Oregon & W. Mortg. Sav. Bank v. Jordan

• Decision Date: 29 February 1888
• Parties: OREGON & W.M. SAV. BANK v. JORDAN, Sheriff, et al.
• Court: Oregon Supreme Court

17 P. 621

16 Or. 113

OREGON & W.M. SAV. BANK v. JORDAN, Sheriff, et al.

Supreme Court of Oregon

February 29, 1888

Appeal from circuit court, Multnomah county.

Action by the Oregon & Washington Mortgage Savings Bank against Thomas A. Jordan, sheriff of Multnomah county, and against the county, to enjoin the collection of a tax.

McDougall & Bower, for appellant.

McGinn & Simon, for respondents.

STRAHAN J.

The object of this suit is to enjoin the collection of a tax. The material part of the complaint is, in substance, as follows That on or before August 25, 1884, plaintiff furnished, and filed with the assessor of Multnomah county, a full statement of the property of the plaintiff, and duly sworn to, as required by law. That said statement contained all personal property, except shares of stock in Portland National Bank, which plaintiff believed were assessed to said Portland National Bank. That the assessor of Multnomah county returned a list of assessable property as required, and the board of equalization examined the same, and made the following assessments: Money, notes, and accounts, $118,210 real estate, $24,000; mortgages, $63,670; and allowed an indebtedness within the state of $145,280, and leaving total taxable property of $62,600. That on said sum of $62,600 there was levied a tax of $_______, and a warrant for its collection placed in the hands of Thomas A. Jordan. That, at the time said assessment was made, the plaintiff had no property in the county of Multnomah subject to assessment and taxation, the whole thereof being offset by deduction of indebtedness. That nearly all of plaintiff's property consists of notes secured by mortgage, and that the same are taxable in the counties where the lands securing the same lie, and that said assessment of $118,210 was arbitrarily made, and was erroneous as to all in excess of $50,000. That said assessment is erroneous, excessive, and unjust, and the taxes levied thereon are an apparent lien and cloud on the title of the plaintiff's aforementioned real estate. That thereafter said assessment roll, with the warrant of the county court attached, was placed in the hands of defendant Thomas A. Jordan, sheriff of Multnomah county, for collection. That he returned said tax as delinquent, and the county clerk has, as by law directed, issued a writ under his hand, and with the seal of the county court attached thereto directed to said sheriff, commanding him to levy on the goods and chattels of the plaintiff, and, if none be found, then upon the real property of the plaintiff, and that said Jordan will unless restrained, etc., and that plaintiff has no plain or adequate remedy at law; and pray that defendant be re-restrained. Upon the filing of the complaint, a restraining order was issued. The defendants demurred to the complaint, for the reasons--First, the same did not contain facts sufficient to constitute a cause of suit; and, second, there is a misjoinder of parties defendant, in that the county of Multnomah is joined as a party defendant. The demurrer was overruled; and the defendants refusing to answer, and electing to stand by their demurrer, a final decree was entered in favor of the plaintiff, enjoining the collection of the taxes assessed against the plaintiff in Multnomah county for the year 1884. This decree was entered on the 21st of September, 1887, from which this appeal is taken.

1. Section 2769, Hill's Code, makes it the duty of any person liable to be taxed in his county to furnish the assessor a list of his real estate 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." 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 of the property of each tax-payer 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, Hill's Code. Section 2778 Hill's Code, declares what officers in the county shall constitute the board of equalization, and section 2779 declares a part of the duties of such board as follows: "If it shall appear to such board of equalization that there are any lands or other property assessed twice, or in the name of a person or persons not the owner thereof, or assessed under or beyond its actual value, or any lands, lots, or other property not assessed, said board shall make the proper corrections." Waiving, for the present, the more important question of the jurisdiction of a court of equity to correct improper assessments by injunction under the facts disclosed, the complaint is open to serious criticism. What is meant by "a list of assessable property as required"? There is no such document known to the assessment laws of this state. The official record of the assessor's work is the assessment roll,...