Oregon R. & Nav. Co. v. Umatilla County

• Citation: 47 Or. 198,81 P. 352
• Parties: OREGON R. & NAV. CO. v. UMATILLA COUNTY et al. [*]
• Decision Date: 03 July 1905
• Court: Supreme Court of Oregon

81 P. 352

47 Or. 198

OREGON R. & NAV. CO. v. UMATILLA COUNTY et al. ^[*]

Supreme Court of Oregon

July 3, 1905

Appeal from Circuit Court, Umatilla County; W.R. Ellis, Judge.

Writ of review by the Oregon Railroad & Navigation Company against Umatilla county and others to review an assessment of taxes. From a judgment in favor of plaintiff for part only of the relief demanded, it appeals. Affirmed.

This is a proceeding by writ of review, to annul and declare void an order of the county court of the defendant county, levying a tax upon the property of the plaintiff, as shown by the assessment roll for the year 1903. The petition for the writ contains many averments which are denied by the answer or return, but, as questions of fact cannot be tried in this proceeding, they will not be further noticed. From the return to the writ it appears that each page of the assessment roll for 1903 was divided horizontally into 29 lines, and perpendicularly into 34 columns. At the top of the perpendicular columns were printed the words: "Name of Taxpayer"; "Description of Land" "Section"; "Township"; "Range" "Name of Recorded Town or City"; "No. of Miles R.R. Bed, Tel'p, Tel'g, Etc. Lines" "School Districts"; "Road Districts" "Name of Incorporated City or Town"; and the like. In making up the roll, the assessor subdivided, described, and valued the property of each taxpayer with reference to its location in the several school and road districts and incorporated towns and cities of the county, and therefore the assessment of the plaintiff covered nine or ten pages of the roll. At the upper left-hand corner of each page of such assessment, in the column headed "Name of Taxpayer," are written the letters and word "O.R. & N. Co., The," and at the bottom of the page the abbreviated word "Contd," but the name of the taxpayer is not entered in the roll opposite the description of each separate parcel of property, nor is it indicated by ditto marks. Among the property assessed to the plaintiff are some 22 lots in 3 different blocks, in what is entered in the column headed "Name of Recorded Town or City" as "Res. Add. Pend.," and in the column headed "Name of Incorporated City or Town" as "Pendleton." So that the description as it appears in the roll, taking one lot as an example, would be "Lot 6, Block 3, Res. Add. Pend., City of Pendleton." There is also assessed to the plaintiff telegraph lines, which were entered in the column headed "Description of Land" as "One Wire System Telegraph" or "Two Wire System Telegraph," as the case might be, and in the columns headed "Name of Incorporated City or Town," "Road District," and "School Districts" are entered the names of the towns and numbers of the districts, and, in the column headed "No. of Miles R.R. Bed, Tel'p, Tel'g, Etc. Lines," figures indicating the number of miles of line assessed, so that the description would be, for example, "1.95 miles of one wire system telegraph in the city of Pendleton and school district number 16," or, "6 10-100 miles of two wire system telegraph in school district number 5, road district 18, and town of Echo." Immediately following the assessment of the two wire system of telegraph, and entered in the column headed "Description of Land," are the initials "R. of W.," and in the column headed "No. of Miles R.R. Bed, Tel'p, Tel'g, Etc. Lines" are figures evidently intended to indicate the number of miles of "R.R. Bed" or "R. of W." in the various road and school districts and incorporated cities and towns through which the road passes; so that the description would read, for example, "3.20 miles of R.R. Bed or R. of W. in road district number 50, and school district number 17." After the roll had thus been made up, the assessor gave notice, as required by law, of the time and place of meeting of the board of equalization, and the plaintiff appeared before such board by its tax agent, and, without objecting in any way to the listing of its property or the description thereof on the assessment roll, or claiming that it had been assessed with property it did not own, filed a petition for the correction of its assessment, first by reducing the valuation of "its roadbed and track, consisting of 166.40 miles, from $12,000 to $5,500 per mile, or from a total of $1,996,800 to $915,000"; second, "the depot grounds in the city of Pendleton from the assessment of $21,000 to $6,400"; and, third, "the materials and supplies" for repairs and improvements to the road from "$24,850 to nothing." This petition was not disposed of by the board of equalization, but was continued for the consideration of the county court, and such court denied the reduction in the valuation of the roadbed, but reduced the assessment of the depot grounds in Pendleton to $10,000, and eliminated the assessment for materials and supplies.

