, and publicly examine the assessment rolls, and correct all errors in valuation, description, or qualities of lands, lots, or other property, and it shall be the duty of persons interested to appear at the time and place appointed; and if it shall appear to such board of equalization that there are any lands, lots, or other property assessed twice, or in the name of a person or persons not the owners thereof, or assessed under or beyond its actual value, or any lands or lots or other property not assessed, said board shall make the proper corrections." Section 2769 makes it the duty of any person liable to be taxed in his county to furnish the assessor a list of the real property situate in his county liable to taxation, and a list of all his personal property liable to taxation in this state. This list is to be verified by such person, that to the best of his knowledge and belief such list contains a "full and true account of all his property liable to be taxed in such county. ***" As STRAHAN, J., said: "The receiving of this list by the assessor is not an assessment of the property. It is simply a part of the means provided by law to aid the assessor in discovering and obtaining a true description of the property liable to taxation in his county. If satisfied of its truth and correctness, it is evidence upon which the assessor may act in making the assessment, or he may act on his own knowledge, or institute further inquiries, until all the property of each taxpayer in his county is placed upon his tax roll. The property is not assessed until it is set down in the assessment roll, as provided by section 2770 of Hill's Code." Bank v. Jordan, 16 Or. 115, 17 P. 621. Section 2778 provides that the county judge, county clerk, and assessor shall constitute the board of equalization to examine and correct the assessment roll, and to increase and reduce the value of property assessed in the manner...