Yamhill County v. Foster

• Decision Date: 19 January 1909
• Parties: YAMHILL COUNTY v. FOSTER, County Treasurer, et al.
• Court: Oregon Supreme Court

99 P. 286

53 Or. 124

YAMHILL COUNTY v. FOSTER, County Treasurer, et al.

Supreme Court of Oregon

January 19, 1909

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

Action by Yamhill County against Harrison E. Foster, as county treasurer, and another. Judgment for complainant, and defendants appeal. Reversed and dismissed.

This suit was commenced in May, 1908, by Yamhill county to enjoin and restrain the treasurer of such county from paying over to the state the amount apportioned to the county for state revenues for the year 1908. The complaint, after alleging that plaintiff is a duly organized county and political division of the state, and defendant its duly elected and qualified treasurer, avers that in January, 1908, the Governor, Secretary of State, and State Treasurer, acting jointly as a board, ascertained by computation, in the manner required by law, the amount of money necessary to be paid by the several counties of the state for state purposes; that it was the duty of the board to apportion such amount among the several counties by requiring each to pay such a proportion thereof as the assessed value of the property therein bore to the total assessed property of all the counties of the state that, upon such basis of apportionment, the amount justly and equitably chargeable against plaintiff is $23,167.03, payable one-half thereof during the month of May, 1908, and the balance on the 1st of November of that year; that the state board, in disregard to its duties, made the apportionment in an arbitrary manner and by an arbitrary rule, without reference to the value of the property in the several counties, and that upon such basis the amount apportioned to plaintiff was $44,965; that, although plaintiff is ready willing, and able, and has directed defendant, its treasurer to pay to the state the amount justly due it, the defendant is about to, and, unless restrained by an order of the court will, in obedience to the demands of the state officers, pay the entire amount apportioned to plaintiff county out of the money in his hands belonging to such county. Defendant demurred to the complaint on the grounds (1) that plaintiff has no legal capacity to bring this suit; (2) that there is defect of parties defendant, in that the state should have been made a party; (3) that the complaint does not state facts sufficient to constitute a cause of suit; and (4) that it does not state facts sufficient to warrant the relief demanded. The demurrer was overruled, and a decree rendered in plaintiff's favor, from which decree defendant appeals.

A.M. Crawford, for appellants.

Martin L. Pipes and James McCain, for respondent.

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

Although not alleged in the complaint, it was assumed at the argument, and we shall assume, for the purposes of this opinion, that the provisions of the law governing the manner of levying, assessing, and collecting taxes, apportioning state revenues among the several counties, and requiring them to make the necessary levy, have been fully complied with by both the state and plaintiff county. The questions presented for consideration are, therefore, (1) whether the act providing the manner of apportioning state revenues among the several counties is constitutional; and (2) if not, whether plaintiff is entitled to any relief by this suit.

The several constitutional provisions, so far as applicable, are as follows: "The legislative assembly shall provide by law for uniform and equal rate of assessment and taxation; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, literary, scientific, religious, or charitable purposes, as may be specially exempted by law." Section 1, art. 9 "The legislative assembly shall provide for raising revenue sufficient to defray the expenses of the state for each fiscal year, and also a sufficient sum to pay the interest on the state debt, if there be any." Section 2, Id. "Whenever the expenses of any fiscal year shall exceed the income the legislative assembly shall provide for levying a tax for the ensuing fiscal year, sufficient with other sources of income, to pay the deficiency, as well as the estimated expense of the ensuing fiscal year." Section 6, Id. In 1907 the Legislature passed an act for the levy and collection of taxes (Laws 1907, p. 453), section 8 of [53 Or. 128] which makes it the duty of the Governor, Secretary of State, and Treasurer, acting jointly, in January of each year, to ascertain by computation, as therein provided, the total amount of revenues necessary for state purposes, and to apportion the same among the several counties in accordance with a ratio or per cent. fixed and provided in section 9 of the act, which apportionment is not based on assessed valuations for the current year, but, as appears from the act of 1901 (Laws 1901, p. 176, § 5), as amended in 1903 (Laws 1903, p. 302, § 1), is based on the assessment of the several counties for the five years prior to 1901. Section 10 requires the Secretary of State to transmit, immediately after the apportionment is made, an accurate transcript of it to the county clerks of the several counties, and by section 1 the county court of each county is required at its term in January of each year to estimate the amount of money to be raised for county purposes and apportion such amount, together with state, school, and other taxes, according to the valuation of taxable property in the county for the year. Section 14 requires the county clerk to extend the taxes so levied upon the assessment roll and deliver it to the sheriff, who is tax collector of the county, and requires the county treasurers on or before the 1st of May to pay over to the State Treasurer, in gold and silver coin, out of the first moneys collected and paid into the county treasury for the current year, and over which the county has control, one-half of the amount of state taxes charged to their respective counties, and on or before the 1st day of November in each year to pay over the remainder so charged, without any deduction for any cause whatever. If the entire amount assessed to the county is not paid to the State Treasurer within 30 days after the same is payable, the unpaid balance becomes delinquent and a debt due and owing by the county to the state, upon which it is required to pay the legal rate of interest. Section 36 provides that if the county treasurer shall fail to pay the money over to the State Treasurer, as required by law, for 10 days, he shall forfeit to the state 20 per cent. of the amount withheld, and, if he fails for 30 days, he shall forfeit his office as treasurer, and be deemed a public defaulter.

In pursuance of these several provisions of law, the Governor Secretary of State, and State Treasurer, acting jointly, in January, 1908, ascertained the amount of money to be raised during that year for state purposes, and apportioned the same among the counties in the manner provided in section 9, and the Secretary of State duly notified the county clerk of plaintiff county of such apportionment. After receiving notice thereof, and in January, 1908, the county court of plaintiff county, as required by section 1 of the act of 1907, made a tax levy for that year sufficient to raise the necessary money for county purposes and the amount so apportioned to the county by the state officers. The assessment roll, with the tax duly extended thereon, was delivered to the sheriff for the collection of the tax, and, after a sufficient amount had been collected and paid over to the county treasurer to satisfy the first installment due the state, the county commenced this suit to restrain and enjoin the treasurer from paying the money over, on the ground that the law under which the apportionment was made is unconstitutional and void, because such apportionment was not made on an equal and uniform rate throughout the state. The Constitution requires the Legislature to provide for an equal and uniform valuation of property for taxation by public officers, at regular intervals, and an equal and uniform rate of taxation upon the basis of such valuation, until the period arises for making it anew. Perfect uniformity and equality in the valuation of property is unattainable. Approximation is all that can be had, and, unless the method adopted by law for that purpose is clearly...