1 Or. Tax 292 | Or. T.C. | 1963
Decision for plaintiff rendered April 30, 1963. *This is a proceeding in mandamus. Upon the petition of the City of Woodburn, this court issued an alternative writ of mandamus, requiring the assessor of Marion County to extend a levy for street lights in Woodburn upon the assessment and tax rolls of Marion County against the taxable properties within the City of Woodburn or to show cause why he should not be required to do so. The assessor demurred to the writ and, upon a pleading defect, the demurrer was *299 sustained. The city then petitioned for rehearing upon the demurrer and, such rehearing being granted, raised an issue of constitutional interpretation. The demurrer again was sustained upon technical grounds of pleading. A second alternative writ was issued, to which the assessor answered, bringing the cause to issue on the law and facts. Trial was had upon stipulation and oral testimony.
Admittedly, there is no direct, express, statutory authority for the issuance of the writ. While a property tax matter, no proceeding in this fact situation is expressly authorized in the Oregon Tax Court Act. Therefore, the plaintiff has turned to common law principles and seeks its remedy in mandamus. Since all prior proceedings in the regular division of this court have been unquestionably within the expressed statutory procedures of the Oregon Tax Court Act, this case presents such a far-reaching and fundamental jurisdictional question of first impression, affecting matters as distant from this case as equitable recoupment and set-off [See Commissioner of Int. Rev.v. *300 Gooch Mill. E. Co.,
The primary issues of this case are three in number and follow one from the other. They are:
(1) Assuming for the moment the general power in this court to issue the writ of mandamus, does the remedy lie in this type of case?
(2) If mandamus is the proper remedy, does this court have the jurisdiction to issue the writ?
(3) Did the assessor properly refuse to extend the street lighting levy as violating the terms of ORS
Because this court cannot rule upon the third major issue unless it reaches an affirmative conclusion on the two procedural and jurisdictional issues, and because the first issue, if answered in the negative, would dispose of the case, this decision will be divided into these three major issues and will discuss them in the order stated.
"* * * Under the code, the office of the writ is precisely the same as it was under the common law. (Warner v. Myers,
4 Or., 75 ; Durham v. Monumental S. M. Co.,9 Or., 43 .) It may be issued to any inferior court, corporation, board, officer or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office trust or station. * * * The writ shall not be issued in any case where there is a plain, speedy and adequate remedy at law. (Civil Code, sec. 583.) The object of the writ is to prevent a failure of justice, and is based upon reasons of justice and public policy. 'The reason why we grant these writs,' said Lord Hardwick, when presiding in the King's Bench, 'is to prevent a failure of justice, and for the execution of the common law, or of some statute, or of the King's Charter.' (The King v. Wheeler, Cas. temp. Hardw. 99; S.C. Cunningham, 155.) To the same effect, but more fully, Lord Mansfield expressed himself as follows: 'A mandamus is a prerogative writ, to the aid of which the subject is entitled, upon a proper case previously shown, to the satisfaction of the court. The original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Within the last century, it has been liberally interposed for the benefit of the subject and advancement of justice. The value of the matter, or the degree of its importance *302 to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied. (Rex v. Barker, 3 Brun., 1265, 1267.) In brief, the writ is a summary remedy, for the want of a specific one, where there would otherwise be a failure of justice. (State, Relation of McClellan v. Graves et al.,19 Md., 374 .) Its object is not to supersede, but to supply the want of a legal remedy. To authorize its issuance, two facts must coexist, the right to have the particular act or duty performed and the want of an adequate or specific remedy at law. In determining them, the question presented by this record, it is not sufficient to warrant the relief prayed for that the plaintiff has a clear legal right to have the duty performed, but it must also appear that the law affords him no other specific, legal remedy, fully adequate to redress his grievances. * * *"
The nature of an adequate remedy in this context was succinctly stated by Mr. Justice LATOURETTE in State ex relRicco v. Biggs,
"4, 5. Mandamus is an extraordinary remedy and is not a writ of right; it will never issue unless the duty sought to be enforced is one legally defined. Neither will it issue where there is a plain, speedy, and adequate remedy in the ordinary course of law. However, to bar mandamus, the law remedy must afford all relief to which the plaintiff is entitled. State ex rel. Hupp etc. Corp., supra. The primary function of a writ of mandamus is to enforce an established right and to enforce a corresponding imperative duty created or imposed by law. It is designed to promote justice. It may issue even where other remedies exist, if they are not sufficiently speedy to prevent material injury. Propriety of the issuance of the writ is determined by the inadequacy, and not the mere absence, of other legal remedies and the danger of a failure of justice *303 without it. State ex rel. Pierce v. Slusher,
117 Or. 498 ,501 ,244 P. 540 ."
Thus, both the lack of a clear duty and the lack of an available and fully adequate, legal remedy must appear before the writ will lie.
The parties generally agree upon the material facts of this case as set forth in the amended writ. While the defendant denied most of the amended writ upon information and belief to put the plaintiff on its proof, he offered no contrary evidence, the allegations of the writ, other than legal conclusions, were proved, and *305
no objection to the levy has been made, and no basis for the action of the defendant as directed by the commission has been alleged, other than the failure of the ballot measure to conform to ORS
"306.545. Any taxpayer, county assessor, county board of equalization or county sheriff aggrieved by and directly affected by an order of the State Tax Commission may appeal to the Oregon Tax Court, * * *."
The defendant's position is that, under this section, either the city could have appealed to this court from the commission order or, if not, a taxpayer of the city could have appealed on its behalf. The plaintiff contends that this statute makes no provision for appeal by the tax levying body and that a city, with the right to sue and be sued, is not required to seek its remedy by the subterfuge of a taxpayer representing its interests.
Clearly this statute does not provide for a suit by the city. Only four types of plaintiffs are contemplated by the statute and they are expressly named. Therefore, the city could not have proceeded under ORS
The defendant next contends that, if the city has no remedy, no remedy was intended for it but rather such remedy is specifically denied to the city under ORS
"306.580 The remedies provided for in ORS
305.105 ,305.515 to305.555 and306.515 to306.560 shall be exclusive and no taxpayer, county officer or board shall maintain any suit, action or special proceeding in any court of this state with respect to the assessment and taxation of property or the collection of any tax thereon on any grounds, including fraud, where it shall appear that such remedies were available."
A full discussion of this section is not necessary here. Suffice it to note that the same parties who were granted a remedy by ORS
The defendant does not deny that it is his duty to extend a levy as a ministerial act, but he claims that the State Tax Commission order relieved him of this duty, thereby destroying any right to mandamus. In support of his position, he cites ORS
In addition, though he did not, he might have sought to rely upon ORS
"310.070 If the levy reported to the clerk and assessor under ORS
310.050 is in excess of the constitutional or statutory limitations, or both, the assessor shall not enter the excessive levy upon the tax roll of the county and the assessor, upon the advice of the State Tax Commission, shall extend upon the tax roll of the county only such part of the levy as will comply with the constitutional and statutory limitations governing the levy."
However, there is no allegation that the levy is excessive or that the assessor acted under this section. In fact, the record establishes that he refused to act on the advice of the commission and required its *308
formal order. While ORS
The question, then, boils down to this: Does the mere issuance of the commission order defeat the pre-existing, clear right to the writ — does its issuance destroy the clear legal duty of the assessor without any right of review of the validity of that order? The logical answer is negative. To hold otherwise is to say that this apparent right has no remedy, a position which Mr. Justice Johnson referred to so cryptically as "rather paradoxical." Fairfax's Devisee v. Hunter's Lessee,
7 Cranch (11 US) 603, 629. The city cannot appeal from the order under ORS
The compulsion of ORS
Here we have a right searching for a remedy. With the sole right to review property tax orders of the commission vested in this court and with the terms of ORS
"1.160 When jurisdiction is, by the constitution or by statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by the procedural statutes, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the procedural statutes."
As pointed out in Aiken v. Aiken,
Since the extension of a levy on the rolls is a ministerial duty of the assessor, a suitable process or mode of proceeding is mandamus, the remedy which the plaintiff has chosen. The writ is not sought in an attempt to supersede an existing remedy. Since ORS
As usual, the goal of such construction must be to ascertain and pronounce the legislative intent. State v. Rawson,
8. The Oregon Tax Court Act, Oregon Laws 1961, ch 533, created a court of justice (ORS
The act also makes important changes by substantially enlarging the scope and function of judicial proceedings in tax controversies. This subject is fully discussed in Strawn v.Commission,.
