Allen v. Craig

| Or. | Nov 29, 1921

HARRIS, J.

The defendant contends, (1) that the right to maintain this action is in the county and not in the assessor; and (2) that, even though it be assumed that the assessor is entitled to begin and prosecute this action in his own name, he is only a nominal party, while the county is the real party in interest; and that consequently the county is entitled to exercise control over the litigation and can cause the action to be dismissed.

1. Section 4273, Or. L., commands every assessor to require any person liable to be taxed in his county and to be assessed by him to furnish to such assessor a list of all the real and personal property owned by such person liable to taxation in such county together with a statement of the value of such real and personal property. The assessor is also commanded to require the property owner

“to make oath that, to the best of his knowledge and belief, such list, * # contains a full and true account of all the real or personal property, or both, * * to be taxed in said county, and the true cash value of such real or personal property.”

The statute further provides that if the property owner

“refuses to furnish such list of real or personal property with the true cash value or values thereof, or to swear to the same when required so to do by the assessor, such person * * shall forfeit and pay to the assessor, for the use of the county, the sum of $100, which sum may be recovered by action in any court having jurisdiction of matters of debt or contract to the amount 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 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.

Does Section 4273, Or. L., enable the assessor to begin and prosecute an action in his own name? It is clear that if a recalcitrant property owner pays the penalty before action is begun, he pays to the assessor; for the statute in express terms prescribes, that the property owner “shall forfeit and pay to the assessor, for the use of the county. ” It is also clear that if the recalcitrant owner refuses to pay the penalty he can by an action be compelled to pay; for in express terms the statute declares that the penalty “may be recovered by action,” but this statute does not expressly state who can maintain such action. It is not in terms declared that the assessor can maintain an action; and, therefore, if the assessor can prosecute the action in his own name his authority to do so is an implied and not an express authority.

2. We may appropriately direct attention to the rule prevailing at common law concerning the recovery of penalties. At common law actions to recover penalties were often prosecuted by “common informers.” In order to prosecute the action in his own name, the informer must be authorized so to do either (a) expressly by statute, or (b) by necessary implication; and it has been frequently held that where a statute gives a portion of the penalty to an informer such statute by necessary implication authorizes the informer to begin and maintain an action in his own name. However, the statement that authority may be implied from the fact that a portion of the penalty, when recovered, goes to the informer, has been many times, although not always, held subje'ct to the qualification that if there be a general statute providing that all actions to recover penalties may be brought in the name of the county or state, the informer has no right to prosecute the action.

3, 4. It is usually held that where there is a general statute providing that all actions for penalties may be prosecuted by the county, and there is also a statute providing that a portion of a penalty shall in a given class of cases go to an informer, the express language of the former statute will prevail over any mere implication which might be suggested by the latter statute: Williams v. Wells Fargo etc. Express, 177 F. 352" court="8th Cir." date_filed="1910-03-03" href="https://app.midpage.ai/document/williams-v-wells-fargo--co-express-8774503?utm_source=webapp" opinion_id="8774503">177 Fed. 352 (101 C. C. A. 328, 21 Ann. Cas. 699, 35 L. R. A. (N. S.) 1034); 21 R. C. L. 213; 21 Standard Ency. of Proc. 274-276. It must not be understood that we are treating the plaintiff as one who under the common law is known as “a common informer,” for our only purpose is to call attention to the rules which should be applied if it be assumed that the plaintiff occupies the position of an informer or a position analogous to that of an informer: See 12 C. J. 156. In the instant case the plaintiff is attempting to recover by virtue of his office; but even then he cannot maintain an action in his own name for the recovery of any penalty accruing to the county unless he is authorized by statute: 16 Ency. of PI. & Pr. 259.

5. If Section 4273, Or. L., stood alone and it were the only statute to be considered, it might be held that this statute by necessary implication authorizes the assessor to begin and maintain an action in his own name; bnt Section 4273, Or. L., does not stand alone, and it is onr view that, when this section is considered in connection with other statutes to which attention will be directed, the assessor is not the proper party to prosecute the action authorized by Section 4273.

6, 7. The whole of the penalty goes to the county, and none of it goes to the assessor; and, hence, the county and not the assessor is the real party in interest. Section 27, Or. L., provides that,—

“Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in Section 29.”

Upon turning to Section 29, Or. L., we find that it reads thus:

“An executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.”

