Umatilla County v. Porter

• Decision Date: 05 March 1973
• Citation: 12 Or.App. 393,96 Adv.Sh. 1164,507 P.2d 406
• Parties: UMATILLA COUNTY, Oregon, a political subdivision of the State of Oregon, Respondent, v. J. Arvine PORTER et al., Defendants, Harry L. Keller et al., Appellants.
• Court: Oregon Court of Appeals

Page 406

507 P.2d 406

12 Or.App. 393

UMATILLA COUNTY, Oregon, a political subdivision of the State of Oregon, Respondent, v. J. Arvine PORTER et al., Defendants Harry L. Keller et al., Appellants.

Court of Appeals of Oregon.

Argued and Submitted Feb. 2, 1973.

Decided March 5, 1973.

Dennis A. Hachler, Pendleton, argued the cause for appellants. With him on the brief was Robert E. Ridgway, Pendleton.

Jack Olsen, Asst. Dist. Atty., Pendleton, argued the cause for respondent. With him on the brief was R. P. Smith, Dist. Atty., Pendleton.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

This appeal is in a Umatilla County tax foreclosure proceeding. The appealing defendants are persons who are record owners of certain tax delinquent property in the foreclosure proceeding and with whom there has been no recent contact. In an order entered in the proceeding the court appointed Dennis A. Hachler as attorney to represent these persons. This was done at the instance of the county's attorney, and it is apparent the action was taken in order to remove any question of compliance with the Soldiers' and Sailors' Civil Relief Act of 1940, 50 App.U.S.C.A. § 520 (1968).

On behalf of those whom he was appointed to represent Mr. Hachler filed a demurrer to the complaint in the tax foreclosure proceeding. Therein he challenged the jurisdiction of the court upon the ground that the publication of notice by which the county proceeded against the defendants' interest in the particular property involved failed to comply with constitutional guarantees of due process and equal protection of the laws.

ORS 312.040(1) provides that:

'Notice of each foreclosure proceeding * * * shall be given exclusively by * * * publications of the foreclosure list in a newspaper * * * (I)t shall not be necessary to mail a copy of the notice to the owner or to any other person interested * * *. All persons owning or claiming to own * * * are required to take notice of such proceeding and of all steps thereunder.'

ORS 312.050(2) provides:

'* * * Each such proceeding shall be a proceeding in rem against the property itself * * *.'

The constitutionality of these parts of the pertinent statutes are questioned by the defendants' demurrer. Apparently such questions regarding these statutes have not before been directly raised in tax foreclosure proceedings, although they have been raised in other proceedings after tax foreclosure proceedings have been completed.

Defendants rely principally upon cases such as Scoggin v. Schrunk, 344 F.Supp. 463 (D.Or., filed Dec. 29, 1971, amended opinion Feb. 9, 1972). ¹ That opinion was concerned with the foreclosure of residential property in the city of Portland for unpaid local improvement assessments, and in it the United States District Court Judge held that lack of proof of actual notice, or substantial effort to give actual notice to the defendant in the foreclosure proceeding, was constitutionally inadequate.

The distinction between assessments for local improvements and regularly accruing taxes dictates a different result in the case at bar. This distinction is traditionally and repeatedly pointed out not only in the Oregon precedents, ² which we mentioned above and which we discuss infra, but also in decisions by the United States Supreme Court. Longyear v. Toolan, 209 U.S. 414, 28 S.Ct. 506, 52 L.Ed. 859 (1908); King v. Mullins, 171 U.S. 404, 18 S.Ct. 925, 43 L.Ed. 214 (1898). In Knapp v. Josephine County et al., 192 Or. 327, 235 P.2d 564 (1951), the constitutional questions raised by the defendants here were discussed by the Oregon Supreme Court in a different context. In that case a suit was brought to remove a cloud in the title to real property. The property owner claimed that the tax foreclosure judgment constituting the title defect was invalid because of failure to include her name in the tax foreclosure list and published notice. Her name was not included because she had inherited the property from her father and had not notified the tax collector of her name, address and ownership and thus had received no notice. In that case the Oregon Supreme Court said:

'Because of (1) the nature of taxation, (2) the fact that tax obligations are imposed under public statutes with which the property owner is presumably familiar, (3) the regular recurrent assessment of taxes, and (4) the property owner's duty to the taxing unit, the demands of due process yield less for the property owner in tax foreclosure suits than in cases involving private obligations * * *.' 192 Or. at 340, 235 P.2d at 570.

'* * * (T)he fact that jurisdiction is obtained by publication in tax foreclosure proceedings does not invalidate the decree and the eventual deed. Likewise, the fact that tax foreclosure proceedings charge the owner with knowledge of entries made in the public records, pursuant to statutory requirements, does no violence to constitutional provisions.' 192 Or. at 347, 235 P.2d at 573.

'* * * (S)uits for the foreclosure of delinquent tax liens are in rem against the property. In such proceedings the Application for Judgment and Decree corresponds to the complaint in standard cases, and the published notice serves the same purpose as the summons in other proceedings * * *.' 192 Or. at 350, 235 P.2d at 574.

'* * * She (the property owner) was chargeable with the knowledge that taxes were levied upon the property annually and that...