West Portland Park v. Kelly

Opinion by Mr. Chiee Justice Moore. 1. The plaintiff’s counsel contend that the injustice of the assessment complained of is so apparent that a court of equity should restrain the collection of that portion of the tax in excess of the amount legally due, and, having tendered the latter amount, the . court erred in denying the relief demanded; while counsel for defendant insist that the plaintiff had a legal remedy for the correction of the irregularity by applying to the county board of equalization, but having failed to make such application, a court of equity is powerless to enjoin the collection of any portion of the tax. The organic law of the state provides that all taxation shall be equal and uniform, (Constitution of Oregon, Art. I, § 32,) and to attain this end authorizes the legislative assembly to provide by law for securing a just valuation of all property not exempt from taxation: Constitution of Oregon, Art. IX, § 1. Section 2752, Hill’s Code, as amended by an act of the legislative assembly, approved February twentieth, eighteen hundred and ninety-three, (Session Laws, 1893, p. 6,) to compel uniformity in taxation, requires the assessor to assess the lands and lots owned by each person in his county at their true cash value, which shall be held and taken to mean the amount such property would sell for at a voluntary sale thereof in the ordinary course of business. The evidence shows that the — 416 — plaintiff could probably have obtained, upon a voluntary sale of its lots in the ordinary course of business, a sum equal to the value placed upon them by the assessor, but when the assessment complained of is compared with that of other lots of equal value in West Portland Park, it must be conceded that an injustice has been done the plaintiff by compelling it to bear an unequal burden. In alleging that the assessor valued its lots at the uniform rate of ten dollars each, and so entered the same in the original assessment roll, the plaintiff assumes that the block books constitute such rate; but these statements are not true, for the clerks in the assessor’s office entered the value complained of in the original assessment roll which was filed in the clerk’s office, a duplicate of which the assessor is required to make and retain in his office. 2. The plaintiff also alleges fraud on the part of the assessor as a ground of equitable interference to restrain the collection of the tax, and, had the proof supported the allegations of its complaint, the tax would have been void, in which case the power of the court to grant the relief demanded could hardly be questioned: Milwaukee Iron Company v. Hubbard, 29 Wis. 51; Merrill v. Humphrey, 24 Mich. 170; McConkey v. Smith, 73 Ill. 313; Chicago, etc., Railroad Company v. Cole, 75 Ill. 591; see also the compilation of authorities in the very exhaustive notes to Holland v. Mayor of Baltimore, 69 Am. Dec. 195. Mere errors of the assessor, resulting in inequalities in the rmluation of taxable property, will not vitiate a — 417 — tax: (Trustees Cincinnati Southern Railway Company v. Guenther, 19 Fed. 395; Smith v. Kelly, 24 Or. 464, 33 Pac. 642); but should he, from corrupt motives, overvalue taxable property, any tax based thereon would be void, and its collection would be enjoined on account of the fraud: Marsh v. Supervisors, 42 Wis. 502; Darling v. Gunn, 50 Ill. 424. Or, if he adopt a system of valuation designed to operate unequally upon different classes of property, equity will interfere to restrain the operation of such an unconstitutional exercise of power: Cummings v. National Bank, 101 U. S. 153; Chicago, etc., Railway Company v. Board of Commissioners, 39 Pac. 1039; Andrews v. King County, 1 Wash. 46 (22 Am. St. Rep. 136, 23 Pac. 409). The assessor must be responsible for the acts of his clerks, who entered in the assessment roll a valuation of twenty dollars per lot after the description of plaintiff’s property, and such assessment must be considered the judgment of that officer. It is evident a mistake occurred in making out plaintiff’s assessment, but there is certainly no evidence of fraud, and this being the ground upon which plaintiff’s right to equitable relief depended, the failure in the proof must necessarily be conclusive of the right. 