192 P. 410 | Or. | 1920
Lead Opinion
This is a motion to dismiss the appeal in the above-entitled cause upon the following grounds:
First: That the original pleadings have not been sent up, as required by Chap. 335, Laws of 1913.
Second: The appellant has not filed a transcript of the evidence heard in the trial court.
Third: The appellant has not served the printed abstract upon the attorneys for respondent, as required by Rule 6 of this court.
Fourth: That the printed abstract of record is not sufficient because it does not include a copy of the
It appears from the affidavit of the attorney for respondent that, the pleadings in the original cause in the lower court were very voluminous, the complaint and answer alone constituting more than 30 pages of typewritten matter. The printed abstract filed by the appellant is very brief, and does not give a. complete copy of any of the pleadings in the case, but only such summary as appellant seems to deem necessary for an understanding of the question which he presents. The appellant contends, however, that the abstract is sufficient to give the court jurisdiction, and asks for an order requiring the clerk of the court below to send up the original pleadings.
While the abstract is by no means satisfactory, and probably is insufficient to present some of the questions relied upon by the appellant, yet we think it is enough to clearly present to the court at least one question — the question of the constitutionality of Chap. 170, Laws of 1915, under which the tax proceeding sought to be enjoined was prosecuted.
Section 1 of Chap. 335, Laws of 1913, is as follows:
“When an appeal is perfected the original pleadings and the original bill of exceptions shall be sent by the clerk, or other proper officer of the trial court, to the clerk of the Supreme Court or appellate court, and shall be a part of the transcript in the Supreme Court or appellate court so long as it may be needed there, and if the said papers are later required for use in the trial court, said papers shall be returned to the trial court and kept of record therein, the object being to require one original record to answer the purpose in each court, and the Supreme Court or appellate court is instructed to promulgate the*619 necessary rules for the custody of the original record to accomplish this-purpose.”
And Section 554, L. O. L., as amended by Chap. 320, Laws of 1913, provides in subdivision 1:
“If the appeal is from a decree and the cause is to be tried anew on the testimony, the clerk shall attach together the testimony, depositions, and other papers on file in his office containing the evidence heard or offered on trial in the court below, and deliver the same to the appellant, taking therefor his receipt in duplicate, one of which receipts he shall file in his office and the other deliver to the respondent when so requested. Such evidence shall be deemed a part of the transcript or abstract and shall be filed therewith.”
Rule 11 adopted by this court (89 Or. 715, 173 Pac. ix), providing for the form of an abstract, is as follows :
‘ ‘ Set out all of the complaint necessary to an understanding of the questions to be presented to this court, and no more. In setting out exhibits, omit all merely formal irrelevant parts.”
And in relation to the answer:
“Here set out so much of the answer as may be necessary to explain the questions raised on the appeal, and no more, omitting all formal parts.”
“The form of a part of that record is not as required by statute, and to dismiss an appeal for nonobservance of form when the substance is supplied would be carrying the rule beyond reason, and giving effect to form rather than substance. "While vexatious appeals should be discouraged, yet the opportunity for litigants to have their issues tried in the higher courts should not be hindered by technical constructions, which too frequently lead to the subversion of justice.”
And the latter paragraph of this language is quoted and followed in an opinion by Mr. Justice Harris in State v. Rider, 78 Or. 318, 320 (145 Pac. 1056), in which the court refuses a motion to dismiss and further says:
“At least one phase of the case can be submitted on appeal without the presence of a bill of exceptions, and even though other questions discussed in the brief could not be considered without the evidence and a bill of exceptions. If plaintiff deemed the abstract imperfect or unfair, an additional abstract could have been filed, as provided by Eule 7.”
As to the service of the printed abstract upon the respondents, Eule 6 of this court (89 Or. 712, 173 Pac. viii) requires:
“Within twenty days after the transcript is filed in a civil case the appellant shall serve upon the attorney for each respondent a printed abstract, prepared as hereinafter provided, containing a copy of so much of the record, as may be necessary to a full understanding of the questions presented for decision, and within five days after service of the abstract the appellant0 shall file with the clerk of this court sixteen copies thereof, accompanied with proof of*621 such service. In case of cross-appeals, the party first giving notice of appeal shall be considered the appellant under this rule. In criminal cases, a printed abstract may be served and filed, or not, as the appellant may elect. No case shall be docketed for hearing unless this and other rules are complied with, except by order of the court.”
