201 P. 1079 | Or. | 1921
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.
“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 in*260 formation, 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.
“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, 619 (98 Pac. 489). See Hannah v. Wells, 4 Or. 249;
“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, 48 (164 Pac. 576); 31 Cyc 296; 21 R. C. L. 526.
“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 (81 Pac. 503); Kingfisher County v. Graham, 40 Okl. 571 (139 Pac. 1149).
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.