Silverfield v. Multnomah County

JOHNS, J. Tbe defendants vigorously contend that equity does not have jurisdiction of this suit, and that is tbe vital question presented. Under tbe statute, tbe assessor not only has tbe power, but it is bis official duty, to assess all property in bis county as of March 1st of each year. However, be has no legal right to assess property to another which tbe latter does not own, have in bis possession or control. The ownership of the $10,000 worth of merchandise and stock in trade was made an issue, tbe plaintiff claiming that be did not own tbe property, and tbe assessor alleging that be did. On that issue of fact tbe Circuit Court found for the plaintiff. 1. It appears that tbe plaintiff was formerly in tbe fur business at 286 Morrison Street in tbe City of Portland; that he discontinued that business in tbe latter part of 1916 or early in 1917, “right after tbe holiday trade.” On December 20, 1916, be executed a lease of all of bis fixtures to E. Blank for a period of two years, at stipulated monthly payments, with tbe proviso that if all of them were made as they matured, Blank should become tbe owner of tbe property. Tbe latter took over tbe fixtures, remained in possession under bis lease and made his payments. For several years tbe plaintiff bad been assessed on bis merchandise at that place of business at a valuation ranging from $20,000 to $30,000, and bad paid all previous taxes, but be was not assessed on — 488 — any stock for the year 1916, because he had disposed of all of it and retired from business. Section 3591, L. O. L., as amended by Chapter 184, Laws of 1913, reads thus: “Every assessor shall require any person liable to be taxed in his county and to be assessed by him, and the managing agent or officer of any firm, corporation or association liable to be taxed in his county and to be assessed by him, to furnish such assessor: * * “A list of all of the personal property of such person, firm, corporation or association liable to be taxed in his county; which list shall include a statement to be made by such person, * * showing the true cash value of such personal property, or of the several items thereof, owned by such person, * * or in which such person * * has any interest. “The assessor shall require such person * * to make oath that, to the best of his knowledge and belief, such list * * contains a full and true account of all the * * personal property, * * or of any interest therein, of such person, * * liable to be taxed in said county, and the true cash value * * thereof. Should any such person * * when so required, refuse to furnish such list of * * personal property, with the true cash value or values thereof, or to swear to the same when required to do so by the assessor, such person * * shall forfeit and pay to the assessor, for the use of the county, the sum of $100. * * Should any such person, * * when so required, refuse to furnish and to swear to any such list, 'the assessor shall ascertain the taxable property of such person, * * and shall appraise the same from the best information to be derived from other sources. Upon the failure of any such person * * to make such valuation or valuations, the assessor shall be deemed to be the authorized agent of such person * * for the purpose of making said valuation or valuations, and the same, as given in the assessment roll, shall have the same force and effect — 489 — as if made under oath by said person. * * The assessor may increase any valuation made by any such person * * for purposes of assessment and taxation.” Although the date is not given, it appears that at one time an assessment blank was mailed to the plaintiff, and on June 19, 1917, the wife of the plaintiff verified a list before the deputy assessor, wherein it appeared that the only property of the plaintiff was an automobile of the value of $560. On September 8, 1917, the assessor levied an assessment against the plaintiff on merchandise and stock in trade valued at $10,000, and on the automobile at $560. It is evident that this was done without any notice or warning to the plaintiff or requiring him to make an oath as above provided. It is not shown that he refused to furnish a list of his personal property subject to taxation, that he was required to do so by the assessor, or that he refused to swear to such list. But, acting on information “derived from other sources,” the assessor, assumed that the plaintiff was the owner of the property in question, and that he should be assessed for it. On September 17, 1917, the plaintiff made and filed the above verified statement to the effect that the only personal property which he owned, consisting of some old store fixtures and odd pieces of fur, was valued at about $500, and therein declared his willingness to exhibit those articles to the assessor. Nothing more was done concerning the assessment, by either the assessor or the plaintiff. It is conceded that the notice of the meeting of the board of equalization was duly published. There is no proof that the plaintiff was ever personally notified of the specific time when the board would act on the $10,000 — 490 — assessment. The fact remains that the only record before