"Clearly, from all these various features, the legislative intent in the adoption of the Oregon Tax Court Act was to confer on this court the broadest powers of determination and to give it the tools with which to exercise its jurisdiction *312 properly. * * * The proceeding before this court is plenary, not summary; it is an independent, de novo trial of the issues before the court, not merely a review of the record for error in procedure or jurisdiction; and now, as in other justiciable controversies, the litigant can obtain a full and complete remedy in taxation from an independent court exercising full judicial powers."
From the terms of the Oregon Tax Court Act considered as a single, integrated, legislative action, it appears that the legislature sought, not to reduce the taxpayer's remedy by creating an inferior court with limited powers, but rather to replace the circuit court in this technical field of taxation with a new, specialized court having broad, remedial powers; and, in so doing, it intended to grant to this new court within its general field all the circuit court powers of a general, trial court. Prior to the creation of the Oregon Tax Court, the circuit court would have had the power to issue the writ of mandamus in this case. ORS
The Oregon Tax Court Act is the culmination of a legislative effort to obtain an independent, tax tribunal *313 in Oregon which began in 1949, when Senator Ben Musa introduced a bill to create a board of tax appeals, an independent, administrative tribunal.1 At that time, general professional thinking on tax adjudication contemplated the limited review of an administrative board. The United States Tax Court was, and is, part of the executive branch of government, and while its powers are somewhat broader than those of the usual, administrative board, it is not a court in the sense of a general, trial court at the state level. It and one or two state boards of tax appeal, as well as Senator Musa's personal background in administrative proceedings as a certified public accountant, were the influencing factors in the choice in 1949 of the board of tax appeals approach.
The 1949 effort of Senator Musa met failure, as did his efforts, and later those of his wife, Representative Katherine Musa, in ensuing sessions until 1959.2 In 1959, the legislature passed a bill creating a board *314 of tax appeals.3 Though Governor Hatfield supported legislation of this type, he was forced to veto this bill because no funds had been provided for the board's operation.4
Finally, in the 1961 legislative session, this twelve year effort was brought to a successful conclusion. In that session the legislature had before it the bill which became the Oregon Tax Court Act and a bill to create a board of tax appeals.5 In the two years intervening between the 1959 and 1961 sessions, the Oregon State Bar6 and the accounting profession had been active *315 in considering the alternatives and preparing the legislation.7 After consideration of the two alternatives and at the urging of the bar and the accounting profession, the legislature made the clear-cut choice of a tax court as part of the judiciary of the state.
In interpretation of this act, the legislative decision between the choices available and presented to it is entitled to full consideration. State ex rel Appling v. Chase,
First, the act specifically authorizes this court to issue the writ of mandamus to require a taxpayer to file a tax return. ORS
A limitation of the amendment to the particular case can be supported by the maxim "expressio unius est exclusio alterius."Rosentool v. Bonanza Oil and Mine Corp.,
On the other hand, the foregoing maxim is not a rule of law but merely a guide in determining intent. Moore v.Schermerhorn,
This mandamus section appears to be the only express grant of the writ in tax cases and provides for its issuance where mandamus ordinarily would not lie. Prior to 1961, the power to issue the writ in this situation, as well as the review of tax cases, was vested expressly in the circuit court. This did not conflict with the grant of exclusive, mandamus jurisdiction to the circuit court. ORS
With the adoption of the Oregon Tax Court Act, it was the legislative intent to transfer all the circuit court functions in income, property, and forest taxation to the tax court. ORS
To read the Oregon Tax Court Act so stringently as to permit mandamus in this court only in the case expressly described in ORS
11. Yet this problem in construction of apparently conflicting statutes cannot be ignored. Since, after 1961, ORS
Perhaps primary among the sections of the Oregon Tax Court Act lending support to the general theory of a transfer to this court of all circuit court powers in its tax fields is ORS
"305.410 (1) Subject only to the provisions of ORS
305.445 relating to judicial review by the Supreme Court, the tax court shall be the sole, exclusive and final authority for the hearing and determination of all questions of law and fact arising under the tax laws of the state in cases within its jurisdiction."(2) No person shall contest, in any action, suit or proceeding in the circuit court or any other court, any matter reviewable by the tax court."
Of similar import, but limited to property tax cases, is ORS
"306.580 The remedies provided for in ORS*320305.105 ,305.515 to305.555 and306.515 to306.560 shall be exclusive and no taxpayer, county officer or board shall maintain any suit, action or special proceeding in any court of this state with respect to the assessment and taxation of property or the collection of any tax thereon on any grounds, including fraud, where it shall appear that such remedies were available."
These two statutes overlap. The latter was an existing statute and was amended in 1961. The former, far more inclusive, is an original enactment in 1961. The exact limitations of ORS
To read ORS
Yet the legislature did enact ORS
Finally, the theory of a general grant of circuit court powers is supported by section 54 of the act, now subsection (4) of ORS
Thus, from the Oregon Tax Court Act as a whole, there appears a clear legislative purpose and objective to transfer to the tax court all the powers of the circuit court in income, property, and forest tax cases. This intent to create a court of general jurisdiction in taxation appears not only from the act as a whole but also from its legislative history, including the clear-cut choice of a plenary judicial court over a limited, administrative tribunal, but also from the language of ORS
As a court of general jurisdiction, the circuit court has always applied the remedy of mandamus in appropriate tax cases. Under ORS
The conclusion to which the controlling legislative intent, purpose, and objectives and the statutory language leads us and which leads directly to the next, very difficult problem is that the Oregon Tax Court Act created a court in which is vested not only those remedies specifically set forth in the act but also all those remedies in income, property, and forest taxation which have been recognized as being vested in the circuit courts prior to 1962 and which are vested in this field in courts of general jurisdiction as nonstatutory remedies, legal, equitable, and special, to which taxpayers have been permitted to resort when the statutory remedies are not plain, speedy and adequate. Among these remedies is the writ of mandamus.
To say that the legislative intent of the Oregon Tax Court Act is that the tax court have, not only the remedies described in the statute, but also those which the circuit courts heretofore have exercised in taxation is to find that, by definition, the tax court within the field of state income, property, and forest taxation is a court of general jurisdiction, as opposed to a court of special, limited, and inferior jurisdiction. Such finding leads inevitably, as will be seen, to the conclusion that the remedy provided by statute for judicial review of tax cases is not a special and statutory remedy but is intended by the legislature to be a general remedy. Yet to so find this court one of general jurisdiction, administering a general, rather than a special, statutory, remedy, conflicts head on with prior judicial thinking concerning the courts and their remedies in this field. An ultimate conclusion based upon the legislative intent and running contrary to decisions with respect to prior tax review statutes and procedures is only warranted after a complete consideration of the alternatives and the various, fundamental concepts involved.
"* * * 'Nothing shall be intended to be out of the jurisdiction of a Superior Court, except that which especially appears to be so; on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court, unless it be so expressly alleged.' "
This distinction in their jurisdiction creates a further distinction in the import attaching to the judgments or decrees of courts of general and inferior jurisdiction. As stated inTustin v. Gaunt,
" 'A Court which is competent, by its constitution, to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence on which it is rendered, whose record is absolute verity, not to be impugned by averment, or proof to the contrary, is of the first description; there can be no judicial inspection behind the judgment save by appellate power. A Court which is so constituted that its judgment can be looked through for the facts and evidence which are necessary to sustain it, whose decision is not evidence of itself to show jurisdiction and its lawful exercise, is of the latter description; every requisite for either must appear on the face of their proceedings, or they are nullities.' "
14. In effect, then, a court of general jurisdiction has the power to dispose of all matters within its general ken, unless a statute takes the particular power away, and its jurisdiction of a particular case is presumed. On the other hand, a court of special, limited, and inferior jurisdiction only has that jurisdiction *325
expressly conferred by a statute and in each case its statutory jurisdiction must be established by the pleadings. In connection with these definitions, it must be noted that a limitation as to general subject matter does not render a court limited or inferior, viz: probate courts. Fox v. Lasley,
This jurisdictional distinction is basic to this case, because here there is no express, statutory authority for this court's issuance of mandamus. If this court is to have the power to hear and decide all income, property, and forest tax cases, as it appears that the legislature intended it should, this court must be a court of general jurisdiction, one not restricted to only those powers expressly conferred by statute, and, unless it is a court of general jurisdiction, this writ of mandamus will not lie from this court. If, on the other hand, despite the legislative intent to the contrary, this court is a special, limited and inferior court and has no power not expressly conferred by statute, then, the writ does not lie from this court.
