Sidebilder
PDF
ePub
[ocr errors]

money. A copy of a telegram introduced in A. I did; I had numberless telegrams. Q. evidence reads thus:

Have you got all those telegrams? A. I have. “Washington, August 26th, 1910. Chas. E. Q: Will you produce them? A. I have that one. Herron : You are authorized to execute my note is that? Q. August 26th. A. That seems to be

(Witness hands paper to counsel.) What date and mortgage of all my Bully Creek boldings to the first one. (Witness hands three other papers Garrett, five thousand dollars due on or before

to counsel.)"
one year, 6% interest. Catherine L. Shehan."
A copy of another telegram in the record is

The power of attorney in question was in

the following terms: as follows: "Washington, D. C., September 4, 1910. To Catherine L. Shehan, a widow, of Washington

“Know all men by these presents, that I, enable you to borrow $5000.00 I waive my prior City, in the District of Columbia, do hereby ity to that extent under my contract on Bully make, constitute and appoint Charles E. HerCreek property in favor of Garret, and author-ron of Vale, in the state of Oregon, my true and ize you to make him a first lien mortgage after mentioned, to wit: He is hereby author

lawful attorney, in and for the purposes hereinhave confirmed this by letter. [Signed] Cath

ized and empowered to execute and sign my erine L. Shehan."

name to a negotiable promissory note and deThe following is a copy of a telegram re- liver the same to Harry R. Garrett, said note ceived by Herron about that time:

to be dated September 6, 1910, for the sum of “Wash. D. C. 3 & 4th. Chas. E. Herron, the order of said Garrett on or before one year

five thousand ($5,000.00) dollars, payable to Vale, Oregon. Power attorney to execute note mortgage mailed today complete authority. M. after its date and bearing interest at six (6) per A. Ballinger.”

cent. per annum and payable at any bank at

Vale, Oregon. And the said Herron is further The power of attorney which is in question authorized to execute in my name a mortgage, in this suit arrived at Vale in the mail of or deed of trust, to secure the payment of said September 6th. The money was procured note and interest, upon and covering four hun

dred and eighty (480) acres of land owned by from two sources: $2,000 from Mrs. Corson, me in Malheur county, Oregon, that being all and $3,000 from the bank. Notes correspond- the land owned by me in said county, and also ing to the amounts were given to Harry R. all my right, title and interest in and to all waGarrett, the person named in the power of ter rights and surveys and reservoir and dam

sites owned by me in said county, said mortattorney, and a mortgage on the land and gage or deed of trust to be in the ordinary forin, water rights was executed and delivered to used in said county and the said Ilerron is auhim to secure their payment. At the same thorized to sign my name to said note and morttime Garrett assigned the mortgage and the gage, or deed of trust, and to acknowledge for two notes to C. W. Thebaud, an officer of mortgage, or deed of trust, and to deliver said the bank, and the mortgage and assignment note and mortgage or deed of trust to said Garwere afterwards recorded. At the time of re- rett, and said note and mortgage or deed of

trust, so executed and acknowledged to said ceiving the notes and mortgage, Thebaud Garrett shall be in all respects as binding on me executed what was termed a declaration of as though I had personally executed and actrust acknowledging that he held them in knowledged the same. trust for the bank and for Mrs. Corson. hand and seal this third day of September, 1910.

"In witness whereof, I have hereunto set my Afterwards Thebaud indorsed the notes to

“Catherine L. Shehan. (Seal.)" the plaintiff bank. It is shown by the evi

This instrument was acknowledged and re dence of J. W. Corson (pages 16, 17, Trans.) corded in Malheur county, Or. that the money was paid over to Mr. Herron

It is contended by counsel for defendant for Mrs. Shehan, to quote:

Mrs. Shehan that the note and mortgage "That amount, $5,000 actual cash, was re

(1) That two ceived by Charles E. Herron under his power of were void for the reasons: attorney for Catherine L. Shehan."