3. The next question for consideration is whether the plaintiff, by failing to apply to the county board of equalization for a correction of its assessment, is precluded from enjoining the collection of any portion of the tax. As an excuse for its failure in this respect, the plaintiff’s agent, as a witness, testifies — 418 — that he relied upon his inspection of the entries of value made in the block books, and the representations of the assessor that ten dollars per lot would be the valuation. of its property. Section 2762, Hill’s Code, requires the assessor to prepare and retain in his possession a duplicate of the assessment roll, and make the necessary corrections thereon, so that it shall correspond with the assessment roll on file in the office of the county clerk, and also to make a plat of the government survey and town plats within his county, and note thereon the owner of each tract of land and of each town lot, and deliver such duplicate roll and plat, and other documents relating thereto, to his successor in office; but he is not required to nóte upon the plats or other documents the value of any taxable property. No assessment is therefore complete until the assessor enters in the assessment roll the value of real and personal property, Oregon and (Washington Mortgage Savings Bank v. Jordan, 16 Or. 113, 17 Pac. 624,) and hence any memorandum made or kept by that officer, to aid him in the performance of his duties, would not be binding either upon the state or the taxpayer. The assessor is a quasi judicial officer, vested by the statute with a discretion which he exercises in determining the value of taxable property, and, so long as the assessment roll remains in his possession, his judgment in this respect may be subject to change; but when he has filed the roll in the clerk’s office, his- duty and power are ended, and thereafter his judgment as to the value of property entered therein is to be determined from an inspec — 419 — tion of the record, and, since it will be. presumed that official duty has been regularly performed, it will also be presumed that the property assessed by him has been equally and ratably valued. Had the block books or other documents kept by the assessor been public records, so that the entries made therein would have constituted notice to all persons whose property might be affected thereby, the plaintiff could have relied upon his inspection of them; but such books and documents, though convenient for and valuable aids to the officer, are no part of the assessment roll, and convey no notice to the taxpayer of their contents. Nor should the representations of the assessor as to the value he expected to place upon property subject to taxation be binding upon the couhty, which, like other corporations, must speak by its records, and, being its mere agent that officer had no authority to make any statements that would be binding upon it; and, this being so, the plaintiff’s agent should. not have relied upon such representations. In Lefferts v. Supervisors, 21 Wis. *688, it is held that it was not necessary to apply to a board of equalization for the correction of an assessment corruptly and fraudulently made by an assessor. This must be so, for such an assessment would be void, in which case it binds no one affected thereby, but, there being no evidence of fraud in the case at bar, this rule can have no application. “The valuation,” says Mr. Chief Justice Waite, in Cummings v. National Bank, 101 U. S. 153, “ as finally fixed by the proper officer or equalizing board under the law, is, — 420 — in my judgment, conclusive where there has been no fraud.” In Oregon and Washington Mortgage Savings Bank v. Jordan, 16 Or. 113 (17 Pac. 624), Strahan, J., in rendering the decision of the court, says: “The plaintiff could have applied before the board of equalization of Multnomah County, then, and made such showing as would have induced that tribunal to make all necessary and proper corrections in its assessment; and, upon its refusal to do so, it could have sued out a writ of review, and brought the questions finally before the court. This was the plaintiff’s remedy, and the only remedy under the facts disclosed by the complaint, if such facts under any circumstances furnished grounds for relief. No authorities have been cited showing that a party is entitled to relief by injunction, under the facts disclosed by the plaintiff, and it is believed that none have gone so far.” When an assessment roll has been filed, it furnishes constructive notice to all owners of taxable property named therein of the value placed upon their property by the assessor, and if any such owner consider his property has been overvalued, the law affords him a tribunal, in the county board of equalization, to which he may apply for its correction, and, having this legal remedy, equity will not enjoin the collection of the tax, except upon the allegation and proof of fraud, or some other, fact rendering void the assessment. 4. It is also contended that the defendant, having accepted the amount tendered by the plaintiff, waived the right to demand or claim any further — 421 — payment, and for that reason the plaintiff is entitled to the relief prayed for in the complaint. This objection must prove unavailing, for the plaintiff conceded that the amount tendered was due in any event, and this being so, the defendant had the right to accept it: Oregon Railway and Navigation Company v. Oregon Real Estate Company, 10 Or. 444; Portland Construction Company v. O’Neil, 24 Or. 54 (32 Pac. 764). The plaintiff having neglected to apply to the county board of equalization for the correction of its assessment, and there being no fraud therein, it follows that the decree is affirmed. Affirmed.