16. To determine the jurisdiction of a court by the nature of the remedy which it is empowered to invoke raises the question of whether, in fact, the legislature can create a court of general jurisdiction as such. The legislature cannot create a remedy known to the common law. It can only codify, amend, or repeal the common law remedies. Any remedy which the legislature creates must, by definition, be a special, statutory remedy. Since it cannot create a common law remedy, it cannot create a court of general jurisdiction. It can only create courts to which it assigns remedies. Thus, it probably is more accurate to say that the legislature, by assigning various remedies to a court, has the power to determine, by the general or special, statutory nature of those remedies, whether the court is one of general or special, limited, and inferior jurisdiction. It is because the nature of the remedy assigned to this court determines the nature of its jurisdiction and because the nature of that remedy as heretofore determined by the courts with respect to the circuit courts conflicts with the intent of the legislature to make this court a court having general jurisdiction that in this case we are faced with the dilemmas as to jurisdiction and remedy. *327
"1, 2. A circuit court, although a court of general jurisdiction, is, when 'exercising a special power conferred upon it by statute, and not according to the course of the common law,' a court of special and inferior jurisdiction, such jurisdiction being limited by the terms of the statute conferring the power."
Such was the rule expressly declared in property tax cases byIn re Gebauer Apartments,
This definition of the remedy in taxation as special and statutory under the prior procedure in circuit court did not preclude other than statutory remedies being exercised in taxation, including the special proceeding *328
at issue in this case, because, in addition to being a court of special, limited, and inferior jurisdiction when exercising the tax review procedures provided by statute, the circuit court also was constitutionally a court of general jurisdiction. Consequently, despite statutes making certain tax review proceedings exclusive, it nonetheless has always been recognized that the circuit courts have had powers beyond the so-called "special, statutory remedy," powers which they have exercised in the tax field as courts of general jurisdiction. Among these powers have been those of equity and the power to invoke the special remedies. Injunctions: Dant Russell, Inc.v. Pierce,
The legislative intent in the Oregon Tax Court Act to transfer to this new court the prior circuit court jurisdiction in taxation is not as simple a problem in statutory construction as first appears, because there must be considered in the construction the basis in the Oregon Tax Court for that jurisdiction sought to be transferred, since its character as a court of general *329 or inferior jurisdiction is dependent upon the nature of its remedies.
18. This court already has held that proceedings in its small claims division are special and statutory and that in that division it is a court of special, limited, and inferior jurisdiction. Not being a court of record, its jurisdiction being limited as to amount, its decisions not being precedent, and various other features clearly make the small claims division an inferior court. See Draper v. Mullennex,
19. If the effect of the Oregon Tax Court Act is merely to transfer to the regular division of this court the special, statutory remedy which previously was exercised by the circuit court, the end result can hardly be that intended by the legislature. Though the finding of the statutory tax review proceeding in the circuit court to be special and statutory and not according to the common law reduced the circuit court to an inferior court as to those remedies (Wadhams Co. v. State TaxComm., supra; In re Gebauer Apartments, supra; McCain v. StateTax Com., supra) it retained its general jurisdiction in all other regards, even in taxation. Kollock v. Barnard, supra;Clatsop County v. Taylor, supra. On the other hand, a similar finding that the remedies set forth in the statute to be exercised by the regular division of the Oregon Tax Court are special and statutory proceedings, results in both divisions of the court, the regular division and the small claims division, having only special and statutory proceedings and, therefore, only special, limited, and inferior jurisdiction. If this is the result, this court by express statutory grant would have no *330 general jurisdiction, no proceeding which is not special and statutory, no jurisdiction which is not special, limited, and inferior. Logically, a court without general jurisdiction, by definition, cannot be a court of general jurisdiction.
In this event a finding that the Oregon Tax Court remedy is special and statutory, as was its predecessor, would result in either of two conclusions as to the present status of the total tax remedies existing in the circuit court prior to January 1, 1962. The first, alternative conclusion is that the statutory remedies are vested in the tax court, while the remedies arising out of the general jurisdiction of the circuit court have remained vested in the circuit court. For them to remain in the circuit court defeats the apparent, clear, legislative intent to make the tax court the exclusive court in its field and to relieve the less specialized and already heavily burdened circuit courts of involvement in this technical field. ORS
20. To achieve the intent, purpose, and objectives of the Oregon Legislature in the enactment of the Oregon Tax Court Act, two other courses are available. Either the transfer of the general jurisdiction of the circuit court in equity and special proceedings in taxation to the Oregon Tax Court can be implied from *331
the clear, legislative intent manifest in the act or the remedy provided by the Oregon Tax Court Act can be interpreted to be a remedy known to the common law, thereby making this new court to which the remedy is assigned a court of general jurisdiction in taxation. To adopt the first alternative would be strained construction and anomolous, indeed. It requires the interpretation that a court, having only special, statutory remedies as its express jurisdiction, be deemed to have potentially far greater powers by mere implication. This construction is contrary to the general practice. For instance, the courts have refused to imply to the circuit court sitting in divorce any general powers of a court of equity. Zipper v.Zipper,
Instead of straining any such implication of general jurisdiction into the act in support of the legislative intent to create this court as a court of general jurisdiction to which are assigned all the remedies of judicial review in taxation, it would be far more profitable and more consonant with the ordinary concepts of statutory construction to reconsider the nature of the remedies of judicial review in taxation in the light of the far broader scope of those remedies under the Oregon Tax Court Act, as discussed inStrawn v. Commission, supra, to ascertain whether the new remedy is, in fact, the same, special, statutory remedy exercised by the circuit courts heretofore or is rather in *332 its broader form under the present act a general remedy known to the common law. Such reconsideration has already been suggested under the prior act in the dissent in McCain v. StateTax Com., supra. It is warranted not only because the legislative intent, purpose, and objectives of the act appear in conflict with prior concepts of the judicial function and remedy in taxation but also because the Oregon Tax Court Act has made such substantial changes in the methods, purpose, and function of judicial review in tax cases. To some extent this inquiry is a continuation of that begun in Strawn v.Commission, supra.
The cases distinguish between the general and special remedies upon the single ground of their common law origin or lack of it. For instance, in Garner v. Garner, supra
(
"* * * At common law, the secular courts had no jurisdiction to take cognizance of suits for divorce a vinculo matrimonii. Jurisdiction of such causes, in the United States, is strictly of statutory origin. [Citations omitted]"
In adoptions, Mr. Justice HAY, in Williams v. Capparelli,
"* * * Adoption is of civil law derivation, and was unknown to the common law. Adoption proceedings *333 are the exercise of a power conferred by statute, and have no other sanction. * * *"
This decision was closely followed In re Frazier's Estate,
Attachment under our statute also is a special, statutory remedy because it "had its origin in the customs of the city of London, and though such practice was very ancient, it was not of common-law origin but in derogation thereof * * *."Edwards v. Case,
In the tax field, the term "special, statutory proceeding" has been used to describe a summary proceeding first inSmith Securities Co. v. Multnomah County,
On the other hand, the general remedies — those that are not special and statutory — appear to be those which arose at common law and which inherently are part of our judicial procedure. See Montesano L. Co. v. Portland Iron Wks.,
22, 23. Just as in the case of general and inferior jurisdiction, the fact that a statute prescribes certain procedures is not determinative of the nature of the remedy. Often statutes merely codify common law procedure, with some changes, and such codification does not result in the remedy becoming a special, statutory remedy. 1 Sutherland, Statutory Construction, 525, § 2043; 50 Am Jur 595, Statutes § 598. The distinction lies in the effect of the statute in the creation and existence of the remedy. A special, statutory remedy is one which, but for the statute, would *335
not exist and which arises out of, and is fully dependent upon, the statute. Northcut v. Lemery,
Certain remedies are recognized as arising out of the common law and as such being inherent, customary rights obtainable from secular courts.
"* * * In this sense the common law is the lex non scripta, that is, the unwritten law, which cannot now be traced back to any positive text; but is composed of customs, and usages, and maxims, *336 deriving their authority from immemorial practice, and the recognitions of courts of justice. "* * * it is the law of liberty, and the watchful and inflexible guardian of private property and public rights." Story, Misc. Writings, 505-6 (Boston 1852).
Other remedies do not arise out of the common law and are not inherent, customary remedies of our secular society. For these remedies to exist, statutes must first create the remedy and then assign it to a secular court. Because there is no inherent, customary right to the special, statutory remedy in our secular society, the court to which the remedy is assigned can only exercise such remedy to the extent that the statute created it and conferred it on the court. Because it cannot go beyond the creation of the statute, because it has no inherent power to exercise the remedy, the court is special, limited, and inferior. Thus, divorce and adoption, for instance, are special, statutory remedies, not because statutes merely regulate or codify them, but because they would not exist in our secular courts except for the statutes creating them. On the other hand, if a court is empowered to administer an inherent, customary, secular remedy, one known to the common law, then it is a court of general jurisdiction because its jurisdiction is not limited to the exact relief created by a statute but rather it is assigned a jurisdiction to administer an inherent remedy and has jurisdiction to the extent that secular society has customarily recognized a remedy to exist.