notes were executed instead of one; (2) that From the evidence of J. W. Corson to the notes provided that the interest should be whom Herron made an application for a loan paid semiannually, and, if not so paid, the and who states that he had personal knowl- whole sum should become due; (3) that Heredge of the negotiations and opened and read ron and wife signed the notes and mortgage, several of the telegrams received, the fol- thereby creating a cloud upon Mrs. Shehan's lowing appears:

title to the property; that there was a de"A. Mr. Herron made application to Mrs. parture from the power of attorney. Shehan for $5,000 which he needed on the prop- The evidence produced by the plaintiff is erty out here, and she wired him that she didn't not contradicted. have the cash, but if he could borrow it, to borl of the terms of the power. The defendants

There was no violation row it, and she would pay it. Q. What property do you have reference to? A. The Bully offered no evidence in the case. It is apcreek interests that were deeded by Mr. Herron parent from the record that Mrs. Shehan to her, including the land described in the deeds desired to obtain the loan of $5,000 for Herfrom Herron to Catherine L. Shehan, deeded land and water rights which she always referred ron to use in promoting the irrigation projto as her Bully creek property. Q. And she ect. There is no pretense that she desired and Herron were endeavoring to raise money the money to be forwarded to her at Washfor the improvement of that property? A. Yes. Q. And Herron was here in person, was he not: ington, hence it must be conceded that she A. Herron was here in town. Q. Talked with obtained the money and that it was delivyou about it? A. Talked with me about it, ered to Herron as it was intended to be, and and I told him I could get him the money if for her benefit. This was on September 6, he would get me a mortgage on the property. Q. And did you have any communication with 1910. Mrs. Shehan retained the benefit of

*

no known objection to the manner of the ex-general use. The same conclusion may be ecution of the power conferred by her upon suggested in regard to the promise to pay Herron until the commencement of this suit the $5,000 being on two pieces of paper inFebruary 3, 1913, more than two years and stead of one as a matter of convenience. five months after the power had been con- The rule is laid down in 31 Cyc. 1263c(1): ferred. She thereby impliedly waived any “In General. Ratification of the acts of an variance or departure in the execution of agent need not in most cases be express, but the power conferred, and was liable for the may be implied from the acts and conduct of debt. It is therefore plain that the $5,000 in tion may be implied from any acts or conduct

the principal, and generally speaking a ratificaquestion was invested in the same manner on the part of the principal reasonably tending as the proceeds of the former note of Mrs. to how such an intention on the part of the Shehan, and would inure to the benefit of principal to ratify the acts or transactions of the latter. In the event of the scheme being duct is inconsistent with any other intention.

the alleged agent, particularly where his consuccessful, she would realize a large profit * * * So a ratification may be implied where as she was to have $50,000 of the capital the principal has carried out or offered to per

$ stock of the corporation. It was no doubt knowledge of the whole, has accepted without

form a part of an unauthorized agreement with desired to have the additional loan in order objection a performance or a part payment or to save the $13,500 she had already invested. performance on the part of the other party to It therefore seems to me that it is very poor been shown to exist, the facts will be liberally

the agreement.

Where an agency has grace for Mrs. Shehan to come into a court construed in favor of the approval by the prinof conscience and seek to evade the payment cipal of the acts of the agent, and very slight of her note. It is not strange that with so circumstances and small matters will sometimes limited a capital to carry forward such an

