Paine v. Wells

• Decision Date: 08 October 1918
• Parties: PAINE ET AL. v. WELLS, COUNTY ASSESSOR, ET AL.
• Court: Oregon Supreme Court

175 P. 430

89 Or. 695

PAINE ET AL. v. WELLS, COUNTY ASSESSOR, ET AL.

Supreme Court of Oregon

October 8, 1918

Department 2. Mandamus by C. C. Paine and another against J. J. Wells Assessor of Morrow County, and others. On demurrer to the alternative writ. Demurrer sustained.

This is a proceeding in mandamus, instituted in this court to compel the assessor, sheriff, and clerk of Morrow county, Or., to correct the assessment rolls for the tax of 1917, "by calculating the rate per cent. of the special tax voted by school district No. 25 of Morrow county, Or., on the 27th day of November, 1917," and to levy and extend the said special tax on the assessment rolls, and to certify and issue a warrant for, and collect the same with the tax for 1917. The petition was filed, and an alternative writ of mandamus was issued on July 11, 1918, requiring the defendant officers to so correct the assessment rolls, or show cause, on the 23d day of July, 1918, why they should not do so.

The formal allegations of the alternative writ show that the plaintiff C. C. Paine is a citizen and taxpayer of the school district, and that school district No. 25 is a public corporation of Morrow county, and shows the official character of the defendant county officers, and names the duly qualified and acting members of the school board of the district and the clerk of the school district. The writ then sets forth in substance as follows:

"IV. That on the 5th day of November. 1917, J. C. Ballenger clerk of said school district No. 25 of Morrow county, Or posted a notice signed by himself and the chairman of the board of directors of said school district on the schoolhouse door in said school district calling a school meeting to be held in said school district on the 27th day of November, 1917, at 2 o'clock p. m. The said J. C Ballenger sent a copy of said notice to the county school superintendent of Morrow county, Or., and the said J. C Ballenger on the 5th day of November, 1917, posted three other notices of the call for said school meeting in said school district to be held on the said 27th day of November, 1917, in three public places in said school district."

Here follows a copy of the notice of the school meeting to be held on the 27th day of November, 1917, at 2 o'clock p. m. to vote on the proposition of a special levy of tax setting forth an estimate or budget of the money needed by the district during the fiscal year, showing the amount of $22,761.95 to be raised by a direct tax. It is then alleged:

"V. That on the 27th day of November, 1917, a special school meeting of school district No. 25 of Morrow county, Or., was held at 2 p. m. on said day, and at said meeting it was voted by the residents, inhabitants, and taxpayers of said school district, who are the electors thereof, to raise by taxation the sum of $22,761.95 to be used by the said school district for school purposes during the fiscal year beginning June 30, 1917, and ending June 30, 1918."

It is then alleged that notices of the amount of the special tax voted on at such school meeting, together with a copy of the notice calling the school meeting with itemized budget attached, was filed, one copy with the county clerk, and one copy with the county assessor of Morrow county, before the 1st day of December, 1917, and that the county assessor has failed and refused to compute and determine the rate per cent. of the special tax required to be levied upon the property of the school district as voted, and failed and refused to extend the special tax upon the present assessment rolls of the county, or to levy said tax upon the property situated in the school district.

Paragraphs IX and X of the writ are as follows:

"IX. The county assessor of Morrow county, Or., certified and filed with the county clerk of said county a false and incorrect certificate of the several amounts of special school taxes voted by the taxpayers of school district No. 25 of Morrow county, Or., to be apportioned and assessed upon the property situated in said school district, and the said assessor procured from the county clerk of said county a warrant in the name of the state of Oregon, authorizing the collection by the tax collector of the taxes shown in the said certificate filed with the county clerk of Morrow county, Or., by the said assessor.

"X. The said assessor of Morrow county, Or., filed with and delivered to the tax collector of said county an incorrect and false assessment roll, in that the said assessment roll does not contain the special tax voted by the taxpayers of said school district No. 25 of said county and state, on the 27th day of November, 1917"

--and alleges that the county clerk of Morrow county refuses to issue a warrant authorizing the collection of this special school tax, and that the county tax collector of Morrow county refuses to collect the special tax voted by the taxpayers of the school district No. 25.

The defendants demurred to the writ upon the grounds that the same does not state facts sufficient to entitle the petitioners to the relief demanded, specifying several particulars; that these proceedings were commenced too late.

O. R. Richards and Norman S. Richards, both of Portland, for plaintiffs. John F. Reilly, of Portland (Sam E. Van Vactor, of Heppner, on the briefs), for defendants.

BEAN, J. (after stating the facts as above).

The first ground of the demurrer is based upon several propositions, a portion of which we will notice. It is contended by the counsel for defendants that essential allegations are omitted from the writ and without them the writ does not make that clear case required by the law. The necessary averments in an alternative writ of mandamus are stated in 13 Enc. of Pleading and Practice, pp. 677-681, substantially as follows: That the pleading must show, at least prima facie, a clear right existing in the relator to have the thing done which he seeks to enforce. It must allege the performance of conditions precedent; it must show special interest and special damage, if any, to the relator; it must negative any facts which under the statute relied upon might defeat his right to maintain the action. We quote from page 680 of that volume:

"The relator must show that it is the respondent's duty, and that he has the power, to perform the act sought to be enforced. The relator must allege the facts from which the legal liability results, and a pleading is bad in substance if the duty does not in all cases result from the facts stated in it."

See, also, State ex rel. Good v. John, 170 Ind. 233, 84 N.E. 1; Hoxie v. County Commissioners, 25 Me. 333; Ewing v. County Commissioners' Court, 83 Tex. 663, 19 S.W. 280; Weir v. State, 161 Ind. 435, 68 N.E. 1023; 2 Spelling on Inj. & Ext. Rem. (2d Ed.) § 1645; McLeod v. Scott, 21 Or. 94, 26 P. 1061, 29 P. 1; State ex rel. v. Malheur County Court, 46 Or. 519-522, 81 P. 368; High's Ext. Legal Rem. (3d Ed.) § 9.

The petitioners base their right to the writ upon a school election at which they allege the tax levy was voted. The defendants make the objection that the petitioners have failed to allege the holding of a legal meeting. Section 4083, L. O. L., provides that all regular and special school meetings must be convened by a written call stating the objects of such meeting, signed by the chairman of the board and the district clerk, or a majority of the district school board; and the directors shall cause the clerk to post the written notices in three public places in the district at...