State v. Clatsop County
| Decision Date | 16 July 1912 |
| Citation | 63 Or. 377,125 P. 271 |
| Parties | STATE v. CLATSOP COUNTY et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Clatsop County; J.A. Eakin, Judge.
Action by the State of Oregon against Clatsop County and another. From a judgment sustaining demurrer to a complaint, plaintiff appeals. Reversed and rendered.
Action by the state of Oregon against Clatsop county to collect a balance of $4,207.50 state taxes apportioned to that county for the year 1909. The trial court sustained a demurrer to the complaint and dismissed the action. Plaintiff appeals.
The substance of the allegations of the complaint are as follows That Clatsop county is an organized political division of the state of Oregon, with defendant William A. Sherman as county treasurer; that the Governor, Secretary of State, and State Treasurer, acting as a board, met and organized on February 2, 1909, to ascertain the amount of revenue necessary for state purposes for the ensuing year, and to adjust and equalize the assessments for the several counties of the state; that they met from time to time until the 24th day of February, 1909, when they duly adjusted such assessments and apportioned the amount of revenue among the several counties in the manner authorized by chapter 14, General Laws of Oregon 1909; that they sent due notice thereof to the respective counties of the state; that the proportion of the state revenue so apportioned to Clatsop county was $31,237.50, one half of which came due May 1, 1909, and the other half November 1, 1909; that on April 26, 1909 defendant William A. Sherman, as county treasurer, paid the sum of $13,515 on the first half of the state taxes, leaving a balance of $2,103.75 unpaid; that on October 26th of the same year another payment of $13,515 was made on the second half of the taxes, leaving a like balance thereon; that no part of these sums has been paid; and that the same is now due, with interest from the time delinquent.
The defendants filed a general demurrer, which was sustained by the court. The plaintiff not desiring to plead further, the court rendered judgment, dismissing the action.
I.H Van Winkle, Asst. Atty. Gen. (A.M. Crawford, Atty. Gen., and James W. Crawford, Asst. Atty. Gen., on the brief), for the State.
E.B Tongue, Dist. Atty., of Hillsboro, and Howard M. Brownell, of Oregon City, for respondents.
BEAN J. (after stating the facts as above).
No brief has been filed on behalf of defendants. We are informed by the Attorney General that counsel in the lower court contended that it was necessary for each step, in the proceedings taken by the state board to ascertain the amount of revenue to be raised, to be pleaded, in order to show the authority of the board in making the apportionment. It is maintained on behalf of the state that such matters are facts which the law presumes to exist, and therefore need not be pleaded; that, if the prima facie existence of such facts is questioned, it is incumbent upon the defendants to allege and prove the contrary. No motion was directed to the pleading, for the reason that the same was too general.
Section 798, L.O.L., enumerates the presumptions that are conclusive. It is enacted by section 799, L.O.L., that all other presumptions are satisfactory, unless overcome. These are denominated "disputable presumptions," and may be controverted by other evidence, among which is that contained in subdivision 15 (section 799, L.O.L), "that official duty has been regularly performed."
It is an ancient and well-established rule that, where the law presumes a fact to exist, it need not be stated in the pleading; but if it is to be put in issue the contrary averment must come from the other side. 1 Chitty on Pleading (16th Ed.) *243; Bliss on Code Pleading (3d Ed.) § 175; Phillips on Code Pleading, § 348; Baylies' Code Pleading and Practice (2d Ed.) p. 48; ...
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