Elmore Packing Co. v. Tillamook County, 105 P. 898

Elmore Packing Co. v. Tillamook County

105 P. 898 | Or. | 1909

Mr. Justice Eakin

delivered the opinion of the court.

1. There is but one question involved upon this appeal, and that is: Does the petition for the writ state facts sufficient to authorize its issuance? The petition must-contain such a statement of facts that, if taken as true, will disclose prima facie that the lower court has acted without jurisdiction or has exercised its functions erroneously: Section 596 B. & C. Comp.; Southern Oregon Co. v. Coos Co., 30 Or. 250 (47 Pac. 852) ; Fisher v. Union County, 43 Or. 223 (72 Pac. 797) ; Holmes v. Cole, 51 Or. 483 (94 Pac. 964.)

2. If the cause is brought within this rule by the petition, then the writ will lie, notwithstanding there is also a remedy by appeal under Section 8 of the act of 1907 (Laws 1907, p. 451), relating to the duties of the board of equalization: Section 597, B. & C. Comp.; McAnish v. Grant, 44 Or. 57 (74 Pac. 396.)

3. But the only facts disclosed by this petition upon which error of the board is predicated are, first, that the machinery, which is assessed at a valuation of $5,700, is worth no more than $3,000; and, second, that the *222plaintiff did not on the 1st day of March own the 5,000 cases of salmon. As to the valuation of the machinery, it is alleged that plaintiff’s application to the board is supported by the affidavit of its secretary, and no evidence was presented by the board as to its value, and therefore the statements in the application should be accepted as undisputed facts. However, the assessor’s valuation is prima facie sufficient evidence of the value of the property, both as against the county and the petitioner, and must be considered in weighing the effects of the plaintiff’s affidavit: Oregon Coal Co. v. Coos Bay, 30 Or. 308 (47 Pac. 851.)

4. Independent of the statements in the application, the question of value is purely one of fact, which the writ will not bring to the reviewing court: Smith v. City of Portland, 25 Or. 297 (35 Pac. 665) ; Oregon Coal Co. v. Coos Bay, 30 Or. 308 (47 Pac. 850.)

5. As stated in Garnsey v. County Court, 33 Or. 206 (54 Pac. 539, 1089), the writ of review will only lie in two classes of cases: First, whenever the inferior court or tribunal has exceeded its jurisdiction; and, second, whenever it has exercised its judicial function erroneously— that is, illegally and contrary to the course of procedure applicable to the matter oefore it. If the inferior court has jurisdiction of the matter brought before it and proceeds in the manner provided by law, its errors cannot be reviewed by this writ.

.6. As to the salmon, the petition alleges that the assessor wrongfully assessed to the plaintiff 5,000 cases of salmon, valued at $8,000, which plaintiff did not own. Section 3046, B. & C. Comp., as amended in 1907 (Laws 1907, p. 488, §11), provides that personal property in one’s possession as trustee shall be assessed to the person in possession of it. Also Section 3047, B. & C. Comp., provides that goods, wares, and merchandise kept for sale in this State shall be taxable to the owner thereof or to the *223person or corporation who shall have charge of or be in possession of them. Therefore the salmon might have been assessable to plaintiff, even though plaintiff did not own the same. If the salmon was in plaintiff’s Nestucca cannery, it was assessable to plaintiff, although it belonged to some other corporation or person. And the petition is insufficient as, in stating what took place before the board of equalization, it must appear, not only that the salmon did not belong to plaintiff, but that it was not in plaintiff’s charge or possession.

7. The petition for the writ must be construed most strongly against the pleader, and it impliedly admits that the salmon on March 1, 1907, was in the possession of plaintiff.

8. A recital in the petition of independent facts cannot aid the record sought to be reviewed. It must show the facts presented by the record from which the error appears. Therefore it does not appear from the petition that the salmon was improperly assessed to plaintiff, nor that the board exercised its functions erroneously in denying the plaintiff’s application to cancel the assessment of the salmon to it.

9. It is contended by plaintiff that, even if it did own the salmon, the same should not have been assessed to it in Tillamook County, but in the county of its residence. This question does not appear to have been presented to the board of equalization, and, if not, it cannot be raised upon review.

10. But under Section 3047, B. & C. Comp., goods, wares, and merchandise kept for sale in this State shall be taxable in the county where the same shall be either to the owner thereof or to the person or corporation who shall have charge of or be in possession of the same, and it does not appear that the salmon was not assessable in Tillamook County within the provision of that section. The motion to quash the writ was properly allowed. The .judgment is affirmed. Affirmed.