Oregon City v. Clackamas County

CO SHOW, J. Section 605, Or. L., prescribes the duty of a writ of review in this language: “The writ shall be concurrent with the right of appeal, and shall be allowed in all cases where the inferior court, officer, or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously, or to have exceeded its or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise. Before a writ of review will issue it must appear from the petition that the inferior court, officer of tribunal whose order is sought to be reviewed was exercising judicial function. Ministerial acts or orders are not subject to be reviewed: Cole v. Portland, 96 Or. 645, 649 (190 Pac. 720); Sustar v. County Court for Marion County, 101 Or. 657, 660 (201 Pac. 445); Roethler v. Cummings, 84 Or. 442, 447 (165 Pac. 355). The amount of road taxes a city is entitled to, after collection, is ascertainable by exact computation, and the appropriate remedy is by an action at law to recover the amount due the city: Creason v. Douglas County, 86 Or. 159, 161 (167 Pac. 796); West v. Coos County, 115 Or. 409 (237 Pac. 961, 40 A. L. R. 1362); Wallowa County v. Oakes, 46 Or. 33, 35, 36 (78 Pac. 892); Gilliam County v. Wasco County, 14 Or. 525 (13 Pac. 364); State v. Baker County, 24 Or. 141 (33 Pac. 530). Did the County Court exercise any judicial function in apportioning the taxes admitted to have been transferred to Oregon City? The statute governing the apportionment of taxes, in so far as is applicable, reads as follows: *552 “It shall be, and is hereby made, the duty of the (county) court or commissioner’s court of each county in this state to levy a tax of not less than one mill nor more than ten mills on the dollar on all taxable property in such county at the time of making the annual tax levy, which shall be set apart in the county treasury as a general road fund, * * . Seventy per cent thereof shall be apportioned to the several road districts, including districts composed of incorporated cities and towns in such proportion as the amount of taxable property in each district shall bear to the whole amount of taxable property in the county, and the remaining thirty per cent shall be applied to roads in such locality in the county as the county court or commissioner’s court may direct; * • .” Or. L., §4600. The law further provides that incorporated cities are separate road districts and the 70 per cent' to be turned over to the road districts shall be transferred to such incorporated cities to be expended under the management of the officials thereof. It has been recently held by this court that this statute enjoins that duty upon the county which it must exercise. The county has no discretion except as to the amount of the levy: City of Astoria v. Cornelius (Or.), 240 Pac. 233. The statute defines specifically what shall be done by the County Court in making the apportionment. No discretion in making the apportionment is left to the County Court. No inquiry is to be made nor is any judgment to be exercised by that court. Its sole duty is confined to ascertaining by computation the amount of taxes which is to be apportioned to the several road districts and transfer the proper amounts to the incorporated cities as separate road districts within the county. The County Court is not called upon, therefore, to exer *553 cise any judicial function in making the apportionment of taxes properly allowable to the city road districts. The plaintiff relies on the cases of Oregon City v. Moore, 30 Or. 215 (46 Pac. 1017, 47 Pac. 851), and Oregon City v. Clackamas County, 32 Or. 491 (52 Pac. 310). An examination of thése cases, however, discloses that they are in harmony with this opinion. Under the law as construed in those cases the County Court had a judicial function to perform. The law prescribes: “Such County Court shall apportion the taxes so collected among the several road districts in the county, having due regard to the amount of taxes 'collected in the several road districts, to the condition of the 'roads, and necessity for repairs, and to the amount of travel thereon.” Laws 1893, p. 60. It clearly appears that the application of the statute from which the above excerpt is taken required an investigation and inquiry, the exercise of discretion and judgment which was properly held to be the exercise of judicial functions. 5. The law is well settled in this state that a writ of review will lie only when there is no other adequate, complete or plain remedy: Plaintiff had a complete remedy by an action at law: Authorities cited above; Chapman v. Hood River County, 91 Or. 92, 97 (178 Pac. 379). 6. The petition for the writ of review does not state facts sufficient to authorize the issuance of a writ. Before a writ should issue the petition must disclose facts entitling the petitioner to the relief prayed for: Sustar v. County Court, 101 Or. 657, 660 (201 Pac. 445); Davin Land Co. v. School Dist. No. 71, 78 Or. 273, 275 (152 Pac. 1189); Hochfeld v. Port *554 land, 72 Or. 190, 193 (142 Pac. 824); Drummond v. Miami Lumber Co., 56 Or. 575, 576 (109 Pac. 753); Holmes v. Cole, 51 Or. 483, 486 (94 Pac. 964); Fisher v. Union County, 43 Or. 233 (72 Pac. 797). The petition in the instant case demands that the county turn over to it 70 per cent of the taxes collected from the taxable property in Oregon City. The facts stated in the petition show only the amount of the taxes collected from the property in Oregon City and 70 per cent thereof. The law does not require the county to turn over to Oregon City 70 per cent of the taxes collected therefrom. The requirement of the law is that such proportion of the 70 per cent of the road fund collected as the total tax-, able property within Oregon City bears to the total taxable property in Clackamas County shall be transferred to the City. If all of the taxes levied in the county were paid that proportion would be 70 per cent. It is a matter of common knowledge that all taxes levied are not paid. As a matter of practice it is not at all likely that the delinquent taxes of Oregon City would be the same proportion as the delinquent taxes of other parts of the county. The legislature evidently took cognizance of that fact, else why the provision to apportion the 70 per cent of taxes collected iif'the proportion the taxable property of Oregon City bears to the taxable property of the county? If the legislature intended that the county should pay to the several road districts 70 per cent of the amount of the taxes collected therefrom it would have been a very easy matter to have said so. The county is not' required to pay 70 per cent of the entire taxes levied for road purposes but only 70 *555 per cent of the amount collected: City of Pendleton v. Umatilla County, 117 Or. 140 (241 Pac. 979). For example: If Clackamas County collected $200,000 for road purposes for the year 1919, 70 per cent of that amount or $140,000 should have been distributed to the various road districts of the county. The amount, however, to he apportioned to any individual road district was such proportion of that $140,000 as the total taxable property of the district bears to the total taxable property of the entire county. This part is not at all likely to be 70 per cent of the amount collected from a particular road district. From all that appears in the petition the county may have transferred to Oregon City the entire amount due it. 9. In considering the petition for the writ of review upon a motion to quash only the petition itself will he considered: Drummond v. Miami Lumber Co., 56 Or. 575, 576 (109 Pac. 753); Holmes v. Cole, 51 Or. 483 (94 Pac. 964). 10. While it was not necessary for the court -to make findings of fact and adopt conclusions of law, its doing so was a mere matter of supererogation: Kime v. Thompson, 60 Or. 183 (118 Pac. 174). That of itself does not constitute reversible error. For the reasons assigned herein the judgment of the Circuit Court is reversed and the cause remanded, with directions to allow the motion to quash. Reversed and Remanded. McBride, C. J., took no part in this decision.