Starker v. Scott et al.

Decision Date02 March 1948
Citation183 Or. 10,190 P.2d 532
PartiesSTARKER <I>v.</I> SCOTT, STATE TREASURER ET AL.
CourtOregon Supreme Court

1. The constitutional requirements that taxation be uniform on same class of subjects within territorial limits of authority levying tax and that law imposing tax shall state object to which only the tax shall be applied, apply only as limitations on exercise of tax power and do not limit power of legislature to impose regulations under police power. Const. art. 1, § 32; art. 9, § 3.

Licenses — Police power — Taxation — Statute — Purpose

2. While name given by legislature is significant in determining whether act is passed pursuant to police power or to power of taxation, primary purpose of statute determines whether statute is enacted pursuant to the one or the other power.

Licenses — Incidental surplus revenue — General fund

3. In the case of money collected for license fees imposed under police power to cover costs of inspection, examination or regulation, only incidental surplus revenue is available for general fund purposes, and amount of license fee which may be exacted is controlled by estimated cost of inspection or regulation.

Woods and forests — Penalty — Tax

4. The statute requiring assessment, levy and collection of so-called penalty of 10 per cent in addition to cost of furnishing forest patrol protection and providing that both cost and penalty upon collection shall be repaid to State forester to be applied to expenses incurred under statute for fire protection imposes so-called "penalty" under police power and not a "tax," and hence statute is not violative of constitutional requirement of uniformity of taxation. O.C.L.A. § 107-243; Const. art. 1, § 32.

See Words and Phrases, Permanent Edition, for all other definitions of "Penalty" and "Tax".

Licenses — License fee — Separate fund

5. While estimated cost of regulation imposes limitations upon amount which can be charged for regulatory license, the license fee is not required to be kept in a separate fund.

Evidence — Judicial notice — Fire protection

6. The Supreme Court would not take judicial notice that requirements for furnishing adequate fire protection were so great that an individual landowner could not furnish such protection. O.C.L.A. § 107-243.

Woods and forests — Tithing Act — Penalty clause

7. The Tithing Act providing for tithe of 10 per cent of gross receipts of State Board of Forestry from forest patrol assessments is valid, nothwithstanding subsequent addition of penalty clause in case of forests assessments. O.C.L.A. § 92-211; Laws 1947, c. 452.

StatutesAmendment — Forest patrol assessment law — Proper title

8. The 1935 amendment to Forest Patrol Assessment Law requiring assessment, levy and collection of so-called penalty of 10 per cent in addition to cost of furnishing forest patrol protection is not invalid for want of proper title, since imposition of 10 per cent penalty is germane to subject of original law which was entitled "An Act to require owners of timber lands to provide a fire patrol therefor". O.C.L.A. § 107-243.

                  See 51 Am. Jur. 207 et seq
                  53 C.J.S., Licenses § 22
                

Appeal from Circuit Court, Marion County.

GEORGE R. DUNCAN, Judge.

Rex Kimmell, Assistant Attorney General, and E.G. Foxley, Assistant Attorney General, of Salem, argued the cause for appellants. With them on the brief was George Neuner, Attorney General, of Salem.

Manley B. Strayer and Frederick H. Torp, of Portland, argued the cause for respondents. With them on the brief were Omar C. Spencer and Hart, Spencer, McCulloch & Rockwood, of Portland.

Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, BAILEY and BRAND, Justices.

Suit by plaintiffs, as timber owners, for a judgment declaring that portions of O.C.L.A., § 107-243, (relating to forest patrol assessments and penalties), and of O.C.L.A., § 92-211, (the Tithing Act), are unconstitutional and for a decree enjoining the enforcement of those provisions. A demurrer to the complaint was overruled. Defendants elected to stand upon the demurrer. A decree was therefore entered in accordance with the prayer of the complaint, and defendants appeal.

REVERSED.

BRAND, J.

The plaintiffs, as citizens of the State of Oregon and owners of forest lands situated in Columbia County, by their complaint allege that the defendants, acting under the authority of O.C.L.A., § 107-243 and § 92-211, have unlawfully assessed, levied and disbursed certain moneys exacted from the plaintiffs and others similarly situated. Pursuant to the allegations and prayer of the complaint, the trial court entered a decree in part as follows:

"That Section 107-243, O.C.L.A., insofar as it requires the addition by the State Forester of a penalty of ten per cent to the cost of fire protection, makes said penalty a lien upon property, directs the State Forester to report said ten per cent penalty to the county court of the county in which such property is situated, and directs the levying and collection of said ten per cent penalty, be and the same hereby is declared to be unconstitutional and void."

The court also held, as to the Tithing Act:

"That Section 92-211, O.C.L.A., insofar as it requires the payment into the general fund of the State of Oregon of any portion of the receipts of the State Board of Forestry from forest patrol assessments, be and the same hereby is declared to be unconstitutional and void."

The defendants as public officers were enjoined from enforcing the provisions in question.

