Southern Oregon Co. v. Coos County

• Decision Date: 23 February 1897
• Citation: Southern Oregon Co. v. Coos County, 30 Or. 250, 47 P. 852 (Or. 1897)
• Parties: SOUTHERN OREGON CO v. COOS COUNTY et al.
• Court: Oregon Supreme Court

47 P. 852

30 Or. 250

SOUTHERN OREGON CO v. COOS COUNTY et al.

Supreme Court of Oregon

February 23, 1897

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Petition by the Southern Oregon Company against Coos county and others for a writ of review. From a judgment dismissing the proceedings, petitioner appeals. Affirmed.

On September 15, 1894, the Southern Oregon Company petitioned the court below for a writ of review, for the purpose of having certified up for review the records and proceedings of the county court of Coos county in the matter of the assessment of plaintiff's property for the year 1893 including the orders of the board of equalization respecting the same. The petition states, in substance, that plaintiff is a corporation organized and existing under the laws of Oregon; that, at the times therein mentioned, Schroeder was county judge, and Stitt and Ross commissioners of said county; that Coos county is a public corporation, and the defendant Gage its sheriff; that on September 13, 1894, said sheriff, by virtue of a tax warrant issued out of the county court of Coos county, directing him to collect the delinquent taxes for the year 1893, levied upon certain personal property of plaintiff, and threatens to sell the same and apply the proceeds thereof to the payment of $7,046.42, the amount of plaintiff's alleged taxes for the year 1893 that the warrant so issued is based upon an order of the county court, made and entered July 13, 1894, directing the county clerk to issue the same for the collection of delinquent taxes due upon several lists, including that of 1893; that the only ground for making the order is a pretended assessment of the property within the county for the year named; that the roll was not filed until September 25, 1893, and after the expiration of any time allowed by the county court for filing the same; that the assessor failed to give notice of the meeting of the board of equalization; that no meeting of the board was ever held, as provided by law for the equalization of such assessment; that plaintiff was afforded no opportunity by said board to apply for the correction of its assessment; and that there was no assessment of plaintiff's property for the year 1893 other than that referred to in said petition. The errors assigned are: First, the order of the county court is insufficient, in that it does not show that any taxes had been levied upon plaintiff's property for the year 1893, or that any such remained unpaid or delinquent; second, that it appears from the record that no taxes had been levied upon its property for 1893; third, that the county court was without jurisdiction to make the order of July 13, 1894; fourth, the county court did not find what sum, if any, was due from plaintiff for taxes levied upon its property for the year named; and, fifth, plaintiff was not notified of the intended proceedings. The return to the writ shows that orders were made and proceedings had as follows: On Monday, July 10, 1893, the county court, at an adjourned meeting, made an order extending the time for the return of the assessment roll to the fourth Monday in September, 1893, at which time the board of equalization for Coos county convened, and adjourned to the following day. The plaintiff appeared at the adjourned meeting by R.E. Shine, its secretary, and later on by John A. Gray, its attorney, and requested a reduction of its assessments, as did other persons. After hearing some testimony offered by the parties, it adjourned to the following day, and then until October 16, 1893, when the hearing was resumed, and continued from day to day until October 23, 1893, at which date it made and entered an order reducing the plaintiff's assessment between five and six thousand dollars. The board again convened on the following day, and filed in the county court a certified statement of its doings and proceedings, from which it appears that it reduced the valuation of all property appearing upon the assessment roll, "except money, notes, accounts, improvements and goods, wares and merchandise, twenty-five per cent. of the value fixed by the assessor." On the 3d day of January, 1894, the plaintiff appeared, and petitioned the court, then in regular session, for a reduction of its assessment for 1893; claiming that the action of the board of equalization was irregular, and illegal, as having continued its sessions beyond the week of its first meeting. The court continued the hearing from time to time until January 20, 1894, when it finally determined that the action of the board was irregular, but approved the reduction made by it of plaintiff's assessment, and reduced the same largely in addition thereto. On January 23d the county court levied a tax of 19 mills on the dollar, and on March 8, 1894, a warrant was issued to the sheriff for the collection thereof. On April 12th it made an order enlarging the time within which the taxes so levied were to become delinquent to June 20, 1894, and extending the time for the return of the delinquent list to July 5, 1894. On July 12, 1894, the sheriff made an irregular return of the same by certificate, and on the following day the county court made the order specified in the petition as made of the 13th, and the warrant was issued by the clerk, in pursuance of this order, July 17, 1894, and is the same under which it is alleged the sheriff is acting. The defendants moved the court below to quash the writ, and, the motion being allowed, it was adjudged that the proceedings be dismissed, from which judgment this appeal is prosecuted.

J.W. Hamilton and Rufus Mallory, for appellant.

S.H. Hazard, for respondents.

WOLVERTON J. (after stating the facts).

The motion to quash presents two questions that go to the sufficiency of the petition for the writ, which are decisive of the case. The first is that it does not state sufficient facts to authorize the issuance of the writ, in that it does not describe with sufficient certainty the decision or determination sought to be reviewed, nor does it assign or specify the errors which it is sought to have corrected; and, second, that the decisions and determinations sought to be reviewed were all made more than six months prior to the application for the writ, except the order of the county court of July 12, 1894. We will treat of these in their inverse order.

The statute provides that in no case shall the writ be allowed unless application therefor be made within six months from the date of the decision or determination complained of. Hill's Ann.Laws Or. § 590. This limitation is conclusive of the power of the supervising court to issue it. Rhea v. Umatilla Co., 2 Or. 298, approved in Bank v Jordan, 16 Or. 117, 17 P. 621; 2 Spell.Extr.Rel. § 1902; Cunningham v. Packet Co., 10 Minn. 299 (Gil. 235); People v. Hildreth (N.Y.App.) 27 N.E. 558; Chamberlin v. Barclay, 13 N.J.Law, 244. It is one of the purposes of the present writ to have reviewed the decisions and determinations of several functionaries, including the assessor, board of equalization, and the county court, of Coos county, touching the making up of the assessment roll of 1893. The assessor returned the roll September 25, 1893; and the board of equalization met on the same day, and continued its sessions from time to time until October 24th following, when...