The assessor is not an executor or administrator. Although it may be assumed that the assessor occupies the position of a trustee of an express trust if the penalty is actually paid to him without action, nevertheless it would require an undue expansion of the meaning of the language employed in Section 29, when considered in connection with other sections of the Code, to say that the assessor is before payment the trustee of an express trust; and, hence, unless the assessor is expressly authorized by statute the action must be prosecuted in the name of the county or in the name of some other officer who is expressly authorized by statute, because the county is the real party in interest: Malheur County v. Carter, 52 Or. 616" court="Or." date_filed="1908-12-15" href="https://app.midpage.ai/document/malheur-county-v-carter-6900967?utm_source=webapp" opinion_id="6900967">52 Or. 616, 619 (98 Pac. 489). See Hannah v. Wells, 4 Or. 249" court="Or." date_filed="1872-09-15" href="https://app.midpage.ai/document/hannah-v-wells-6893386?utm_source=webapp" opinion_id="6893386">4 Or. 249; Section 1019, Or. L. We do not attempt to decide whether the district attorney is authorized to sue, for it is sufficient here to say that neither Section 4273, O'r. L., nor any other statute expressly authorizes the assessor to prosecute the action in his own name; and, consequently, if no statutes are considered except Sections 27, 29 and 4273, Or. L., the plaintiff must fail. But there are additional reasons for holding that the plaintiff cannot recover.

8, 9. It is provided by Section 357, Or. L., that—

“An action at law may be maintained by any county * * in its corporate name * * to recover a penalty or forfeiture given to such public corporation.”

Confronted as we are with this statute expressly authorizing the county to sue for a penalty accruing to it, is it not manifest that the legislature did not intend by a mere implication to be extracted from Section 4273 to confer upon the assessor the right to sue when that same right was and is expressly given to the county? If the legislature had intended to authorize the assessor to sue, such intention could have been easily and plainly expressed. The right to maintain an action to recover the penalty prescribed by Section 4273 is not in the assessor, but in another, and, consequently, the complaint fails to state a cause of action, and the judgment must be reversed: Crowder v. Yovovich, 84 Or. 41" court="Or." date_filed="1917-04-10" href="https://app.midpage.ai/document/crowder-v-yovovich-6905697?utm_source=webapp" opinion_id="6905697">84 Or. 41, 48 (164 Pac. 576); 31 Cyc 296; 21 R. C. L. 526.

10. If, however, it be assumed for the purpose of further discussion that the assessor is authorized to sue for the penalty, nevertheless it was his duty to dismiss the action when directed to do so by the County Court. By force of Section 937, subdivision 9, Or. L., the County Court is giveu “the general care and management of the county property, funds and business, where the law does not otherwise expressly provide”; and in Section 938, Or. L., it is declared:

“All actions, suits, or proceedings by or against a county are in the name of such county, but the county is represented by the County Court, and such court has authority and power to control and direct the proceeding therein, as if it were plaintiff or defendant, as the case may be. ’ ’

The County Court was entitled to control the prosecution of the action, and as between the plaintiff and the County Court the latter was, at least in the absence of fraud, supreme; and the assessor ought to have discontinued the action: Kerby v. Clay County, 71 Kan. 683" court="Kan." date_filed="1905-07-07" href="https://app.midpage.ai/document/kerby-v-board-of-county-commissioners-7895682?utm_source=webapp" opinion_id="7895682">71 Kan. 683 (81 Pac. 503); Kingfisher County v. Graham, 40 Okla. 571" court="Okla." date_filed="1914-03-31" href="https://app.midpage.ai/document/kingfisher-county-v-graham-3819517?utm_source=webapp" opinion_id="3819517">40 Okl. 571 (139 Pac. 1149).

11. Moreover, the adjudication made by the board of equalization on September 29, 1919, was a judicial decision that the verified list and statement which Craig submitted to the assessor and the latter refused to accept was a true and correct list of Craig’s property and a true and correct statement of the value of such property: Steel v. Fell, 29 Or. 272" court="Or." date_filed="1896-07-18" href="https://app.midpage.ai/document/steel-v-fell-6897115?utm_source=webapp" opinion_id="6897115">29 Or. 272 (45 Pac. 794); Oregon & Cal. R. Co. v. Jackson County, 38 Or. 589" court="Or." date_filed="1901-03-25" href="https://app.midpage.ai/document/oregon--cal-r-r-v-jackson-county-6898564?utm_source=webapp" opinion_id="6898564">38 Or. 589, 602 (64 Pac. 307, 65 P. 369" court="Or." date_filed="1901-06-17" href="https://app.midpage.ai/document/municipal-security-co-v-baker-county-6898649?utm_source=webapp" opinion_id="6898649">65 Pac. 369). The judgment rendered by the board of equalization has not been reviewed, nor revised, nor modified; but, upon the contrary, at the time of the trial in the Circuit Court the judgment of the board of equalization stood as a finality and as such was, at least in the absence of fraud, binding upon the assessor, even though it be assumed that the assessor can in his own name prosecute an action for the recovery of the penalty.

The judgment is reversed and the cause is remanded, with directions to enter a judgment in favor of defendant for his costs and disbursements.

Reversed and Remanded With Directions.