In the year 1913 the legislature enacted a law entitled "An act to require owners of timber lands to provide a fire patrol therefor." Laws, 1913, Chapter 247. Section 1 of that act as amended in 1925 reads as follows:

"Every owner of timber land in the state of Oregon shall furnish or provide therefor, during the season of the year when there is danger of forest fires, adequate protection against the starting or spread of fire thereon or therefrom which shall meet with the approval of the state board of forestry." O.C.L.A., § 107-241.

Section 2 of the 1913 act as amended reads in part as follows:

"In case any owner or owners shall fail or neglect to provide such protection against the starting or spreading of fire, then the state forester, under direction from the state board of forestry, shall provide the same at a cost not to exceed five cents (5¢) per acre per annum; provided, that when in time and localities of unusual hazard adequate protection of timbered areas demands expenditure in excess of five cents (5¢) per acre, the state forester, with approval of the state board of forestry, may, after thorough investigation of need thereof, authorize and approve expense sufficient properly to safeguard timber resources, but amounts so approved shall not exceed actual cost of work performed. Reasons for any cost in excess of five cents (5¢) per acre shall be furnished by the state forester upon demand to any property owner whose lands are subject to protection costs in excess of the specific amount prescribed in this act. Any amount so paid or contracted to be paid by the state forester together with a penalty of ten (10) per cent thereof shall be a lien upon the property, and shall be reported by the state forester to the county court of the county in which such lands are situated, and shall by such court be levied and collected with the next taxes on such lands in the same manner and with the same interest, penalty and cost charges as apply to ad valorem property taxes in this state. Said county court shall instruct the proper officer to extend the amounts on the assessment roll in a separate column, and the procedure provided by law for the collection of taxes and delinquent taxes shall be applicable thereto, and, upon collection thereof, the county court shall repay the same to the state forester to be applied to the expenses incurred in carrying out the provisions of this act. * * *." O.C.L.A., § 107-243.

The portion of the statute which was held unconstitutional by the circuit court is that which was added to the law by an amendment adopted in 1935, (Laws, 1935, Chapter 356). Previous to that amendment the statute provided that: "Any amounts so paid or contracted to be paid by the State Forester, shall be a lien upon the property, * * *."

The 1935 amendment added the words, "together with a penalty of ten (10) per cent thereof" before the words "shall be a lien".

Plaintiffs contend that the provision of O.C.L.A., § 107-243 which requires the assessment, levy and collection of a penalty of ten per cent, in addition to the cost of furnishing forest patrol protection, constitutes an exercise of the power of taxation and as such is unconstitutional because it is not levied according to the rule of uniformity. Secondly, the plaintiffs contend that the provision for the ten per cent penalty is arbitrary and bears no reasonable relationship to the cost of protection and regulation which may be imposed upon the timber owner under the police power.

The constitution of Oregon provides that: "* * * all taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax." Constitution of Oregon, Article I, Section 32.

1. The constitution also provides: "No tax shall be levied except in pursuance of law and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied." Constitution of Oregon, Article IX, Section 3. These provisions however apply only as limitations upon the exercise of the power of taxation. Neither provision is a limitation upon the power of the legislature to impose regulations under the police power. Ellis v. Frazier, 38 Or. 462, 63 P. 642, 53 L.R.A. 454; Portland Van and Storage Co. v. Hoss, 139 Or. 434, 9 P. (2d) 122, 81 A.L.R. 1136; Miller v. Henry, 62 Or. 4, 124 P. 197, 41 L.R.A.(N.S.) 97...

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8 cases
  • AT & T COMMUNICATIONS v. City of Eugene
    • United States
    • Oregon Court of Appeals
    • 31 Octubre 2001
    ...purpose of a tax is regulatory, and not merely revenue raising, Article IX, section 3, does not apply at all. Starker v. Scott et al., 183 Or. 10, 15-17, 190 P.2d 532 (1948). Even assuming for the sake of the argument that Article IX, section 3, applies to this case, the findings contained ......
  • Terry v. City of Portland
    • United States
    • Oregon Supreme Court
    • 14 Abril 1954
    ...The basic distinction between revenue and police power legislation is well pointed out by Mr. Justice Brand in Starker v. Soctt, 183 Or. 10, 15, 190 P.2d 532, 535, wherein he 'If the challenged portion of O.C.L.A., § 107-243 was enacted as an exercise of the taxing power, it would be invali......
  • Eugene Theatre Co. v. City of Eugene
    • United States
    • Oregon Supreme Court
    • 23 Abril 1952
    ...by the instant ordinance are far in excess of what might be deemed reasonably necessary for purposes of regulation. Starker v. Scott, 183 Or. 10, 21, 190 P.2d 532; In re Fine, 124 Or. 175, 177, 264 P. 347; Ellis v. Frazier, 38 Or. 462, 63 P. 642, 53 L.R.A. 454; In re Wan Yin, D.C., 22 F. 70......
  • Trader's Guardianship, In re
    • United States
    • Oregon Supreme Court
    • 21 Marzo 1951
    ...act, although the title need not be an index of the act. State ex rel. Pierce v. Slusher, 119 Or. 141, 151, 248 P. 358; Starker v. Scott et al., 183 Or. 10, 190 P.2d 532. In determining the effect to be given to the constitutional provision, we may well have in mind the purposes sought to b......
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