suffice to raise the presumption of ratification.” immense undertaking that there should be We think the circumstances as shown by troubled waters upon the financial sea. When the uncontradicted evidence in this case were Mrs. Shehan authorized Herron to execute sufficient to put Mrs. Shehan, as a reasonably a mortgage in her name on the property held prudent person, upon inquiry as to the manby her to secure the payment of the $5,000, ner of the execution of the power. She had it is manifest that she intended a valid mort- executed her power of attorney authorizing gage to be executed, and if it was necessary the procurement of the loan, the execution for Herron and wife to sign the same, as it of a note and mortgage, and sent telegrams undoubtedly was, Mrs. Shehan has no reason approving the transaction. It is not conto complain. She could in no way be injur- sistent with business principles that she reed. It is shown by the triple contract re- mained for over two years without knowing ferred to above relating to the promotion or caring what had been done in regard of the enterprise, which was executed prior thereto. to the signing of the notes and mortgage, It is a familiar principle that a person canthat Mrs. Shehan held title to the property not retain the fruits of an unauthorized conembraced in the mortgage as security until tract made for his benefit by another assuma corporation should be organized and stock ing to act as his agent and repudiate the and bonds issued, when the same was to be responsibilities of such contract, and any attransferred to the corporation. That agree-tempt to so retain the benefits constitutes a ment also shows Ballinger's relations to the ratification of the unauthorized act and cretransaction, explains why he signed one of ates a liability on the part of such person to the telegrams, and shows the relations of the same extent as if such contract were the parties in the promotion of the irrigation originally authorized. La Grande National project. It appears therefrom that both Mrs. Bank v. Blum, 27 Or. 215, 217, 41 Pac. 659 ; Shehan and Herron were engaged in a joint Mullaney v. Evans, 33 Or. 333, 54 Pac. 886; enterprise, associated together for a common McLeod v. Despain, 49 Or, 563, 90 Pac. 492, purpose. By Herron and wife signing the 92 Pac. 1088, 19 L. R. A. (N. S.) 276, 124 Am. mortgage no cloud was created upon Mrs. St. Rep. 1066; Hillyard v. Hewitt, 61 Or. Shehan's title to the property. In this re- 62, 120 Pac. 750; Grover v. Hawthorne, 62 spect it was at the most mere additional evi-Or. 96, 114 Pac. 472, 121 Pac. 808; Perkins dence of the true condition of the title to v. Boothby, 71 Me. 91, 97. Subsequent ratithe same.

fication is equivalent to a prior authority The power of attorney did not specify when and ratification of a part is affirmance of the interest on the note should be paid. The the whole. Moss v. Rossie Lead Mining Co., parties seem to have prepared and executed 5 Hill (N. Y.) 137. the notes and mortgage as nearly in conform- The question of the expenditure of the ity with Mrs. Shehan's directions as they money obtained upon the note and mortgage knew how to do; one of the parties being was not one which the lender or mortgagee an attorney, and the bank officers taking part could oversee or direct. The money being in the transaction. The provision in the note paid to Herron, a person designated by Mrs. that the interest is "payable semiannually” Shehan to receive the same, was all the auamounts to but little more than a matter of thority that the parties making the loan could form. A blank for such time to be inserted exercise. The question of disbursement by is found in many of the forms of notes in the agent is entirely between the principal and the agent. McLeod v. Despain, supra. Viewing the transaction as delineated by In the case of Wilson v. Troup, 2 Cow. (N. the documents and evidence contained in the Y.) 195, 14 Am. Dec. 461, the court said: record, we think that any departure from

"In construing a power of attorney, therefore, the terms of the power of attorney, in the in order to ascertain whether it has been well execution thereof, was impliedly ratified by executed, the letter of the instrument is not to Mrs. Shehan. The plaintiff's witnesses have quiry is: Have the intentions of the parties given their version of the important dealings, been carried into effect?"

and, if their theory or delineation was inWe quote from Reinhard on Agency, $ 141: correct, it was incumbent upon the defend“Where the owner of real estate makes a ants to explain or show wherein the evidence power of attorney to an agent to sell the land of plaintiff was wrong. The equities are with of the owner, but does not by such power of at- the plaintiff. The judgment of the lower torney authorize the agent to make conveyance court should be affirmed. thereof, and the agent, in excess of his author court should be affirmed. ity, makes such a conveyance thereof, as well as sale, the principal, upon being informed, may

MONARY, J., concurs. reject such sale; but if he approves what has been done in his name, and accepts notes and mortgage given by the purchaser, and insists

(73 Or, 417) upon their payment after being informed of the

PACIFIC LIVE STOCK CO. v. COCHRAN.

. conveyance, he thereby ratifies the conveyance and the effect of the power of attorney to con- (Supreme Court of Oregon. Dec. 8, 1911.) vey as executed by the agent."