24. Other courts which have held the tax remedy to be special and statutory have founded such holding upon the rule that constitutional due process does not require that the administrative determinations be *337
subject to judicial review. 4 Cooley, Taxation, §§ 1612, 1618. This constitutional principle has been recognized lately in Oregon in the tax field. Inland Nav. Co. v. Chambers,
This constitutional due process rationale could not, and should not, be applied in Oregon for a number of reasons. First, since its enactment, the Oregon Constitution, not once but twice, and as part of the bill of rights and in the finance article, has required uniformity in taxation under the present provisions amended in 1917 and both equality and uniformity under the original provisions. Oregon Constitution, Art I, § 32, Art IX, § 1. These sections, without statutory pronouncements, are sufficient authority for the judicial correction of even the ordinary errors in tax assessment continuously recognized since early in our judicial history. O. W. M. Sav. Bk. v. Jordan,
Thus, while there is a seeming universality to the holding of the tax remedy in this country to be special and statutory, such determination is based upon two theories. One theory is that there is a lack of constitutional necessity for such remedy under the due process clause. This theory is inapplicable in Oregon under our constitutional provisions, as well as generally falsely premised for the result it is supposed to support. The second theory is that the judicial tax remedy has no common law background, is actually a premise of the first theory, and is the one adopted in Oregon because of our constitutional requirements as to taxation.
Having determined that in Oregon the nature of a *339 remedy, whether general on the one hand, or special and statutory on the other, is determined by whether or not it was known to the common law and the basis for that distinction, the next inquiry must be whether or not the remedy, and in turn the court, provided by the Oregon Tax Court Act, are a remedy and a court known to the common law.
The common law was received into Oregon at the initiation of our civil government. At Champoeg, on July 5, 1843, the residents of this territory, in Article III, Section 12, of their original Organic Law, provided that "where no provision of said statutes [laws of Iowa Territory] applies the principles of common law and equity shall govern." Duniway and Riggs, The Oregon Archives 1841-1843, LX Oregon *340 Historical Quarterly 211, 260 (1959). A year later, on June 27, 1844, the Legislative Committee of the Provisional Government enacted a statute making applicable here "the common law of England and principles of equity not modified by the statutes of Ioway [sic] or of this government and not incompatible with its principles."11 Document 1207, Prov. and Terr. Government Papers. Again the next year, under the amended Organic Law which the Provisional Government adopted that year, the new House of Representatives, on August 12, 1845, re-adopted the laws of Iowa Territory as enacted at Iowa's first, territorial, legislative assembly, to the extent applicable to the conditions in Oregon and as modified by the Oregon provisional statutes, and in a separate section provided:
"* * * That the Common Law of England shall in all cases govern where no Statute Law has been *341 made or adopted." Oregon Acts and Laws Passed by the House of Representatives At a Meeting Held in Oregon City August, 1845, p 16.12
The congressional act creating the Oregon Territory, enacted on August 14, 1848, adopted the provisional laws. Deady,Organic and Other General Laws of Oregon 1843-1872, 60. Thereafter, the original state constitution re-adopted the territorial laws, thereby bringing the "Common Law of England" into our state law from the provisional law. Art XVIII, § 7; ReWater Rights of Hood River,
To say that we have in Oregon the common law of England, except as modified by the laws of the first legislative assembly of the Iowa Territory to the extent that the latter were applicable to the Oregon conditions and as modified by Oregon provisional, territorial, and state statutes, is sufficiently vague to demand interpretation. Our frontier legislators who adopted this English common law for us had only the vaguest understanding of what they had adopted.13 They knew that under English law they had certain rights and privileges, particularly trial by jury and habeas corpus.14 They intended to retain all these *342 rights in this new country, to the extent that they became applicable to their circumstances. In some measure they intended to modify them by statute but, to the extent that they did not modify them, they wanted them retained as they were, as part of their American heritage.15 In all this they had only the vaguest realization of the extent of those rights and privileges, both substantive and procedural.
Thus, a fixed and inclusive legislative intent at the time of the actual, initial reception of the common law in 1843, in all probability, did not exist.16 Most likely the legislative intent in receiving the common law is well expressed in the broad language found in the contemporaneous letter of Jessie Applegate to J. W. Nesmith, the second elected judge of the Provisional Government Supreme Court, written on July 20, 1845,17 in which he expressed his motivation as follows:
"I hold the doctrine to be beyond controversy *343 that an independent and enlightened judiciary is the greatest safeguard to the liberties of the people. * * *" [Emphasis the author's]
By adopting the same common law which was the educational background of those likely to form that "independent and enlightened judiciary," the frontiersmen of Oregon were merely handing their familiar tools to this judiciary and expecting them to know how to use them for the desired result. The task of defining and enunciating the substance of that law so briefly described in its enactment was intended to fall to the courts, and this task has been undertaken by our Supreme Court in a number of opinions, leading among them being Peery v.Fletcher,
26. Briefly, these cases hold that the Oregon settlers brought the common law with them as a birth right. UnitedStates F. G. Co. v. Bramwell, supra. They adopted it as part of their laws, but it was only useful to the extent that it suited the conditions of their new home. Re Water Rights ofHood River, supra. Therefore, they limited the common law to that part which was suited to their conditions "and in harmony with the genius, spirit and objectives of American institutions." Peery v. Fletcher, supra. By the "Common Law of England" the settlers meant
" '* * * that general system of law which prevails in England, and in most of the United States by derivation from England, as distinguished from the Roman or civil law system.' " United States F. G. Co. v. Bramwell, supra (108 Or. 266 -67).
Despite the inclusion of "equity" in the laws of 1843 and 1844 followed by their excission in the act of 1845, *344 the "Common Law of England" is held to include the "principles of equity." United States F. G. Co. v. Bramwell, supra.
In Peery v. Fletcher, supra, this adopted common law has been held to embrace the English statutes modifying the common law enacted up to the time of the American Revolution. The usual date is July 4, 1776, the formal Declaration of Independence. In that case, Mr. Justice BEAN justified the selection of this date rather than an earlier one upon the very logical grounds that, since this state had no political existence until 1843, there was no reason for going behind 1776, as had been done by some of the eastern states.
The Oregon opinions are not clear as to the extent of the common law received in this state. Though a number of cases limit the reception to that part of the common law applicable to the conditions in Oregon at the time of its adoption, other decisions modify this rule in fact by adopting from time to time common law principles which would have been wholly inappropriate in the scattered habitations of 1843 but which were appropriate at the time of their actual reception by the court. Knox v. Abrams,
All the Oregon decisions read together indicate that the common law of England as of 1776 underlies all our law, to be called upon as needed. It could be likened to the Columbia River flowing along our border. In 1843 the great river and its tributaries were scarcely called upon for more than the watering of man and animal. As our society grew and became more complex, we appropriated more and more of it for irrigation, power, and industrial uses. So with *345 the common law. It was there to be used as needed. In 1843, only its barest essentials were required for the log cabin frontier, but, as time has passed, more and more of it has become applicable to our conditions and has been adapted by the courts and the legislature for our use. Sometimes they have modified it, sometimes they merely have codified it, sometimes they have altered it, all as our needs and the growing complexity of our society has dictated. Such a view of our common law reception as adopting it at the beginning of our government to form a continuing, underlying foundation for our law seems consonant with both the general purpose of the frontier legislators and the actual usage made of the common law by our courts. In the context of this case, this common law reception means that the legislature may invoke in support of its intent, purpose, and objectives of 1961, not merely the common law applicable to the frontier community of 1843, but the entire common law of 1776 in its full maturity to the extent that it is applicable to the conditions of 1961 in Oregon.
Hence, our inquiry into the common law does not seek the existence of a procedure which was identical or substantially identical to that now provided by the Oregon Tax Court Act, but rather it seeks the existence at common law in a common law court of an independent, judicial remedy which afforded the injured taxpayer substantially the same, basic relief now obtainable in the Oregon Tax Court. If there was such a remedy, then the remedy of the Oregon Tax Court Act is in the course of the common law. If it is in the course of the common law, then, this court is a court exercising a common law jurisdiction, its remedy is not a special, statutory remedy, and by earlier definition this court is a court of general jurisdiction, not a special, limited, and inferior court.
