Tillamook City v. County Court of Tillamook County

• Decision Date: 01 March 1910
• Citation: 56 Or. 112,107 P. 482
• Parties: TILLAMOOK CITY v. COUNTY COURT OF TILLAMOOK COUNTY et al. [d]
• Court: Oregon Supreme Court

107 P. 482

56 Or. 112

TILLAMOOK CITY v. COUNTY COURT OF TILLAMOOK COUNTY et al. ^[d]

Supreme Court of Oregon

March 1, 1910

Appeal from Circuit Court, Tillamook County; William Galloway Judge.

Writ of review by Tillamook City against the County Court of Tillamook County and others. Judgment for plaintiff, and defendants appeal. Reversed, and writ dismissed.

The plaintiff in this case was incorporated by the Legislature by a special act passed at the session of 1893; the act of incorporation being found at pages 545 to 564 of the Session Laws of Oregon for 1893. It is provided in the charter of plaintiff, among other things (pages 551, 552, Laws 1893) that the common council shall have power within the limits of plaintiff "to collect road tax from all property in said corporation equal to that now levied by law for road purposes, to be expended upon the highways, streets, and alleys within said corporation, under the supervision of the common council, and the citizens and property within said corporation shall be exempt from the same taxes for county purposes." For the year 1908, plaintiff made no levy for road tax. The county court of Tillamook county, however, made a levy for such purpose of eight mills on the taxable property in said county, including the property within the corporate limits of plaintiff. The plaintiff on April 9 1909, demanded of said county all of said road tax assessed against the property within its limits, and the county refused to pay said demand, but ordered one-half of said road tax, or four mills thereof, to be turned over to plaintiff. The plaintiff thereupon sued out a writ of review from the circuit court of Tillamook county, to review the action of the county court in that matter, and, upon the hearing of said writ of review, the court found in favor of plaintiff and ordered all of said road tax to be paid over to plaintiff by the defendant Tillamook county. From this judgment, the defendant appeals.

The law, at the time the charter of the plaintiff was enacted provided for the levying of road taxes by counties of less than 10,000 inhabitants to the amount of not to exceed $1.50 on the $1,000 valuation, or, in other words, a tax of 1 1/2 mills. Section 4085, Hill's Code.

H.T. Boots (John H. McNary, Dist. Atty., and W.H. Cooper, Deputy Dist. Atty., on the brief), for appellants.

Webster Holmes, for respondent.

McBRIDE J. (after stating the facts as above).

The decision of this case turns primarily upon the construction to be given to subsection 2, § 2, art. 4, of the Charter of Tillamook City (Sess.Laws 1893, pp. 551, 552). Among other powers granted the plaintiff by this section is found the following: "To collect road tax from all property in said corporation equal to that now levied by law for road purposes, to be expended upon highways, streets, and alleys within said corporation under the supervision of the common council, and the citizens and property within said corporation shall be exempt from the same taxes for county road purposes." The charter went into effect immediately by virtue of an emergency clause thereto attached, having been filed with the Secretary of State February 13, 1893. At the time of its passage, the amount levied by general laws for county road purposes was 1 1/2 mills on the dollar. Subsequently to the passage of the act incorporating plaintiff, but at the same session of the Legislature, an act was passed permitting counties to levy a tax of 5 mills on the dollar for county road purposes; but this act did not take effect until 90 days after the adjournment of the Legislature. Later an act was passed permitting a levy of 10 mills on the dollar, which act is still in force.

Plaintiff contends, first, that the words "now levied by law" should be construed so as to mean "now or hereafter levied by law"; in other words, that the intention of the Legislature...