Oregon City v. Clackamas County

• Decision Date: 28 February 1898
• Citation: 52 P. 310,32 Or. 491
• Parties: OREGON CITY v. CLACKAMAS COUNTY et al.
• Court: Oregon Supreme Court

52 P. 310

32 Or. 491

OREGON CITY v. CLACKAMAS COUNTY et al.

Supreme Court of Oregon

February 28, 1898

Appeal from circuit court, Clackamas county; T.A. McBride, Judge.

Proceedings by Oregon City against Clackamas county and others to review the action of the county court while exercising the powers pertaining to county commissioners in disallowing a claim by the city for the amount of certain road taxes. From a judgment in favor of plaintiff, defendants appeal. Modified.

H.E. Cross, for appellants.

C.D Latourette, for respondent.

WOLVERTON J.

The purpose of this proceeding is to review the action of the county court while exercising the powers pertaining to county commissioners, in disallowing and rejecting a claim by the city for the amount of the road taxes levied by the county in pursuance of subdivision 4, § 4085, Hill's Code, as amended in 1893 (Sess.Laws, p. 60), and collected from persons and property within the city limits for 1895 and 1896. The city bases its right to such taxes solely upon section 28 of chapter 5 of its charter, as amended in 1895 which reads as follows: "The council shall have exclusive control and direction of all funds collected under general laws for the improvement of roads and streets within said corporation, and the street superintendent shall perform the duties of supervisor as required by the general laws of this state relating to streets and highways but he shall report to and be under the direction of the city council, and not to the board of county commissioners of Clackamas county: provided, that the city council may, by ordinance, direct that any or all of such funds collected for road purposes be expended on any main county road leading into Oregon City when, in their judgment, the city would be benefited thereby: provided, that the city council shall turn over to the county court of Clackamas county forty per cent of the funds so collected each year and the same shall be expended under the direction of said county court on main roads leading into Oregon City." Laws 1895, p. 495. This section seems to have been drawn under the mistaken idea that road taxes levied by a county court were to be collected by a city officer, and apportioned by the city council; else why should it provide that 40 per cent. thereof should be turned over to the county court. It was certainly not intended that the county court should turn over the whole amount collected to the city, and that thereupon the city should return 40 per cent. to the county. If so, it introduces a novel and useless procedure, without the accomplishment of any specific purpose. It is somewhat difficult to determine just what was intended to be accomplished by its adoption. We believe however, that its legal effect is to withdraw the territory comprised within the city limits from the jurisdiction of the county court to lay it off into road districts, or to control the expenditure of road taxes therein. The city is authorized to direct the expenditure of the road fund to which it is entitled, and is given somewhat enlarged powers touching it, in that it may, if it so ordains, apply all or any part of it upon any main county road leading into the city. It has been decided that the taxes which go to make up the fund alluded to, when levied by the county court and collected by the sheriff, belong to the county until apportioned by such court, and that the act of apportionment is...