In that opinion, Mr. Justice ROSSMAN finds that the manifest legislative undertaking to provide a complete code of laws on a particular phase of human conduct is some evidence of the legislative intent to abrogate the common law. But fromState v. One Ford Automobile,
In Knox v. Abrams,
In the tax field, as pointed out in Strawn v. Commission, *348 supra (
From 1907 onward, tax review procedure was covered by statutes, but, as discussed in the Strawn case, there was no apparent legislative intent to contract tax review. On the contrary, the legislature each time sought to broaden it. These statutory amendments of the common law did not abrogate it perse. 1 Sutherland, Statutory Construction 525, § 2043 (3d ed 1943). Such legislative, procedural alteration of a remedy "known to the common law" alone, without a clear intent to repeal the remedy itself, does not constitute abrogation. Nowhere in the procedural tax statutes has such legislative intent appeared expressly or by such clear implication as to warrant that conclusion. The only time that the repeal of a remedy can be found is when the legislature clearly seeks to deny the people the basic remedy which the common law afforded. See Southern Pacific Co. v. Heltzel, supra. If such intent could be gleaned from nothing more than the amendment of procedure, then all Oregon remedies would be purely statutory. When, as in the field of taxation, the legislature merely supplants the common law procedure with a statutory one arriving at substantially the same remedial result, the common law is only in abeyance and then only to the extent that the statutory procedure actually takes its place. Knox v. Abrams,supra. *349
The closest the prior tax statutes have come to abrogation are the provisions making the statutory remedies exclusive or those directing them to be summary in manner. These features alone do not warrant the conclusion of abrogation. Particularly is this true in light of the peculiar nature of tax litigation and of the problems of taxation itself. First, each tax is different and, as the administrative procedure for its collection varies, so, too, must the procedural steps for judicial review. This was as true under Henry II as it is today. Secondly, the legislative purpose in enactment of these limitations on review appears generally to be more associated with the intent to speed the collection than to inhibit or constrict the citizens' right to judicial review. The fact that for a purpose other than common law repeal a particular remedy is prescribed as exclusive does not abrogate the common law.
Thirdly, as noted briefly earlier, the courts long have recognized many inherent rights to judicial relief beyond the procedures expressly described and made exclusive by statute. For example, equity has never relinquished its powers to right a tax wrong regardless of these exclusive statutes. Dant Russell, Inc. v. Pierce, supra, and other cases above cited. The extraordinary remedy of mandamus has been used in CentralPacific Railroad v. Gage, supra; State ex rel Galloway v.Watson, supra; State ex rel v. Melville, supra. Even the procedure of declaratory judgment has been permitted. Redfieldv. Fisher, supra. With the common law in our sense including the provisional remedies and equity (United States F. G. Co.v. Bramwell, supra), it is clear that it has not been wholly abrogated in the tax field. Rather it has been amended from time to time, and to the extent of their *350 applicability those amendments have superceded comparable, common law remedies, if any.
29. Finally, to the extent that the common law remedy may have been changed or partially abrogated by prior statute, it has been reinstated when that statute has been repealed. ORS
30. The Oregon Tax Court Act does not purport to abrogate the common law. ORS
31. Since the common law has not been abrogated by the Oregon Tax Court Act and the common law determines both the nature of the remedy and jurisdiction, we now must turn to that law for guidance. To this point we have found that the legislative intent in enacting this tax court act, as shown by the act as a whole, by its legislative history, and by its specific provisions, was to create a court of general jurisdiction. We have found that the legislature determines the general or inferior nature of a court not by precatory statements but by the remedies which it assigns to the court. We have found that a court of general jurisdiction is one empowered to invoke the common law remedies, not one exercising only special, statutory remedies. Heretofore, the circuit court has exercised general remedies in taxation as a court of general jurisdiction but has been an inferior court when invoking the statutory remedies because the latter remedies were held to be special and statutory. We have found that unlike the circuit courts this court would not have express general jurisdiction, if its remedies are found to be special and statutory. Special statutory remedies are defined as those unknown to the common law. The common law as received in Oregon is all that common law of 1776 from time to time appropriate, and when we say that a remedy is known to common law, we refer to the remedy as a whole and not the various details of procedure. Finally, we have concluded that the present tax law does not abrogate any common law remedy, though it does modify it. We now turn to study the common law of England of 1776 because, if in England in 1776 there was a remedy at common law in a common law court *352 which provided relief to a taxpayer when he was unjustly taxed by permitting the court to modify or reverse the assessment of the taxing official or, if the tax was just, to affirm the assessment, then, the comparable remedy in the Oregon Tax Court is not a special, statutory remedy but is one known to the common law. If there was a common law court exercising this remedy, then, the Oregon Tax Court is its successor and as such a court of general jurisdiction. If from the common law such a general remedy can be discerned and such a common law heritage of this court be established, making its remedy general and this court one of general jurisdiction, then, though other interpretations are feasible, such interpretation is reasonable and we are admonished to apply it as a reasonable intendment in order to accomplish the apparent legislative purpose, intent, and objectives in the creation of this court.
33. That heretofore in decisions under prior acts the remedies in taxation have been held to be special, statutory remedies unknown to the common law, that *353 tax tribunals have been deemed limited and inferior, and that the obvious common law heritage of our courts sitting in tax cases has been passed over, can be attributed to three factors. The first factor, discussed at length in Strawn v. Commission,supra, was the limited court review permitted by the courts under the prior acts. The reasons for those limitations and the change which has occurred in the tax climate of Oregon culminating in the Oregon Tax Court Act are fully considered in the Strawn case. It suffices here to rely upon that decision to reach the conclusion that, under the Oregon Tax Court Act, the legislature intended to establish in this court the broadest relief reasonably to be available in tax questions and that the legal, statutory, and administrative conditions have so changed as to make such relief in a court of general jurisdiction practical and effective. Unlike the review under prior statutes, the present proceedings are not limited to a few questions and to a review of jurisdiction but are in general form the plenary, de novo, common law remedies long available in the Exchequer.
34. The second factor which led to the passing over of the common law heritage in tax and adjudications was the concept of special, statutory review developed under the federal system long before the present need for more than cursory, state adjudication had developed. In Oregon, the early state tax cases were neither frequent nor important to the bar and the courts generally. Strawn v. Commission, supra.18 The same situation prevailed in other states. It was not *354 until the federal system of taxation and its adjudication process had grown to full size and matured that any serious consideration was given to the late-blooming burden of state taxes. In the meantime the contraction of judicial review of what was called in the Strawn case the second period, 1917 to 1953, had occurred.
Because of the nature of federal law, this federal system, already firmly established by the time the states became deeply involved in tax litigation, had to be based upon concepts inapplicable to state law and state courts. There is no federal common law. Erie R. R. Co. v. Tompkins,
But there is a very fundamental distinction between state and federal courts. The residual judicial power, the common law power, rests in the state court system. *355
A state, general, trial court has the common law remedies and is a court of general jurisdiction capable of exercising those remedies inherently. On the other hand, the federal courts, in this sense, are of special or limited jurisdiction and must turn to a statute for all their powers, rendering their remedies wholly statutory. Chicot Co. Drainage Dist. v. BaxterState Bank,
This distinction is all the more important in Oregon because, unlike the federal remedy, the tax remedy adopted by the legislature in the Oregon Tax Court Act was clearly a judicial remedy to be exercised by a court expressly part of the judiciary, rather than an administrative remedy to be exercised by a board of the executive branch. In this respect, the Oregon Tax Court is unique among state and federal tax tribunals. As noted earlier, at the time of its adoption of this remedy, the legislature expressly rejected a court or board of the type provided by the U.S. Tax Court statutes. This legislative choice is entitled to considerable weight in the consideration of this court's jurisdiction. It and our residual, common law heritage distinguish this court and its remedy from the federal remedies and belie any transfer to this court of the federal concept that tax remedies are special and statutory.
35. The third factor which has prompted the treatment of tax remedies as special and statutory and of tax courts as special, limited, and inferior in jurisdiction *356 has been a basic misunderstanding of the position of the Court of Exchequer in the common law system, a misunderstanding which time and considerable, recent scholarship gradually are clearing away.