In this case the transcript appears by the record to have been filed in this court on the twenty-third day of July, and the printed abstract was filed on the thirteenth day of August, accompanied by the following proof of service:
“I, H. B. Nicholas, one of the attorneys for appellant, do hereby certify that on the 11th day of August, 1920, I mailed at the postoffiee in Portland, Oregon, a copy of this abstract, addressed to R. L. Conner, McMinnville, Oregon; postage thereon being fully prepaid, all in accordance with the regulations of the United States postoffice.
“H. B. Nicholas, “Attorney for Appellant.”
This transcript, in the regular course of mail, would have reached McMinnville, on the 12th of August, which would have been sufficient. Even if it reached there on the 13th it would have been sufficient under the repeated decisions of this court. The showing of the respondent as to whether he received this abstract, and as to when, if he did receive it, is equivocal, and he says in his brief:
“If same was so mailed by appellant, or his attorney, it did not reach the hands of the attorney for respondents until some time after the 20 days • had expired following the filing of the transcript, and even if it were considered that placing same in the postoffice would constitute a service thereof, it was not made within the time prescribed by Rule 6.”
“Service by mail may be made, when the person for whom the service is made, and tbe person on whom it is to be made, reside in different places, between which there is a communication by mail, adding one day to the time of service for every fifty miles of distance between the place of deposit and the place of address.”
Motion Denied. Second Motion to Dismiss Appeal Denied.
Opinion on the Merits
Affirmed January 17, 1922.
On the Merits.
(203 Pac. 593.)
Plaintiff commenced this suit against Yamhill County and W. Gr. Henderson, as sheriff thereof, to restrain the collection of a special tax assessed for the year 1918 against the real property of plaintiff located within Road District No. 38 in said county.
Road District No. 38 is composed entirely of an island in the Willamette River, known as Athey’s Island, and the tax mentioned was levied to pay the accruing interest upon and the sinking fund installment for the payment of negotiable bonds of the road district to the amount of $7,000, issued pur
On October 28, 1915, more than 10 per cent of the resident taxpayers who were legal voters in said road district, filed with the county clerk of Yamhill County a petition, as authorized by Chapter 170, Laws of 1915, and therein petitioned the County Court of said county to order an election to determine whether or not said County Court should issue bonds to the amount of $7,000 for the construction of a bridge across the Willamette Slough leading to Athey’s Island, at a point named in the petition, and levy a special tax on all the taxable property of said Road District No. 38, to pay the interest on said bonds and to provide a sinking fund to redeem the same at maturity.
Upon consideration of the aforesaid petition, the County Court on November 15, 1915, ordered an election to be held on Saturday, the eighteenth day of December, 1915, for the purposes set forth in the petition.
The order calling the election, among other things, recited the self-evident facts:
‘ ‘ That the construction of said bridge will be beneficial principally to the residents and owners of real property in said district. * * That the construction of said bridge across the said Willamette Slough is a public necessity, and if so constructed will connect said island with one of the county roads and public highways of said county.” And the order directed:
“That notice of said election shall be given by the county clerk of this county by causing them to be posted in three public places in said road district and one at the courthouse in the City of McMinnville, Yamhill County, Oregon, at least ten days prior to*624 the said election meeting herein provided for, and also publish one notice at least three weeks in the ‘News Reporter’ a newspaper published weekly at McMinnville, Oregon, and having a general circulation in said county, which said notice shall give the time, place and object of said meeting as by law provided.”
Notices of election were posted and published as directed in the order and required by the statute. The election was held as therein directed, at which the vote was unanimous in favor of issuing the bonds and levying a special tax on all the taxable property of the road district for the payment of the interest on the bonds and to provide a sinking fund to redeem the same at maturity. The chairman. and secretary elected at the meeting organized for the purpose of holding said- election, certified the result of the election to the County Clerk on November 24, 1915, and thereafter on January 5, 1916, the County Court entered an order in its journal declaring that fact and that the proceedings pertaining’ to the meeting and to the organization thereof, had for the purpose of holding said election, as well as to the election, were all legally had and fairly conducted, and the court approved, ratified and confirmed the same in all respects.