1. WATERS AND WATER COURSES (8 133*)-APIn all cases, whether the agency be general

PROPRIATIOX-I'ROCEEDINGS-FEES FOR DEor special, it is said to be a universal princi- TERMINATION OF WATER RIGHTS BY STATE ple that, unless the inference is expressly

WATER BOARD)- VOLUNTARY PAYMENT. excluded by other circumstances, it includes ings by the state water board to adjudicate wa

L. 0. L. & 6656, provides that if, in proceedall the usual modes and means of accomplish- ter rights, any claimant after notice shall fail ing the objects and ends of the agency. Sto- to appear and submit proofs of his claims, he rey on Agency, $ 85. In McDermott V. Jack- shall be barred from subsequently asserting any

rights theretofore acquired on the stream or othson, 97 Wis. 76, 72 N. W. 379, the court said: er body of water embraced in such proceeding,

“The principle that a person cannot retain and shall be held to have forfeited all right to the avails of an unauthorized contract, made the use of the water theretofore claimed by him. for his benefit by another assuming to act as Section 6641 provides that, at the time of subhis agent, and repudiate the responsibilities mitting proof of appropriation or of the taking of such contract, and that any attempt so to do, of testimony for the determination of rights to with full knowledge of the farts, constitutes a water, the division superintendent shall collect ratification of the unauthorized act, and creates from each claimant a fee of $1 for recording a liability on the part of such person to the same the water right certificate, and an additional extent as if such contract were originally au- fee graduated in accordance with the acreage for thorized, is familiar."

which water rights are claimed. leld, that

payment of such fees by claimant under protest, The case of Taylor v. Agricultural & ve-in proceedings so instituted in order that he chanical Ass'n, 68 Ala. 229, 237, 238, indicates might establish his claim and not suffer a forthat, while courts may not give relief in ac-feiture thereof, was not voluntary so as to pretions at law where powers have been ille- clude hin from subsequently suing to recover the

sanne on the ground that the fees exacted were gally executed, they will give the necessary illegal. relief in equity, and that the principal re- [Ed. Note.-For other cases, see Waters and ceiving and using the proceeds of an unau-Water Courses, Cent. Dig. § 146; Dei. Diy. $ thorized contract made by an agent ipso fac. 133.*] to ratifies the acts of the agent. The court 2. STATES ($ 193*)— ActiOx AGAINST-ILLEthere said:

GAL TAXES—RECOVERY-P’ARTIES SUBJECT TO

SUIT. "While this rule prevails at law, in equity

Where a state officer has collected an illegal i: is equally well settled that contracts or (on-tax or exaction and paid the same into the state veyances made by an agent having authority, treasury, as is his duty, an action to recover the though infornially and defectively executed, are same should be brought, not against him, but binding on and will be enforced against the prin- against the state. defective execution is the result of mere inadvert-Dig: s 180; Dec. Dig. $ 193.* ] cipal. * * * It is not material whether the

[Ed. Note.-For other cases, see States, Cent. ence, or whether it is founded in ignorance or Dig. $ 150; Dec. Dis. $ 193.*] mistake of the law."

3. TAXATION ($ 40*)-"Tax." Perkins v. Boothby, supra, was an action the laws of the several states, is ordinarily used

The word "tax," in common parlance and in for money had and received. The court said: to express the idea of sovereign power exercised

“When an agent without authority or knowl- for a particular purpose, to wit, to raise money edge of his principal borrows money and applies for general and ordinary governmental expenses, it to the payment and discharge of the legal lia- and as used in Const. art. 9, § 1, requiring unibilities of his principal, and the principal know- formity of taxation, means an exaction by the ingly retains the benefit of such payment, the sovereign from a citizen without his consent, a lender may recover therefor in an action against charge or pecuniary burden, imposed on the inthe principal for money bad and received. A dividual or his property, to support the general principal cannot knowingly retain the benefit of government or for some special purpose for inoney hired by his agent, in the name of the which the state may make requisition in a parprincipal, and at the same time legally refuse to ticular mode, and does not include fees required pay the loan upon the ground that the agent by claimants of water rights to be paid prior to had no authority to borrow money."

the determination of their rights in proceedings

*

[ocr errors]

*

*

instituted by the state water board for that pur- , receive or file the said statement, and the said pose by L. 0. L. $ 6641.

defendant then and there refused to file the said [Ed. Note.- For other cases, see Taxation, statement unless the said sum was paid to him. Cent. Dig. SS 68–89; Dec. Dig. § 40.*

That said plaintiff thereupon insisted that the For other definitions, see Words and Phrases, said statement be received and filed by him withFirst and Second Series, Tax.]

fendant refused to file or receive the same and 4. CONSTITUTIONAL LAW ($ 278*) WATERS illegally demanded and insisted upon the pay. AND WATER COURSES ($ 133*)-DUE PROCESS ment of the said sum as aforesaid.