In our situation, it may not be unjust to trace this misunderstanding back to Blackstone. In his Commentaries on theLaws of England, he said concerning the Exchequer:
"The court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas also: * * *. It is a very ancient court of record, set up by William the Conqueror as a part of the aula regia, though regulated and reduced to its present order by King Edward I; and intended principally to order the revenues of the crown, and to recover the king's debts and duties."19
The understanding of the Exchequer as an inferior court, for which the learned knight offered no citation of authority, and which he appears to contradict in the next sentence by showing it to be a court of record,19 now appears to be clearly incorrect. His misunderstanding can be traced to three logical bases: First, the influence of Coke, secondly, Blackstone's preoccupation with the private law applicable in his own Court of Common Pleas in which he was a judge, and, thirdly, a tendency of 17th and 18th century authors to project their own circumstances backward historically as immutable. As Dean Pound noted, Coke, upon whom Blackstone relied, had an aversion *357 to the courts of equity.20 The Exchequer had an equity side and Coke's aversion for equity may well have carried through to Blackstone's treatment of the Exchequer. In addition, Blackstone obviously was concentrating on the law of the general, private person with which he dealt as a judge of Common Pleas. As is so frequent in the treatment of the Exchequer's revenue jurisdiction by nontax lawyers, he dismissed this jurisdiction as clear and not of sufficient interest for discourse.
Thirdly, that the Court of Exchequer was an inferior court, as Blackstone has described it, has been noted by recent scholarship as an example of the projection of the conditions of his day as immutable.
"We turn to some of the later authorities [those of the 17th and 18th centuries] and find at once a theory of the competence of this Court, based on contemporary practice, stated almost as if it had been held for gospel from the beginning of time. It is a common criticism of the lawyers of the seventeenth and eighteenth centuries that they evolve a theory from the settled practice of their own day and father it upon a time when there was little theory and less settled practice, but a great deal of active evolution: * * *.
"* * * * *
"Blackstone is fuller and more historical, though he is not altogether immune from the criticism already mentioned. * * *."21
This and other recent studies do not support an inferior status for the Court of Exchequer but rather place it as a co-equal member of the three, great, common law courts. It is true that the stature of the respective common law courts varied from time to time *358 depending upon the caliber of the judges. While this affected their public esteem, it did not affect their legal status as common law courts of general jurisdiction. Because the comments of Blackstone have colored our thinking to some extent, a brief review of the genesis, status, and remedies of the Exchequer, with special reference to more recent authorities and the actual records of antiquity appears appropriate. From this review it will be seen (1) that the Exchequer had the same common law origin and status as the other common law courts, (2) that its judges and judgments were co-equal with those of the other common law courts, (3) that its remedies in revenue cases were the common law in this field and were basically the same remedies as are available in this court, and (4) that the Exchequer retained its common law supremacy in revenue cases until long after 1776, while acquiring a common plea jurisdiction in addition.
As to the origin of the court, it will be recalled that our courts of common law, including equity, find their origins in the early Norman monarchs and the *359 aula regia or curia regis. In Anglo-Saxon times, though the king dispensed justice personally from time to time, the judicial system was essentially a local system, a district by district conglomeration of local and customary law dispensed by courts of varying and often vague jurisdictions.22 After the Battle of Hastings in 1066, a gradual change took place. The Norman and Angevin kings, faced with the problem of controlling the conquered country, seized upon the administration of justice as a means of binding the populace to them, particularly the more influential people. During the 12th and 13th centuries, from William I to Henry III, the royal courts of justice gradually took precedence over the older, local courts to the benefit of both the king and the subject.23 The king gained by concentrating more control in his hands and the subject benefited by having available a better, more complete brand of justice.24
At first, and for a long time in major cases involving those who held their feudatories directly from him, the king sat in personal judgment, aided by his council, the curia regis.25 Because of the burden this placed upon the royal person and because crown business often required his being in Normandy or elsewhere, the king's presence soon was taken by a substitute, the justiciar.26 Gradually, the King's Court, known *360 as the court coram rege, as distinguished from the great council, became a smaller, separate body composed of "the great officers of the household, the justiciar, chancellor, treasurer, and barons of the exchequer, with such of his clerks as the king might summon."27 The king could summon all his liege lords to his council, but as a practical matter this became unnecessary in the transaction of the general, court business. Instead, the court coram rege sat with the king presiding, or in his absence the justiciar.28
"As it is not a kingdom without subjects, so he is not a King without revenues."29 From the very beginning of Norman rule the functions of its treasury, the Thesaurius, is known.30 More important, and possibly an integral part of the Conqueror's original government,31 was the revenue office, the Exchequer, so named for the chequered cloth or table used there to aid in the counting of receipts.32 *361
At the outset the Exchequer was a part of the curia regis, as was the court coram rege.33 With some slight change in personnel, if any,34 it handled the business of revenues, accounting for the king's lands and income and deciding who owed the king how much, at what time, and why. These questions involved issues of tax law and general law, and from the beginning the Exchequer was engaged in deciding essentially legal cases involving the royal revenue.35
The justiciar began his decline with the elevation of William Longchamp, Bishop of Ely, to the chancellorship in 1189,36 and coinciding with the decline of the justiciar occurred the separation of the court system in England. Potter in his recent work states that the Exchequer was the first court to separate from the curia regis, and bases his conclusion on the Dialogusde Scaccario37 of Richard Fitz Neal, Bishop of London, written about 1178-79, at the end of Henry II's reign, pointing out that by this time the cursus scaccarii had become a defined and recognized procedure.38 Other writers find it difficult to position the Common Pleas and the Exchequer in the chronological order of their *362 separation from the curia39 and generally conclude that the first third of the thirteenth century saw the emergence of both the Common Pleas and the Exchequer from the same parent and at substantially the same time.40
37. Some of the difficulty in discerning the rise of the Exchequer as a court lies in its nature as an administrative, as well as a judicial, department, a problem unknown to the other common law courts.41 Neither Glanvill nor Bracton recognized it as a court of law,42 though by Bracton's time the Exchequer records show that it was, in fact, hearing pleas connected with its own business and that of its officials.43 The undifferentiated state of English courts in their day makes understandable their failure to identify the Exchequer as a separate court. Soon thereafter in Fleta and then in Britton the Court of the Exchequer is described as a court which the king directed "to hear and determine all causes relating to our debts and seignories and things incident thereto * * *."44 The confusion between the administrative and judicial functions continued until the clear separation of the Exchequer of Receipt, the administrative and fiscal department, from the Exchequer of Pleas, the law court.
A second cause of confusion lies in the poor differentiation of the separateness of the various courts on the early plea rolls. In addition, writers have given diverse meanings to the term "ad Scaccarium," Coke among others apparently interpreting it as a place of *363 meeting.45 Undoubtedly, other courts met in the Exchequer at Westminster, as it apparently was commodius for the purpose.46 Because frequently the personnel of the courts was the same or similar in this period, it is difficult from the first glance at the various rolls to tell which court is meeting.47
Gradually, as the thirteenth century passed, the separate nature of the three common law courts became clearer, though their jurisdictions overlapped as they grew. During this early period the Exchequer developed so much business as a court of nonrevenue, civil causes that Edward I took action at the end of the century to protect his revenue collection from the delay being caused by the heavy, civil docket. In 1300, with the Statute of Rhuddlan, he effectively limited the jurisdiction of the Exchequer to issues touching the revenue,48 though various, civil cases, especially those of merchants, found their way to this court by special, royal grace.49
38. Thus, by the early 14th century the three common law courts were established and operating in their respective spheres as relatively equal, separate entities fathered by the same parent.50 The Court of Common *364 Pleas, stationary at Westminster pursuant to the Magna Carta, had jurisdiction generally of cases between subjects.51 The Court of the King's Bench, which was the last to acquire separate status, had jurisdiction over matters touching the king's peace.52 The Court of the Exchequer was the court of the king's revenue and prerogatives.53 These are the three great courts of common law, which sprang from custom,54 and in which, together with the Court of Chancery, our law is deemed to have originated and developed. When we say that we have received the "Common Law of England," we mean, as pointed out in the foregoing quotation from United States F. G. Co. v. Bramwell, supra, the system of law and procedure developed in these courts and of which these courts were a part.