At the January term, 1904, of the county court, the county judge, two commissioners, the district attorney, county clerk, and sheriff all being present, the following order was made and entered of record: "In the Matter of Tax Levy for 1904. Now on this day the summary of the assessment roll of Umatilla County, Oregon, showing real and personal property assessed to the amount of $9,214,630.72, and polls assessed to amount of $_______, the above being the net assessment of Umatilla County, upon which the county court of said county is authorized by law to make the levy of 1903. It is Ordered by the Court that a tax of twenty (20) mills be levied upon the net assessment of real and personal property as returned by the assessor for the year 1903, to wit: on the sum of $9,214,630.72, to be divided as follows: For state and county, fifteen and eight-tenths mills (15 8-10) on each dollar's worth of taxable property, payable in coin for school purposes, four and one-tenth mills (4 1-10) on each dollar's worth of taxable property payable in coin and for road purposes one-tenth of one mills (1-10) on each dollar's worth of taxable property payable in coin. It is further Ordered, that the clerk of this court make a transcript of said assessment and extend the taxes in accordance with the levy as above made by this court. And that the said clerk shall attach a warrant to said transcript of assessment and deliver the same to the sheriff of Umatilla County, Oregon, which said warrant shall authorize the collection of said taxes for the year 1903 by said sheriff, and the said sheriff be charged with the amount of said levy on said amount of $9,214,630.72, at the rate of twenty (20) mills on the dollar, and $1000 polls returned in said assessment for the year 1903, by the said assessor." The journal containing the order was signed by the county judge, probably at the time it was entered, but not by the commissioners until after this proceeding was instituted. The tax thus levied, together with the levies in the several road and school districts and incorporated cities and towns of the county, were extended by the county clerk, and on February 15, 1904, the assessment roll, together with a warrant as authorized by law for the collection of the taxes, was delivered by the clerk to the sheriff. In May following, this proceeding was instituted. On the final hearing before the circuit court, the writ was sustained as to certain property, the description of which was so indefinite as to be void on its face, but denied as to the remainder. From this decision plaintiff appeals, claiming that the order of the county court levying the tax is void and of no force or effect, because not in compliance with the statute, and that the roll itself was insufficient to sustain such order, and plaintiff's property was not properly described therein.

Arthur C. Spencer, for appellant.

G.W. Phelps, Dist. Atty., and James A. Fee, for respondents.

BEAN J. (after stating the facts).

Sections 3084, 3085, B. & C. Comp., read as follows:

Section 3084: "The county court of each county, or the board of commissioners thereof, shall, at its term in January in each year, estimate the amount of money to be raised in its county for county purposes, and apportion such amount, together with the amount of state and school tax required by law to be raised in its county, according to the valuation of the taxable property in its county for the year, and such determination shall be entered at large in its records."

Section 3085: "For the purpose of raising revenues for county purposes the county court or board of county commissioners for each county in the state shall, at its January term in each year, levy a tax upon all taxable property in its county, which tax shall be sufficient in its amount to defray the expenses of the county."

The plaintiff contends that by these sections it is the duty of the county court, before levying a tax, to make up an itemized estimate of the several amounts of money to be raised for county purposes, and to enter such estimate at large on its records; that such entry is jurisdictional, and a failure to make it will avoid the tax. Before levying a tax, the county court must necessarily make an estimate of the amount of money to be raised in order to determine the rate of taxation, and it is proper that such estimate should be entered of record, but we do not understand that a failure in that respect is fatal to the tax. The statute provides that after the estimate is made the county court shall apportion the amount thereof, together with the state and county taxes, according to the value of the taxable property in the county. Such determination shall be entered at large on...