State ex rel. Pierce v. Slusher

• Citation: 244 P. 540,117 Or. 498
• Parties: STATE EX REL. PIERCE ET AL., STATE TAX COMMISSION, v. SLUSHER, SHERIFF.
• Decision Date: 30 March 1926
• Court: Supreme Court of Oregon

244 P. 540

117 Or. 498

STATE EX REL. PIERCE ET AL., STATE TAX COMMISSION, v. SLUSHER, SHERIFF.

Supreme Court of Oregon

March 30, 1926

Department 2.

Original mandamus by the State of Oregon, on the relation of Walter M Pierce, Governor, and others constituting the State Tax Commission, against Harley J. Slusher, Sheriff of Clatsop County. On demurrer to the alternative writ. Demurrer overruled.

Miles H. McKey, Asst. Atty. Gen. (I H. Van Winkle, Atty. Gen., on the brief), for petitioners.

Frank C. Hesse, of Astoria (Frank P. Leinenweber Dist. Atty., and Norblad & Hesse, all of Astoria, on the brief), for defendant.

BROWN J.

This is an application for a writ of mandamus, by which it is sought to compel Harley J. Slusher, as sheriff of Clatsop county, Or., to perform his duty as provided by section 25, chapter 316, General Laws of Oregon 1925. On December 15, 1925, the State Tax Commission, by Walter M. Pierce, Governor, Sam A. Kozer, secretary of state, Thos. B. Kay, state treasurer, and Earl L. Fisher, commissioner, issued to the defendant herein a number of warrants for the collection of income taxes, which he refused to execute. To the alternative writ issued out of this court, the defendant has filed his demurrer, on the ground that the writ fails to state facts sufficient to constitute a cause of action.

In the consideration of this cause, we keep in mind the important and admitted fact that the defendant has failed and refused to perform his official duties in the matter of the collection of the revenue of the state, and the further fact that it is the duty of the court, in determining whether the writ shall issue, to take into consideration the interest of the general public. 38 C.J. 550.

"Revenues of the state assessed and in process of collection are to be considered as constructively in the treasury, and may be appropriated and treated as though actually there." 36 Cyc. 887.

This doctrine is announced in the early case of State v. McCauley, 15 Cal. 430, where Mr. Chief Justice Field held, in substance, that taxes levied and in the process of collection are treated as in the state treasury, and that such revenues may be appropriated in anticipation of their receipt as effectually as when actually in the treasury. The McCauley Case has been cited with approval many times. See People v. Pacheco, 27 Cal. 175; State v. Medbery, 7 Ohio St. 529; In re State Warrants, 62 N.W. 101, 6 S.D. 518, 55 Am. St. Rep. 852.

We must concede it to be a fundamental principle that mandamus will not lie where there is a plain, speedy, and adequate remedy in the ordinary course of law. Or. L. § 613. However, such remedy, to prevent the execution of the writ, must be "adequate" to afford the relief to which the relator is entitled. Moreover, the writ may issue even where other remedies exist, if they are not sufficiently speedy to prevent material injury. 2 Bailey on Habeas Corpus, Mandamus, 830. In complete accord with the foregoing is the following concise statement by Mr. Ferris in his recent text-book on Extraordinary Legal Remedies, p. 247:

"The other remedy, to supersede mandamus, must be competent to afford relief upon the very subject-matter of the application, and be equally convenient, beneficial, and effective."

There is much authority to the effect that it is the inadequacy, not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that generally determines the propriety of the issuance of a writ of mandamus. See Robertson v. Board of Library Trustees, etc., 69 P. 88, 136 Cal. 403, 405; Ross v. Board of Education, 122 P. 967, 18 Cal.App. 222; Dufton v. Daniels, 213 P. 949, 190 Cal. 577. Another instructive case illustrating this doctrine is that of State v. Mayor, etc., of Wilmington (Del. Super.) 119 A. 856.

Every proceeding in mandamus must be determined upon its own setting of facts. The right to compel a tax collector to proceed to collect the public revenue rests upon the public requirement for a certain and speedy remedy. In State ex rel. Coe v. Fyler, 48 Conn. 145, 158, an application for a mandamus to compel the tax collector of the town of Torrington to collect a tax laid upon certain property, the Supreme Court of Connecticut held that, notwithstanding there was a remedy at law against the collector on his bond and by execution against his body and estate, this did not constitute a valid reason for refusal to grant a mandamus. The court pointed to the fact that collection is certainty, and that the substitutes offered might be fruitless and inadequate as a remedy; that both the town and the relator had the right to insist that the tax collector perform his duty according to law, and that he should not be heard to say that he might be punished for nonperformance. To this is added the unanswerable argument that money is necessary to the existence of a government, and that, for the maintenance and protection of government, taxes must be promptly paid when due.

To the same effect is Smyth v. Titcomb, 31 Me. 272, where the court emphasizes the fact that public policy, and public necessity and justice as well, require prompt and efficient action from...