Alliance Trust Co. v. Multnomah County, 63 P. 498

Alliance Trust Co. v. Multnomah County

63 P. 498 | Or. | 1901

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

1. The contention of plaintiff’s counsel that the release of the mortgages in question and the repeal of the mortgage tax law rendered the tax sales void is without merit; for in Dekum v. Multnomah County, 38 Or. 253 (63 Pac. 496), it was held that a mortgage of real property given to secure the payment of a debt conveyed, for the purpose of assessment and taxation, an interest in the premises, and that a tax levied upon the debt and security created a lien upon such interest, which could not be discharged by releasing the mortgage.

2. In Smith v. Kelly, 24 Or. 464 (33 Pac. 642), it was held that the repeal of the mortgage tax law did not destroy the remedy with respect to the existing mortgage taxes, because, by the tax system considered as an entity, these taxes were collectible under other prpvisions of the statute; that when a tax system is revised, and a former law repealed, the legislative intent is assumed, in the absence of any provision to the contrary, to be of prospective force only, and prior valid assessments were not affected thereby; and that the act of February 21, 1893 (Laws 1893, p. 85), read in connection with the repealing act of February 10 of that year (Laws 1893, p. 6), left no room for doubt as to the legislative intent in reference to the collection of the mortgage taxes levied prior thereto.

3. Plaintiff’s counsel assign many other reasons tending to show that the tax levied upon the respective debts and s&*437curities is invalid, but, inasmuch as it has not tendered the sum so levied, it is not entitled to equitable interposition. In Welch v. Clatsop County, 24 Or. 452 (33 Pac. 934), Mr. Chief Justice Lord, in commenting upon this principle, says : “In view of the authorities, the considerations which influenced a court of equity to restrain the collection of a tax are confined to cases where‘the tax itself is not authorized, or, if it is, that such tax is assessed upon property not subject to taxation, or that the persons imposing it were without authority in the premises, or that they had proceeded fraudulently.” It will be remembered that this is a suit by a taxpayer to escape the burden which the law imposed upon it, and in such case the rule is well settled that a court of equity will not interfere by injunction to> restrain the collection of the tax until the plaintiff has tendered the amount that can be shown to be due: Goodnough v. Powell, 23 Or. 525 (32 Pac. 396); Hibernian Benev. Soc. v. Kelly, 28 Or. 173 (52 Am. St. Rep. 769, 42 Pac. 3); Dayton v. Multnomah County, 34 Or. 239 (55 Pac. 23). Plaintiff’s debts and mortgages were proper subjects of assessment, and the tax levied thereon was authorized by law and imposed by officers upon whom the duty devolved,, who did not proceed fraudulently in the premises. If any irregularity occurred or fraud was practiced in the attempt to collect the tax, whereby expenses were improperly or unlawfully incurred, it was nevertheless incumbent upon plaintiff, as a condition precedent to equitable relief from such expenses, to tender at least its ratable share of the public revenue, based upon the value of its property which had been protected under the law. Much stress is laid by counsel for the appellant upon the case of Hughes v. Linn County, 37 Or. 111 (60 Pac. 843), in which it was held, in a suit to prevent a cloud upon the title to real property, instituted by a party who succeeded to the owner’s estate therein by a conveyance thereof in satisfaction of a mortgage, that it was not necessary to *438tender the taxes levied upon an assessment of said property, and charged against the former owner, as a condition precedent to equitable interference, Mr. Justice Bean saying: “It is well to observe at the outset that this is not a suit to enjoin the collection of taxes, nor is it a controversy between the taxpayer and the county authorities.” In the case at bar the primary object of the suit, when instituted, was to enjoin the collection of the taxes ; but after the sale of the plaintiff’s interest in the premises it became, by amendment, a suit to remove a cloud from its title, but at all times it was a controversy between the taxpayer and the county authorities, and hence it should have tendered the taxes levied upon its property. Not having done so, the decree is affirmed.

Affirmed.