State Land Board v. Campbell

• Citation: 140 Or. 196,13 P.2d 346
• Parties: STATE LAND BOARD v. CAMPBELL et al.
• Decision Date: 19 July 1932
• Court: Oregon Supreme Court

13 P.2d 346

140 Or. 196

STATE LAND BOARD v. CAMPBELL et al.

Supreme Court of Oregon

July 19, 1932

In Banc.

Appeal from Circuit Court, Jackson County; H. D. Norton, Judge.

Suit by the State Land Board of the State of Oregon against Jeanie Campbell, Jackson County, and others. From the judgment against last-named defendant, it appeals.

Affirmed.

G. A Codding, Dist. Atty., of Medford, for appellant.

Frank P. Farrell, of Medford, for respondent.

RAND J.

This suit was instituted by plaintiff, the State Land Board, to foreclose a mortgage of real property given on December 21 1921, by defendants Jeanie Campbell and E. N. Campbell, her husband, to secure a loan of $2,100 in moneys belonging to the Irreducible School Fund. A decree by default was taken against all the defendants except Jeanie Campbell against whom the suit was dismissed, and Jackson county which appeared and answered. In its answer it alleged that it held a tax lien for $80.18 for the year 1930 against the mortgaged property and that its said lien was prior in right to the lien of plaintiff's mortgage. The learned trial court held that the mortgage lien had priority and the county appealed.

It is contended by the district attorney, who appeared for the county, that, under section 69-722, Oregon Code 1930, as applied in Getchell v. Walker, 129 Or. 602, 278 P 93, the tax lien has priority over all mortgage liens. The statute referred to, if applicable, is broad enough to embrace the mortgage lien in question here and, if the controversy were between the county and an individual, it would control. That statute, however, is not applicable and the authority cited is not in point for the reason that the State Land Board is a co-ordinate department of the state government created by the Constitution itself and, in all litigation to which it is a party, the state is the real party in interest. State Land Board v. Lee, 84 Or. 431, 439, 165 P. 372, 375. As there said: "When the state loans money belonging to the irreducible school fund, it does not act in a proprietary capacity stripped of the attributes of sovereignty; but, on the contrary, it is performing a duty enjoined upon it by law and is acting for the public. *** The title to the funds is vested in the state in its sovereign capacity; the state is not a mere dry trustee, but it holds the funds in trust for the common schools of the state, and hence in trust for a public purpose. ***"

It is a universally accepted rule that words of a statute applying to private rights do not affect those of the state, and that the sovereign authority is not bound by the general language of a statute which tends to restrain or diminish the powers, rights, or interests of the sovereign and when the rights of a commonwealth are to be transferred or affected, the intention must be plainly expressed or necessarily implied. U.S. F. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A. L. R....