The Court of Exchequer diminished somewhat in social standing in the 14th and 15th centuries, as the professional bar grew and created its status symbols. This decline in status among lawyers resulted from the Statute of Rhuddlan in 1300 restricting the Exchequer to revenue cases and from the presence among the barons of laymen and men who were not serjeants at law.61 During the 15th and 16th centuries the law barons became more and more concerned and specialized in legal matters62 and this concentration of the law barons on legal matters shifted the administrative and fiscal concerns of the Exchequer to the *366 Cursitor Baron, a position created in 1323.63 Finally, in 1579 the Queen required that all law barons be appointed from the serjeants.64 This resulted in the nonlegal Exchequer concerns becoming the concern of the Cursitor Barons completely. Thereafter the law barons and the other judges were legally and socially equal and the barons went on circuit as judges of assize.65
In the Exchequer of Pleas we find a court in which the procedure was somewhat different from that of its two common law fellows. Because originally the chancellor sat in the Exchequer and it later developed its *368 own chancellor,73 the Exchequer proceeded by equity as well as by law.74 Potter describes it as the precursor of equity.75 As it grew from a committee of the curia, to an administrative and judicial department, to a separate common law court, to a court with civil jurisdiction, and finally contracted again to a court of revenue, the Court of the Exchequer developed thecursus scaccarii, which in revenue cases blended both equitable and legal remedies.76 The processes of the common law and equity courts grew up together so that it is not surprising that in the Exchequer, with both law barons and its own chancellor, thecursus scaccarii partook of both common pleas and chancery procedure. Furthermore, it is only natural that, where the King's revenue is concerned, there would be available to him the full powers of all the courts. As the revenue laws changed, the procedures for judicial review changed with them, but the common law course of the court continued.
The cursus scaccarii proceeded by both writs and the less formal bills.77 In revenue cases the procedure sometimes contemplated a jury78 but more often the *369 case was tried before the barons alone. The barons sometimes rode circuit throughout the country79 but more regularly held court at Westminster. Though the nature of the controversy varied, the ultimate determination was that the subject was, or was not, indebted to the sovereign.80 The assessment had been made before the suit81 and the subject sought its reduction or elimination, or the sheriff or other collector who had been charged with its collection,82 sought to excuse it or be relieved of the burden. The subject of the suit or action was the liability for tax. The controversy arose over the law, or the facts, or a combination of both. There was a usual form83 for the general proceeding, but, in aid of this form of action, the court had the powers of equity. For instance, it was here that the English bill of information arose.84
42. An analysis of the revenue proceedings in the Exchequer of Pleas discloses a close similarity to the proceedings before the Oregon Tax Court. The subject of controversy, the general procedure, and the relief afforded are all found in substance in this court's proceeding. While the details of the bills and writs, and certainly the taxes themselves, are not identical, Oregon Tax Court proceedings bear the same similarity to those of the Exchequer that the present day common law actions and suits in circuit court bear to the actions and suits at common law in the other courts of 18th century England. *370
"The King's Bench and Exchequer had properly no jurisdiction over purely civil cases, which were the province of the Common Pleas. But when these two courts became stationary in London, they commenced to poach on the well-stocked preserve — 'boni indicis est ampliare iurisdictionem' and virtue was suitably rewarded by court fees."
The civil — nonrevenue — side of the Exchequer prospered because of its simple procedure and rapid process.89 Actually, of all the common law courts, the Exchequer was perhaps the closest procedurally to the American courts of today. It had the additional advantage of being also a court of equity.90 The general equity jurisdiction of the Exchequer was later *371 regulated91 and was finally abolished in 1842, when all civil equity jurisdiction was transferred to chancery.92
Until the Judicature Acts of the 19th and 20th centuries combined the British trial judiciary into a single, high court,95 the Court of Exchequer exercised its revenue jurisdiction unhampered.96 The consolidation *372 of equity power in Chancery in 1842 did not destroy the Exchequer's equity powers in revenue cases.97 Thus, until long after the American Revolution, the Exchequer of Pleas, sitting in revenue cases and exercising common law remedies which blended both law and equity procedures, was an integral part of that English common law system which, in 1843, was adopted as the foundation of Oregon law. United States F. G. Co. v.Bramwell, supra.
The early legal procedure in England's American colonies was a mixture of the local law of the English *373 manorial courts,98 the courts baron and leet,99 was in places interlaced with various, religious concepts,100 and often depended in a particular colony for the amount, if any, of its common law background upon the nature of the colony as a crown colony rather than a proprietorship.101 Even in the crown colonies, the common law was modified and administered in a single court system.102 As the colonies matured, the influence of the common law expanded, but it never quite achieved domination of the pre-revolutionary law in America. "Throughout the colonial period it remained *374 a subsidiary, supplemental law, rivaling and in many specific matters ousting local institutions, and regarded sometimes with veneration and at others with suspicion and hostility."103
The reception of the common law supremely in the United States had to await nationhood, and then had to survive the post-war bitterness against English institutions, overcome the Jacobin influences seeking the reception of French civil law, and attain realization through the great burst of American legal scholarship which, in the early years of our nation, was a part of our struggle for a coherent, national society.104 Thus, *375 although the colonial law was the background against which the reception of English common law occurred, the common law which we received in Oregon was not the direct descendant of the law invoked on the rock at Plymouth or at the mouth of the James River, but instead was the mature common law of mercantile England, which Marshall, Story, and others had expounded and were explaining and expanding as the first settlers broke into the valley of the Columbia.
That the common law heritage of this court and the elemental nature of its remedies as a part or our common law heritage falls strangely on the ears of those who before have not had the occasion to consider the genesis and problems of an independent, state tax court is not unlikely. It is not a part of the American, *376 legal thought to maintain the distinctions between the common law courts and their remedies. Instead, we have lumped them all, including equity, in a single court, often (but not in Oregon) failing to distinguish even between law and equity.
Now Oregon has departed from the single court concept in the field of taxation. By the Oregon Tax Court Act, the legislature has established a new and separate tax court. It has assigned to this court independent, de novo, judicial remedies in which the citizen who claims to be over-assessed can litigate the issue of his liability and, if so entitled, have his assessment reduced or set aside. In substance, these remedies are those of the English common law Court of the Exchequer, and were known to the common law. Unlike the statutory, federal, judicial system, the Oregon courts are inheritors of the common law and Oregon courts which exercise a remedy known to the common law are courts of general jurisdiction. The legislature intended that this court be a court of a general jurisdiction exercising all the remedies heretofore vested in the circuit courts in taxation. That it so intended is evident from the act itself, from the various provisions of the act, from the scope of the remedies in this court, from the background of this court in Oregon legislative and judicial history, and from the fact that the legislature, with a clear choice before it, rejected an administrative tribunal with limited jurisdiction for this court with a broad, plenary, de novo jurisdiction as a regular part of the judiciary of the state. Since to hold otherwise would result in a constriction of the taxpayer's remedy, contrary to the clear, legislative intent, our history, logic, and the law clearly requires a finding that the remedy in this court is not a special, statutory remedy but is a remedy *377 known to the common law as modified, but not abrogated, by statute and that this court is a court of general jurisdiction, the successor in Oregon of the ancient, common law Court of Exchequer.
47. In so finding, this court is not unaware that the remedy of mandamus was a remedy of the King's Bench, and not of the Exchequer. Kendall v. The United States, 12 Pet 524,
48. Thus, the jurisdictional question is resolved. From the Oregon Tax Court as a whole, from its legislative history, from the clear-cut choice of an independent, plenary court hearing its cases de novo over a limited administrative board restricted to a *378
few specific remedies and merely reviewing the record of an administrative agency, and from the various provisions of the act, we have found that the clear legislative intent, purpose, and objective in the act was to create an expert, plenary, judicial court vested with broad, remedial powers to hearde novo all cases, statutory and nonstatutory, including those in mandamus, in the field of income, property, and forest taxation, thereby relieving the circuit court of any burden in this field. We have found that to accomplish this result, the legislature had to create this court as a court of general jurisdiction, rather than as a special, limited, and inferior one, because the latter would have only those remedies expressly created by statute and because all nonstatutory remedies then would be either abrogated or left vested in the circuit court, contrary to the legislative intent. We have found that a court of general jurisdiction is one which exercises common law remedies and that to create this court as one of general jurisdiction the legislature must assign to it common law remedies. Heretofore, the judicial remedies in taxation have been deemed special and statutory and unknown to the common law. We have found that, to imply common law remedies to a court having expressly only special, statutory remedies is improper. Turning then to the common law, we have discovered that, contrary to the general assumption, the plenary judicial remedy of the citizen against the sovereign in taxation was a common law remedy in England in the common law Court of Exchequer at and before 1776. We have found that the common law remedy in taxation was part of the "Common Law of England" of 1776 adopted in Oregon in 1843 and that it has lain dormant as part of our fundamental law to become now available in support of the legislative purpose *379
of this act. We have found that because the tax remedy was a common law remedy, the legislative assignment of that remedy, modified by statute as have been all common law remedies, to the Oregon Tax Court can be relied upon to make this court a court exercising remedies in the course of the common law and, therefore, a court of general jurisdiction in the field of income, property, and forest taxation, which carries out the clear legislative intent, purpose, and objective of the Oregon Tax Court Act. As such a court of general jurisdiction, this court has the power to exercise the common law remedies not only of the cursus scaccarii but also those of the other common law courts because the distinction between the forms of actions and the common law courts has been abolished in Oregon. Among those powers is the power to issue the writ of mandamus. Faced as this court is here with a case within its competence in income, property, and forest tax law but for which no plain, speedy, and adequate remedy is provided by the statutory procedures, this court is empowered as a court of general jurisdiction to act under ORS
Having determined in the affirmative the first two, major issues set forth above, that mandamus will lie and that this court, being a court of general jurisdiction, exercises the remedies in taxation known to the common law, including the provisional remedy of mandamus, there alone remains the third major question of whether, on the facts of this case, the writ should issue. *380
"ANNUAL TAX LEVY FOR STREET LIGHTS Purpose: To authorize annual street light tax levy, beginning fiscal year 1962-63, and not exceeding four mills per dollar of taxable property in the City of Woodburn.