LAW-FEES-APPROPRIATION-PROCEED- That the said plaintiff protested against the payINGS.

ment of the said sum on the ground that the L. O. L. § 6641, requiring each claimant same was illegal, extortionate, and deprived the of water rights, submitting his claim to the state said plaintiff of its right to set up its rights and water board for determination, in proceedings by defend its rights in the matter of the said adjuthe board to establish water rights on a stream dication of the water rights of said river, and used for irrigation, to pay certain specified fees, deprived plaintiff of its property without due graduated in accordance with the amount of process of law, and deprived it of the equal land within the claim of each claimant, is not protection of the law and prevented it from deunconstitutional as depriving claimant of his fending its rights without paying an exorbitant property without due process of law; such fees sum of money to the said defendant; and therebeing used to pay the expenses incident to the upon the said plaintiff under protest and involhearing and determination of the claims, to the untarily, and by reason of the compulsion of the survey of the land, etc.

said defendant, paid the said sum to the said de[Ed. Note. For other cases, see Constitutional fendant, and the said defendant took and reLaw, Cent. Dig. SS 763, 765, 767–770, 772–777, ceived the same from the said plaintiff, and 779-806, 808–810, 816-824, 907–924, 942; Dec. thereupon filed the said claim as aforesaid. At Dig. § 278;* Waters and Water Courses, Cent. the time of the said payment the said plaintiff Dig. š 146; Dec. Dig. $ 133.*]

notified the said defendant that the said pay5. CONSTITUTIONAL LAW ($ 211*) - EQUAL

ment was made involuntarily and under proPROTECTION OF LAWS-DISCRIMINATION.

test, but the said defendant still does retain the L. 0. L. $ 6641, requiring water claimants said money and the whole thereof, and refuses to pay specified fees as a condition precedent to to pay the same to plaintiff, and no part thereof their right to have their water rights determined has been repaid by deferdant to plaintiff. in proceedings by the state water board for

That the said payment was made inthat purpose, in so far as it exempts from pay- voluntarily and under compulsion and by reason ment claimants having permits issued under of the illegal demands of the defendant as aforeActs 1909, was not discriminatory, in view of said, and his refusal to file the said document section 6601, requiring the state' engineer to unless the said demands were complied with. exact in advance from an applicant for a per- fendant was wholly illegal and extortionate, and

That the said demand of the said demit to appropriate water exactly the same amount as fees which is exacted from claimants the said sum so demanded was not a proper fee on final determination under section 6641.

or any fee for the filing of the said paper, and [Ed. Note.-For other cases, see Constitutional condition of filing said paper was illegal and the

the said amount so demanded as aforesaid as a Law, Cent. Dig. § 678; Dec. Dig. $ 211.*]

amount thereof was grossly and entirely out of In Banc. Appeal from Circuit Court, all proportion to the services required by the Union County; J. W. Knowles, Judge.

said defendant in receiving and filing the said

document, and the said amount was not a proper Action by the Pacific Live Stock Company or any fee for the filing of the said document, against George T. Cochran. Judgment for but was an arbitrary tax and imposition placed defendant, and plaintiff appeals. Affirmed. upon plaintiff illegally preventing it from de

fending the proceedings which it was cited to deThe complaint alleges that defendant is a fend as aforesaid.” member of the board of control of the state

There was a prayer for judgment against of Oregon, now designated as the state water defendant for $103.44. The defendant deboard, and superintendent of water division murred generally, and, the demurrer having No. 2, and recites :

been sustained, plaintiff appeals. "That prior to any of the times herein mentioned the said board of control of the state of

Edward F. Treadwell, of San Francisco, Oregon determined to make a determination of Cal., and John L. Rand, of Baker, for appelthe rights of all persons to the waters of Silvies lant. A. M. Crawford, Atty., Gen., for reriver, and thereupon duly published notice requiring all parties claiming any rights therein spondent. to file statements of their claims and stating the time when the testimony would be taken,

MCBRIDE, C. J. (after stating the facts as all in accordance with the provisions of section 6636 of the General Laws of Oregon, and a copy above). The judge of the circuit court made of said notice was duly served upon plaintiff by and filed a lengthy and exhaustive opinion, registered mail, as provided by section 6637 of which, with certain exceptions hereinafter that said statement be filed with the defendant noted, we adopt as the opinion of this court. above named.

