State by and through Heltzel v. Koenig
| Citation | 342 P.2d 139,218 Or. 86 |
| Parties | STATE of Oregon, acting by and through Chas. H. HELTZEL, Public Utilities Commissioner of Oregon, Respondent, v. Donnell E. KOENIG, Appellant. |
| Decision Date | 15 July 1959 |
| Court | Supreme Court of Oregon |
Bernard P. Kelly, Medford, argued the cause for appellant. With him on the brief was Edward C. Kelly, Medford.
Peter S. Herman, Asst. Atty. Gen. argued the cuase for respondent. On the brief were Robert Y. Thornton, Atty. Gen. and John R. McCullough and Robert R. Hollis, Asst. Attys. Gen.
Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and CRAWFORD, JJ.
The Public Utilities Commissioner filed an action under ORS 767.370 to collect an assessment of taxes entered by the Commissioner, proceeding under ORS Chapter 767. The assessment had become final under ORS 767.365. Issues were framed by the amended complaint, the amended answer consisting of a general denial, though admitting the Commissioner made 'an attempted and purported assessment', and an affirmative defense alleging the action taken, resulting in the assessment, was arbitrary and capricious and without legal or factual basis. The reply denied the matter stated in the affirmative defense. Trial started before a jury, but at the conclusion of the evidence both parties moved for a directed verdict. The trial judge thereupon decided the case in favor of the plaintiff, and defendant appeals.
Defendant assigns as error the court's denial of motions for involuntary nonsuit and directed verdict, inclusion of penalties in the judgment, exclusion of certain evidence, denial of motion to make the amended complaint more definite and certain, and overruling of demurrer to the amended complaint. In the main, these motions fall in the same category and may be disposed of together. They all go to issues which defendant contends may properly be considered in this case, though they were of necessity considered and disposed of in connection with the final assessment, from which no review was requested, as permitted by the statute. The assessment thereupon became final, and issues that might have been reviewed at that time may not be retried here. It should be understood this is not a case in which the commissioner is making an assessment under ORS 767.360. It is a proceeding for the collection of 'fees, taxes, penalties and moneys * * * due to the State', established by the assessment brought under ORS 767.370. It is to be observed that by ORS 767.365(1) * * *' In the absence of such petition for reassessment the actions of the commissioner are not subject to collateral attack. They may only be challenged for fraud or on jurisdictional grounds. Lane County v. Bristow, 179 Or. 653, 173 P.2d 954; Linn County v. Rozelle, 177 Or. 245, 162 P.2d 150; Citizens' National Bank of Baker City v. Baker County Board of Equalization, 109 Or. 669, 222 P. 341; Western Union Telegraph Co. v. Hurlburt, 83 Or. 633, 163 P. 1170; Ankeny v. Blakeley, 44 Or. 78, 74 P. 485. From which it follows that the trial judge committed no error with respect to rulings on these matters. As stated by the learned trial judge in his memorandum opinion: 'The sole question in the mind of the court was as to the efficiency of the notice which the plaintiff gave the defendant under the provisions of Section 767.360 and 767.355.'
ORS 767.360(5) reads:
ORS 767.355(6) reads:
The notice, plaintiff's Exhibit 1, is as follows:
'Geo. H. Flagg
Public Utilities Commissioner
Salem, Oregon
Donnell E. Koenig
% E. G. Robertson
Talent, Oregon
Permit
Number 22353-1A
Date May 21, 1951
Your account has been charged with the following:
Previous Balance Total Due 2,139.19'
The letter of transmittal reads as follows:
'May 21, 1951
'22353
'Mr. Donnell E. Koenig
'% E. G. Roberston
'Talent, Oregon
'Re: Audit
'Dear Sir:
'This charge covers fees due for operations of equipment which were never reported and errors in the computation of your reports.
'Please forward $2,139.19 on or before June 1, 1951, as the Motor Transportation Code requires that underpayments must be paid within ten days.
Defendant challenges the sufficiency of this 'notice' under the statute in that 'office procedure' was accepted as proof of mailing. A 'photostatic carbon copy of such letter' was received in evidence in the absence of evidence of nonavailability of the original and legal insufficiency of the letter as a 'notice of assessment.'
The statute does not specify the contents of the notice. Lacking such specific directive we conclude any form of notice substantially complying with the statute and with due process is sufficient. Fulton Realty Co. v. Athanas, D.C.Mun.App.1945, 44 A.2d 417; Commercial Standard Ins. Co. v. Garrett, 10, 1934, 70 F.2d 969; Pearll v. City of Bay City, 174 Mich. 643, 140 N.W. 938; In re Weeks, D.C.N.D.Tex., 4 F.Supp. 558; In re Hansen's Guardianship, 229 Iowa 914, 295 N.W. 429; Tooele Meat & Storage Co. v. Morse, 43 Utah 515, 136 P. 965.
The notice was adequate. It advised defendant an 'audit' of his operations had been made and that underpayment of his taxes resulted from his failure to report operations and errors in his computation of his taxes. Items entering into the assessment were separately stated. Defendant knew the 'audit' was being made and that the assessment was being prepared. Again we quote from the memorandum opinion of the trial judge:
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...which indicates that Knapp does not continue as the law in Oregon. It has been followed and cited with approval. Cf. State v. Koenig, 218 Or. 86, 93, 342 P.2d 139 (1959); Otto & Harkson Co. v. Josephine Co., 207 Or. 199, 207, 295 P.2d 875 (1956). In Cascade Tree Farms v. Clackamas Co., 250 ......
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...greater than $25, thus increasing the probability that actual notice will occur. This case is substantially the same as State v. Koenig, 218 Or. 86, 342 P.2d 139 (1959), except that here the alleged due process violation is more vigorously The guidelines for determining whether a particular......