119 P. 487 | Or. | 1911
delivered the opinion of the court.
Are the conclusions of law thus made deducible from the findings of fact? is the question to be determined. This inquiry makes a consideration of whether or not our statute permits the maintenance of an action to recover a delinquent tax levied on personal property. Attention will be attracted to the enactment governing the proceedings in such cases.
All property liable to taxation is required to be assessed to the person or corporation owning it at one o’clock A. M. on the first of March of each year. Section 3586, L. O. L. When a tax levied on personal property becomes delinquent, it is the duty of the tax collector to seize and sell, in the manner prescribed, sufficient of the taxpayer’s goods and chattels, if they can be found in the county, to satisfy the demand. If, in the opinion of the tax collector, it becomes necessary to charge the tax on personal property against real estate, in order that such tax may
The foregoing provisions aré a brief summary of the mode prescribed for the collection of the ratable portion, levied by authority of law, upon property to maintain the power of the State, and to enable it to discharge its various functions. No lien is impressed by our statute upon personal property, and if an owner thereof remove it to another county, or otherwise dispose of it before his goods and chattels are seized for the payment of delinquent taxes levied upon that class of property, and he has no real estate in the county against which such taxes can be made a lien, and no action can be maintained against him to recover the taxes, the county levying them is remediless, and he is not bearing his share of the public burden. No enactment of this State expressly authorizes the bringing of an action in such a case.
When the levying of a tax is prescribed by law, but no provision is made for collecting the burden thus imposed, it may reasonably be inferred that the legislature intended that legal remedies, available in ordinary civil actions might be invoked for enforcing the payment. So, too,
A statute formerly in force in Oregon required the sheriff, who was the tax collector, to pay the full amount of State and school taxes in gold and silver coin to the county treasurer, and ordered the latter to pay to the State Treasurer the State tax in like medium of exchange. Several owners of property, situate or held in Lane County insisting that the act of Congress of February 25, 1862 (12 U. S. Stat. 345), making United States treasury notes legal tender for all “debts,” etc., offered to pay their respective taxes with that kind of medium of exchange but, the sheriff refusing to receive it, they instituted mandamus proceedings to compel him to accept such payment, and it was held that State taxes were not “debts,” within the meaning of the federal statute relied upon: Whiteaker v. Haley, 2 Or. 128.
Thereafter the county treasurer of Lane County tendered to the State Treasurer, United States treasury notes in payment of the taxes due from that county; but, the offer having been rejected an action was instituted by the State against that county to recover, as its portion of the public burden, $5,460.96 “in gold and silver coin.” The cause having been tried, an appeal from the judgment was taken to this court, which held that a recovery could be had in the specie demanded. The opinion in that case, if any were announced, is not published in our reports. From the judgment thus rendered, a writ of error was taken to the Supreme Court of the United
“The assessment of taxes does not create a debt that can be enforced by suit, or upon which a promise to pay interest can be implied. It is a proceeding in invitum.”
The rule that a tax levied on property for the maintenance of government is not a debt has become well established. Cooley, Tax. (3 ed.) 17; 1 Desty, Tax. § 6; 27 Am. & Eng. Ency. Law (2 ed.) 580; 37 Cyc. 710.
A contrariety of judicial utterance exists regarding the right to maintain a suit or an action to recover delinquent taxes, when the statute commanding the levy prescribes the remedy to enforce the collection. Thus, notwithstanding the organic law of Louisiana of 1879, Article 210, declared that delinquent taxes should be collected “without suit” by a sale of the property on which the tax was levied, it was ruled that a valid claim against a decedent’s estate might be made by a municipal corporation for the payment of delinquent taxes; the court holding that the award was not a judgment, but the allowance of a legal demand, which was to be paid in due course of administration. Succession of Mercier, 42 La. Ann. 1135 (8 South. 732:11 L. R. A. 817). In the notes to that case, the authorities are collated, setting forth the determinations of courts in favor of and opposed to the maintenance of a suit or an action to recover delinquent taxes. See, also, the case of State v. Georgia Co., 112 N. C. 34 (17 S. E. 10: 19 L. R. A. 485).
Since a tax levied upon property is not a debt, the burden imposed by law for the support of government is not a sum of money due or owing by agreement; and
Upon principle, we conclude that, as our statute prescribes the manner of collecting delinquent taxes levied on personal property, the maxim, “Expressio uwius est exclusio alterius,” governs, making the remedy exclusive. 27 Am. & Eng. Ency. Law (2 ed.) 783; 37 Cyc. 1241. From this conclusion, it necessarily follows that after the levy of a tax on goods and chattels, and before their seizure to satisfy the demand, if the taxpayer removes to another county his personal property, or otherwise disposes of it, no action can be maintained against him for the recovery of his share of the public burden, and the county levying the tax is remediless, if he has no real estate against which such tax can be charged. Legal remedies cannot be created ex necessitate rei by courts, when no mode of procedure is prescribed by law, but relief for the correction of the evil must be sought from the lawmaking department of the State.
Believing that the conclusions of law made by the trial court were properly deducible from the findings of fact, the judgment is affirmed. Affirmed.