"Question: Shall the Woodburn City Charter be amended as provided in Ordinance No. 1052 to accomplish the above purpose?"
No other question is raised as to the election or the levy and all other proper procedures appear to have been followed.
"310.400 Any proposed tax levy, whether a continuing fixed levy, continuing levy, or levy for a single year, submitted to a vote of the people by the state, any county, municipality, district or body to which the power to levy a tax has been delegated *381 shall be stated in dollars and cents in the measure to be voted upon, and not otherwise, notwithstanding any provision of any other statute of this state to the contrary, and where not inconsistent with or otherwise provided for in the Constitution of this state." [Emphasis supplied.]
The plaintiff contends that ORS
"Section 2. Corporations may be formed under general laws, but shall not be created by the Legislative Assembly by special laws. The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon, and the exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon." [Emphasis supplied.]
49. The issue presented by this contention has been determined to a great extent in State ex rel Heinig v.Milwaukie,
The opinion goes on to point out that "uniformity in itself is no virtue" and is not alone sufficient ground for legislative pre-emption. The paramount issue in each case is whether the subject matter of the statute is of state or local concern. Since some activities sought to be regulated by state law cannot be classified within one or the other category of concern, but partake of both, with one or the other predominating, the predominant characteristic is determinative.
In the end, however, the determination of which interest or concern is paramount must be made on the facts of each case.
"* * * Each case requires a weighing of the state's interest against the interest of the municipality. In some instances the need for uniformity, or the benefit of a widespread application of the law, or the recognition that the matter dealt with is interrelated with other functions of the state and similar considerations will require that the statute have preference over the charter; on the other hand the charter will prevail when the advantages of local autonomy are paramount."231 Or. 488 .
In the Heinig case, one criterion used was whether the effect of the city activity extended beyond the city limits. Involved was a state law requiring civil service for firemen. Though the firemen acted outside the city occasionally, the court held the state law invalid. It recognized that standardization of hose couplings might be a state concern so that Milwaukie hoses could be used in Portland or Canby in an emergency, but it held that firemen's uniforms and their employment and discharge were of local concern.
50. Applying here the rules so recently announced by our Supreme Court, it is clear that a failure to set *383
forth the levy in dollars and cents, if it adversely affects anyone, so affects only the residents of Woodburn. Only these residents had the right to vote. Only they had the burden of paying the tax. Certainly, persons outside Woodburn had no more concern with this ballot than did the people outside Milwaukie with the civil service of Milwaukie's firemen. Thus, the content of the ballot had only local concern and ORS
51. The only case which limits or confines the ruling inState ex rel Heinig v. Milwaukie, supra, is the very recent case of Boyle v. City of Bend,
In a footnote (footnote 6 on page 98), the court in theBoyle case sought to limit the application of the Heinig case to the situation in which the state statute conflicted with an ordinance. That is the case here. The Woodburn Common Council passed an ordinance authorizing and directing the ballot measure to be presented in mills rather than dollars and cents. ORS
In the Boyle case, the court expressly recognizes a municipal tax levy as being of local character and concern. (
"ELECTIONS — LAWS GOVERNING. All the laws of this state regulating and governing general elections and proceedings and matters incidental or relating thereto or connected therewith shall apply to and govern elections under this charter, * * *."
and this language raises the question of whether ORS
ORS
Since this provision appears in the charter rather than in an ordinance, we are not concerned with a problem of improper delegation of a legislative function. By Article XI, section 2, of the Oregon Constitution, the home rule power was conferred by the people upon the people living in incorporated municipalities, and, clearly, under the Woodburn charter, the people of Woodburn can transfer back some of that power to the people of the state to be exercised through the legislature. Here the people of Woodburn did transfer back the right to control their election procedure, raising the question of whether ORS
It is argued by the city that only the laws compiled under ORS Title 23, Elections, governing general elections are intended to be adopted by Chapter II, section 3, of the charter. Obviously, only the general election laws are adopted, as opposed to the entire title, because the primary election laws pertain to partisan, nominating elections and are not applicable to cities; but, since the elections to which ORS
The city's position is supported by the general concept of a charter as the grant of power by the people in the nature of a constitution and the rule that such grants are to be strictly construed. Richards v. Portland,
"* * * this court, in accord with the general rule, has held that such powers only are conferred as are clearly comprehended within the words of the act, or are included therein by necessary implication, and that any fair, reasonable doubt as to the existence of the power will be resolved against the municipality [Citations omitted.]."
This latter case involved the assessment of local improvements and noted that these proceedings are in invitum, warranting strict construction. It is closely related to the instant case.
The foregoing cases deal with the legislative power conferred by the people through the charter upon the *387 city council. In the instant case, we have the analogous situation of the people conferring by charter a legislative power upon another body, the state legislature. If the power of the elected city council must be express and is strictly construed, it would appear that an even stricter construction should be placed upon the grant of legislative power to a body which the people who are taxed do not elect and which is beyond the vote or recall of those people.
53. Turning to the language of the charter, the state laws that are adopted are those "regulating and governing general elections and proceedings and matters incidental or related thereto or connected therewith." It is indeed a close question as to whether the charter language includes all laws applicable to all matters which may be voted upon at a general election or merely includes either those laws specifically applicable to general elections, as opposed to primary and special elections, or those laws generally applicable to the mechanics of general elections and the proceedings and matters which lead up to and follow the actual balloting. If the former broader interpretation is proper, then ORS
As noted before, the question here involved is a close one. In the case of a purported grant of power to the city council, the cases deny the existence of the power where there is a fair and reasonable doubt. Fisher v. City of Astoria, supra. Where, as here, there is no control over the legislative power by the people to be taxed, it is held above that even a stricter rule appears justified. There is a doubt as to the grant of the power back to the state legislature. The doubt is based upon two reasonable and conflicting interpretations. A doubt so based would appear to be "fair" and "reasonable." The conflicting interpretations, in any event, do not make the grant of authority "clearly expressed." Therefore, the doubt must be resolved against the grant and ORS
54. This court finds that the Woodburn charter does not adopt ORS
Based upon the law and facts herein presented, the decision of this court is that the alternative writ *389 shall be made peremptory. An appropriate judgment and writ shall be presented as in the case of a decree under rule 32 of this court.**8224
Dear Mr. Appling
I am filing herewith House Bill No. 23, unsigned and unapproved.
House Bill No. 23 creates a separate Board of Tax Appeals without altering the responsibilities or organization of the State Tax Commission.
I find the bill objectionable because it creates an agency without a legislative appropriation to cover its necessary expenditures.
For these reasons, I veto House Bill No. 23.
Sincerely yours,
Mark O. Hatfield
On June 12, 1738, the Attorney General and Solicitor informed the Lords of Plantations and Colonies that the king had the prerogative of establishing a Court of Exchequer and appointing a Chief Baron in South Carolina. Chalmers, Opinions of EminentLawyers on Various Points of English Jurisprudence ChieflyConcerning the Colonies, Fisheries and Commerce, 484 (Burlington, Goodrich, 1858). Reference is made to a Court of Exchequer in Barbados. Riddell, Notes on the Pre-RevolutionaryJudiciary in English Colonies, 11 Can B Rev 317-324, 376-384, 324.
"After the opinion in this case was written but before it was released, the Supreme Court handed down the opinion inBoyle v. City of Bend, 76 Adv Sh 535 (1963), which this court considered but upon which it did not think comment was necessary. Upon more mature reflection, it appears that this recent case should have been mentioned and distinguished in this decision. Therefore, this court, on its own motion, adds to this decision the following three-paragraph addendum, which in the printed opinion will be added after the second paragraph of page 74 of the original opinion (first paragraph of page 342 of the Advance Sheets.)"
