State ex rel. Pierce v. Coos County

• Decision Date: 14 July 1925
• Citation: 115 Or. 300,237 P. 678
• Parties: STATE EX REL. PIERCE, GOVERNOR, ET AL. v. COOS COUNTY ET AL.
• Court: Oregon Supreme Court

237 P. 678

115 Or. 300

STATE EX REL. PIERCE, GOVERNOR, ET AL. v. COOS COUNTY ET AL.

Supreme Court of Oregon

July 14, 1925

Department 2.

Original application for mandamus by the State on the relation of Walter M. Pierce, as Governor, and others, to be directed against Coos County and others. Demurrer overruled, and writ allowed.

J. B. Hosford, Asst. Atty. Gen. (I. H. Van Winkle Atty. Gen., on the brief), for petitioners.

J. B Bedingfield, of Bandon, for defendants.

McBRIDE C.J.

This is an original proceeding in mandamus, brought by the petitioners, who claim to be the owners of certain lands in Coos county, and to compel the defendants to comply with the provisions of chapter 314, General Laws of Oregon for 1925 which act is as follows:

"An act to remit penalty and interest on certain taxes and declaring an emergency.

"Whereas the farmers and agricultural interests of the state of Oregon have been suffering under severe handicaps due to the general depression in agriculture in recent years; and

"Whereas the severe winter in eastern Oregon has frozen much of the recently planted grain crop and in other portions of the state materially injured other crops, and it will be difficult, if not impossible, for many of the farmers of the state to promptly pay their taxes:

"Be it enacted by the people of the state of Oregon:

"Section 1. The county courts of the several counties of the state may and are hereby authorized to remit all interest, penalties and costs which have been or may be incurred on all taxes levied in their respective counties on the tax rolls for the years 1921, 1922 and 1923 to all taxpayers who, prior to May 1, 1925, or prior to the date on which foreclosure of certificates of delinquent taxes could have been instituted under the law if certificates of delinquency had been issued, shall have paid the original amount of such delinquent taxes on the property affected. It shall be the duty of the tax collector upon whose rolls any such interest, penalties and costs may have been remitted through the authority of this act to forthwith satisfy and cancel the same upon such rolls: Provided, however, that this act shall not apply to any tax upon which a certificate of delinquency has been issued.

"Section 2. It is hereby adjudged and declared that existing conditions are such that this act is necessary for the immediate preservation of the public peace, health and safety; and, owing to the urgent necessity, an emergency is hereby declared to exist, and this act shall take effect and be in full force and effect from and after its approval by the Governor."

It is not questioned that the petition for a writ and the writ itself are in due form and effective unless the act is unconstitutional. It is contended by the defendants on demurrer to the writ that the act is merely permissive, leaving to the various county courts the discretion whether to make such remission or to withhold it. On the other hand, it is contended by the petitioners for the writ that the act is mandatory, and that, upon the compliance with its provisions, there is no discretion in the county courts as to its duty in the premises.

We are of the opinion that the words used, to wit, "The county courts of the several counties of the state may and are hereby authorized to remit," etc., when used in the connection in which they appear in the act, should be construed as mandatory. While in form permissive, they are peremptory when used to clothe a public officer with the power to do an act which ought to be done for the sake of justice, or which concerns the public interest or the rights of third persons. Ex parte Banks, 28 Ala. 28; Rex v. Barlow, 2 Salk. 609; Johnston v. Pate, 95 N.C. 68; Lynn v. County Com'rs, 148 Mass. 148, 19 N.E. 171; Bowen v. Minneapolis, 47 Minn. 115, 49 N.W. 683, 28 Am. St. Rep. 333; and various other authorities to that effect, which will be found in a note to section 636, vol. 2 (2d Ed.) Lewis' Sutherland Statutory Construction.

We are aware that there are a few authorities contradictory to the view above enunciated, but we are satisfied that it is in accordance with the great weight of authority, and accords with the logic of the situation as applied to this particular case. The preamble of the act indicates an intention to make it applicable to the whole state. It recites the fact that the farmers and agricultural interests of the state have been suffering under severe handicaps due to the general depression in agriculture during the present year. It also recites the consequences of a severe winter in eastern Oregon and in other portions of the state, and asserts that it will be difficult, if not impossible, for many of the farmers of the state to...