the hoard was the assessment as originally made, to which was attached the plaintiff’s affidavit above noted. The plaintiff testified positively that he did not own or control any merchandise in Multnomah County during that year, to the value of $10,000 or any part thereof, and there is no evidence on the part of the defendants tending to show that he was such owner. The trial court found that he was not, and the evidence sustains the finding. If the plaintiff was not the owner of the property, it must follow that the assessor did not have authority to make the assessment complained of, and that unless the plaintiff had waived or lost his legal lights the board of equalization did not have any jurisdiction over it. 2. It is contended by defendants that by making and filing the affidavit the plaintiff submitted to the jurisdiction of the board and is bound by its ruling. It will be noted that the original assessment was made on September 8th; that the board met on September 10th; and that the affidavit was filed on September 17th. In other words, the assessment was made, not before, but during the period of publication'of'notice to property owners of the time and place of the meeting of the board of equalization. Section 3605, L. O. L., as amended by Chapter 184, Laws of 1913, requires each assessor to give “three weeks public notice in some newspaper,” of the meeting of the board, and to state therein that at such meeting the board “will attend at the courthouse in his county, and publicly examine the assessment-rolls, and correct all errors in valuation, description or' qualities of lands, lots or other property assessed by such assessor; and it shall be the — 491 — duty of persons interested to appear at the time and place appointed.” Section 3613, L. O. L., as amended by Chapter 184, Laws of 1913, reads as follows: “Any person who shall have petitioned for the reduction of a particular assessment, or whose assessment has been increased by the board of equalization, * * may appeal therefrom to the Circuit Court of the county.” The- defendants insist that the plaintiff had a legal remedy by an appeal from the decision of the board. When analyzed, the affidavit of the plaintiff, which was addressed to the board, is not made for the purpose of correcting an error in valuation or description of property, “for the reduction of a particular assessment,” an increase or a decrease in assessment. It was a showing to the effect that the plaintiff was not the owner of the property or any part of it, upon which the $10,000 assessment was made. The facts in the case of Searing v. Heavysides, 106 Ill. 85, are almost identical with those in the present instance, and it was there contended that there was an adequate remedy at law. The court held: “Where an assessor assesses personal property against one who was not the owner of the same on the first day of May, in the year for which the assessment is made, and who had no possession or control over the same at that time, and had no interest therein, the taxes levied on such assessment will be without warrant of law; and if the town board of review and county board refuse to give relief on application and proof, a court of equity will restrain the collection of such tax.” The opinion of this court in Portland University v. Multnomah County, 31 Or. 498 (50 Pac. 532), spea — 492 — king of the authority of the hoard of equalization, says: “And so it is with other corrections of the rolls which it is intrusted with the power to make. But where it is without jurisdiction or authority to act in the premises, it is useless to appeal to it for relief, as its orders pertaining thereto would prove absolutely nugatory and of no avail. “Touching the assessor’s authority, it appears that he has no jurisdiction to assess land or other property exempt from assessment and taxation,' and his action in the premises in determining that it is not used or occupied so as to bring it within the exemption is not conclusive, the fact being one on which jurisdiction depends. The question as to whether property is assessable under the statute is jurisdictional, and therefore open to inquiry, whenever the authority to make an assessment is asserted, notwithstanding the assessor has exercised his judgment thereon.” There the question involved was the right to assess property exempt from taxation. Here, the question is the right to make an assessment against an individual for property which he does not own or control. 3. In their reply brief the defendants claim that the assessment in question was not made upon non-existing property, and that the most that could be said against it would be that it was upon an excessive valuation. As found by the trial court, the $10,000 assessment was made upon other property than that owned by the plaintiff, and was a separate and distinct assessment from that upon the property which he did own. Under the facts, the question of an excessive valuation as to the $10,000 assessment is not involved, but it is the making of an assessment — 493 — against the plaintiff upon property which he did not own or control. We approve all of the findings of fact made by the Circuit Court and affirm the decree. AFFIRMED.