Thereafter and on the It is as follows: 28th day of July, 1913, plaintiff duly delivered “The above cause is before the court for decito the said defendant as such superintendent of sion on demurrer to the complaint. The allegawater division No. 2 its statement of its claims tions of the complaint are familiar to the atin and to the waters of Silvies river duly sworn torneys for both parties, and hence it is unto and containing all of the matters required by necessary to set forth the allegations of the comsection 6638 of the Laws of Oregon, and there- plaint in this opinion. Suffice it to say that this upon requested the said defendant to receive and is an action to recover money, which has been file the same.

That said defendant paid to the defendant, as one of the water superthen and there demanded of the said plaintiff the intendents of the state, and a member of the payment of the sum of $401.44, as an irrigation board of control, and which was paid to him unfee, and $1 as a certificate fee, before he would I der and by virtue of the provisions of section *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Diz. Key-No. Series & Rep’r Indexes

*

*

6641, L. O. L., which provides as follows: 'At authorities seem to hold that although a tax or the time of the submission of proof of appropria exaction may be illegal, yet if the officer, whose tion, or at the time of taking of testimony for duty it is to collect the tax collects the same the determination of rights to water, the division and turns it into the state treasury, the action superintendent shall collect from each of the should be brought against the state or municiclaimants or owners, a fee of $1.00 for the pur- pality, instead of the officer. Eugene v. Lane pose of recording the water rights certificate, County, 50 Or. 468, 93 Pac. 255; Yamhill when issued in the office of the county clerk, County v. Foster, 53 Or. 124, 99 Pac. 286. The together with the additional fee of 15€ for each presumption of law is that official duty has been acre of irrigated land up to and including 100 regularly performed. Subdivision 15, $ 799, L. acres, and 5¢ per acre for each acre in excess O. L.; Stephenson v. Van Blokland, 60 Or. 247, of 100 acres up to and including 1.000 acres, 118 Pac, 1026; Clark v. City of Salem, 61 Or. and 1¢ for each acre in excess of 1,000. * * * 116, 121 Pac. 416, Ann. Cas. 1914B, 205. All fees collected by the division superintendent Therefore the presumption is that the money shall be accounted for at the following regular collected from the plaintiff has been turned over meeting of the board of control and paid by such by the defendant to the state treasury, but the board into the state treasury, except, however, complaint in this case alleges, in paragraph 7 those fees due, or to be paid to the county clerk.' thereof, 'but the said defendant still does reA demurrer has been filed to the complaint up- tain the said money, and the whole thereof.' I on the following grounds: "That the complaint think that this allegation raises an issue as to fails to state facts sufficient to constitute cause whether or not the defendant had possession of of action against the defendant, in that the com- the money sought to be recovered at the time plaint shows upon its face that all the fees al- this action was commenced. leged to have been collected by the defendant, "Again, it is contended by counsel for the dewere collected under and pursuant to the provi- fendant, in support of their demurrer to the sions of section 6611, L. O. L., and hence were complaint, that the money was paid by the legally collected, and turned over to the state plaintiff to the defendant under and by virtue of treasury of the state of Oregon.'

