State v. Baker County

• Decision Date: 19 June 1893
• Parties: STATE v. BAKER COUNTY.
• Court: Oregon Supreme Court

33 P. 530

24 Or. 141

STATE v. BAKER COUNTY.

Supreme Court of Oregon

June 19, 1893

Appeal from circuit court, Baker county; James A. Fee, Judge.

Action by the state of Oregon against Baker county. From a judgment for defendant, the state appeals. Reversed.

Geo. E. Chamberlain, Atty.Gen., for the State.

M.L Olmsted, for respondent.

BEAN J.

This action was commenced early in 1892 to recover the unpaid balance of the state taxes charged and apportioned to Baker county during the years 1879 to 1885 inclusive, and from 1889 to 1891 inclusive. The complaint contains 10 counts or causes of action, and in each count all the facts necessary to show the liability of the county are alleged. To the first six causes of action a demurrer was interposed on the ground that they were barred by the statute of limitations, and to the entire complaint a demurrer, which was sustained by the court below, on the ground that the plaintiff had no capacity to sue, and for want of jurisdiction of the subject-matter. In support of the ruling of the court below it is contended that this action cannot be maintained under section 350 Hill's Ann.Laws, which provides that "an action may be maintained against any of the organized counties of this state upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise." In Grant Co. v. Lake Co., 17 Or 453, 21 P. 447, this court had occasion to consider the effect of this section, and it was therein held that the authority to maintain an action against a county on an obligation created by law is not derived from said section but exists independently of it, and that section 350 must be construed in connection with section 2239, which subjects a county to a suit or action on account of any matters arising out of its corporate obligations, whether created by contract or otherwise. If, therefore, the duty of Baker county to pay its proportion of the state taxes is a corporate obligation imposed upon it by law, it is clear, under the decision referred to, that this action can be maintained; and this brings us to the principal question in the case. It is contended for the defendant that there is no corporate obligation on the part of the county to pay the amount of state taxes apportioned to it, but that the remedy of the state is against the treasurer of the county, whose duty it is to pay the amount so apportioned, and not against the county in its corporate capacity. So far as the taxes accruing prior to the act of February 26, 1885, are concerned, this question was, in effect, decided adversely to the defendant's contention in Multnomah Co. v. State, 1 Or. 359. In that case it was held that the law created the relation of debtor and creditor between the several counties and the state, and, as no particular remedy was provided for enforcing the obligation, it would necessarily follow that an action at law is the proper remedy. The act of 1885 (Laws 1885, p. 135) does not, it seems to us, change this relationship, but only the mode of ascertaining the amount to be paid by the several counties. To hold that under this act the counties of the state are not severally made liable for the amount of state taxes assessed upon the property within them would be doing violence to both the spirit and letter of the law. After making provisions for ascertaining the property in each county subject to taxation, and the value thereof, the law requires the county clerk to transmit to the secretary of state a certified copy of the assessment roll, (section 2788,) and the governor, secretary of state, and state treasurer, acting jointly, immediately after receiving the abstracts of the assessment rolls of the several counties, to ascertain by computation, in a specified manner, the total amount of revenue necessary for state purposes, with the resulting rate of taxation, and to apportion the total revenue among the several counties according to the amount of real and personal property subject to taxation therein, (section 2789,) to be paid to the state treasurer, in gold and silver coin, out of the first moneys collected and paid into the county treasury, (section 2813,) without any deduction or abatement on account of delinquent taxpayers, (section 2791,) and to be levied and collected in each county in the manner other taxes are levied and collected, (section 2790.) All this points clearly to the county as the principal debtor. It would be difficult to find language more expressive of the legislative intent and purpose to make the counties liable in their corporate capacity for the amount of the state tax apportioned to each. The state does not deal with the individual taxpayers, or assume any responsibility for the collection of the tax, but with the county only. The revenue of the state is apportioned among the counties, to be paid by them in proportion to the taxable property in each. This is the basis upon which the amount payable by each county is to be ascertained. The primary liability belongs to the counties, and the state looks to them alone for its revenue. The means afforded them to raise the money with which to...