the provision of section 6641, L. O. L., which is [1] "It is contended by counsel for the defend a valid enactment, and therefore the plaintiff ant, in support of the demurrer, that the money cannot recover the same. Counsel for the plainpaid to the defendant was a voluntary payment, tiff, on the other hand, claims that section 6641, and hence cannot be recovered back. It is al- in so far as it gives the division superintendent leged in the complaint that the money paid was the right to collect the fees specified in said paid under compulsion. However, I think that section, is illegal and unconstitutional, and therethe complaint clearly shows that the only com- fore the plaintiff has a right to recover the same. pulsion was the provisions of the water code re- This is the most important question presented quiring the same to be paid. Of course, it was for decision by the demurrer to the complaint. optional with the plaintiff, whether it paid the Counsel for the plaintiff claims that the imposimoney or not, that is, it was optional with the tion of these fees is a tax, and violates the conplaintiff whether it filed its claim; but if it did stitutional provision that a tax upon property not file its claim, under the law its right to have shall be equal and uniform, and that, as the the water it was entitled to have adjudicated money derived from these taxes goes into the genceased, and it could not afterwards have its eral fund of the state treasury, this property is right adjudicated. Under these circumstances, bearing an unjust burden of taxation; the preI do not believe that the payment was such a sumption being that it is already_taxed for genvoluntary payment that it could not be recover- eral revenue purposes. Ellis v. Frazier, 38 Or. ed. Under the authorities, if the party paying 462, 63 Pac. 642, 53 L. R. A. 454. the money has the right to contest the payment [3] "While the matter is not free from doubt, as a defendant in the case or has the right to yet I do not believe that upon principle and the enjoin the collection of the money without jeop- better authority the exaction of these payments ardizing any of his rights, a payment made un- is a tax under the meaning of the word 'tax,' as der such circumstances is a voluntary payment, applied to the raising of revenue. In the case and cannot be recovered. Such is the doctrine of State ex rel. v. Frazier, 36 Or. 186, 59 Pac. of the case of Johnson v. Crook County, 53 Or. 5, the Supreme Court of this state, in upholding 329, 100 Pac. 294, 133 Am. St. Rep. 834, and the constitutionality of an act providing for the also the case of Trower v. City and County of collection of what was alleged to be exorbitant San Francisco, 152 Cal. 179, 02 Pac. 10:25, 15 fees amounting to a tax, says: "The term “taxL. R. A. (N. S.) 183. The authorities also ation," both in common parlance, and in the hold that where the delay will prejudice the laws of the several states, says Mr. Justice Sawrights of a party because payment must be made yer in Emery v. Gas Co., 28 Cal. 315, 356, "has at a certain time, as a condition precedent to been ordinarily used, not to express the idea of filing a claim or presenting proofs, etc., and the sovereign power which is exercised, but the where illegal fees are exacted by one in official exercise of that power for a particular purpose, authority, preventing the immediate exercise of viz., to raise a revenue for the general and oran undoubted right, except on their payment, dinary expense of the government, whether it be they may be recovered, although the party may the state, county, town, or city government.” have resorted to mandamus proceedings to com- And it is in this sense the word is used in this pel the filing without payment. Trower v. City section of the Constitution, under consideration and County of San Francisco, supra; State v. (article 9, § 1). Assessment and taxation in Gorman, 40 Minn. 232, 41 N. W. 918, 2 L. R. themselves imply an exaction by the sovereign A. 701; Fatjo v. Pfister, 117 Cal. 83, 48 Pac. from the citizen without his consent, and a tax 1012. In the case at bar, the plaintiff was com- is a charge or pecuniary burden imposed upon pelled to make the payment on or before the an individual or his property for the support of 22d day of August, 1912, the time set by the the general government, or for some special purboard for the submission of proof of appropria-pose authorized by it for which the state may tion, and, if it did not pay the fees on or before make requisition in a particular mode. Burthat time, it could not submit its proof. I think rough's Tax'n, $4; Cooley's Tax'n, $1. It operthat the payment, under such circumstances, ates in invitum, without the consent of the taxwas an involuntary payment and therefore can payer and without reference to any special benbe recovered.

efit to him as contradistinguished from the rest [2] "Again it is contended by counsel for the of the community or class alike, according to defendant, in support of their demurrer to the some uniform rate or mode of assessment, or othcomplaint, that this action should be brought er just rule of apportionment, and it would be against the state, instead of against the defend- giving to the section of the Constitution under ant whose duty it is, after receiving the money, consideration an unnatural and unwarranted con

« ForrigeFortsett »