Thereafter bids for the purchase of the bonds were invited by publication in two newspapers, one in Yam-hill County and one in Portland, Oregon, as required by the statute, and pursuant thereto, the bonds were sold and issued to the highest bidder therefor. Promptly after the sale of the bonds, the bridge was built, and has since been in úse by the residents upon the island and by others having occasion to go to and from the island. The holders of the bonds are not made parties to this suit.
(1) That the act, Chapter 170, Laws of 1915, is unconstitutional and void, in that the title thereof does not express the subject of the act, as commanded by Section 20, Article IV, of the Constitution.
(2) That jurisdiction was never obtained by the road district meeting nor the court, to vote or levy the tax, because:
(a) The affidavit of posting one of the notices of the election at the courthouse states that the affiant posted the notice in the courthouse, instead of at the courthouse, and fails to state that he posted it ten days before the meeting, or when he posted it.
(b) The affidavit of J. H. Tompldns as to posting notices in the district was sworn to on December 24, six days after the meeting, and could not have been submitted at the meeting, as required by the law.
(c) The affidavit of the printer is to the effect that his paper “is of general circulation,” instead of “general circulation in the county,” as required by the law.
(3) The bonds were offered for sale by the county clerk, instead of the bonding committee and were actually sold by the county clerk and judge, instead of the bonding committee, which was composed of the County Court and clerk.
(4) The tax of 12.4 mills exceeds the maximum of 10 mills allowed by law, and the same is not uniformly levied on all the property of the county.
After hearing the cause, the Circuit Court found that all of the proceedings relative to the issuance, sale and delivery of the bonds in question were regular, and that the tax sought to be enjoined by plaintiff was regularly levied and a valid lien against all the
Affirmed.
For appellant there was a brief and oral arguments by Mr. Newton McCoy and Mr. R. B. Nichols.
For respondent there was a brief and oral argument by Mr. B. L. Conner, District Attorney.
Plaintiff’s criticism of the foregoing title is that it is more comprehensive than the act; that it purports to include all road districts in the state and implies that bonds of a road district might be issued for a variety of purposes, whereas the act by its terms embraces only those road districts that each thereof is composed entirely of an island in a navigable river, and limits the issuance of bonds to providing funds to build a bridge over either branch of the river forming such island.
If the language employed in the title of a legislative act apprises those of particular districts that legislation is proposed which may affect them, such title does not violate the requirements of Section 20, Article IY of the Constitution, because it is so general as to indicate that every portion of the State may be brought within the scope of the law: State ex rel. v. Frazier, 36 Or. 178, 184 (59 Pac. 5).
In the case last cited the contention was made that the title of the act under consideration in that case was general and intended to apply to the whole state, while in the body of the act, it was limited to the class of counties containing more than fifty thousand inhabitants, and that therefore the subject was not properly expressed in the title, because it did not indicate the limit of the operation of the act. The court overruled this contention, and in its opinion Mr. Justice Bean, speaking for the court, at page 182 of the opinion, said:
“It has been repeatedly held that the section of the Constitution here invoked is not directed against the generality or comprehensiveness of the title of legislative enactments, nor does it require that such title shall index the details thereof. If all the provisions of the law relate, directly or indirectly, to the same subject, and are not foreign to the subject expressed in the title, it will not be held unconstitutional. The object of the constitutional provision is to prevent the*628 blending of incongruous subjects in the same act, using the title as a deception, and to prevent combining subjects representing divers interests in one act in order to unite the members of the legislature who favor either in support of all. There has been a general disposition manifested in the cases cited to construe the constitution liberally, rather than to embarrass legislation by a strict construction.”
A large number of cases upon this point, and sustaining the rule announced in State ex rel. v. Frazier, is collected in a note in Ann. Cas. 1912A, 102.
The foregoing statement of the rule applies to the contention made by plaintiff in this case, and shows the same to be untenable.
The jurisdiction of a court of equity to restrain the collection of a tax cannot be invoked for mere illegality or irregularity in the proceedings,
“ * * hut its jurisdiction is confined to cases where the tax itself is not authorized by law, or is assessed on property not subject to taxation, or the persons exacting it are without authority in the premises, or
In the opinion in Staples v. Astoria, 81 Or. 99 (158 Pac. 518), Mr. Justice Bean quoted with approval the following from 9 R. O. L. 992:
“Considerable liberality is, however, allowed even in these elections, and it is a rule of pronounced authority that the particular form and manner pointed out by a statute for giving notice is not essential, provided, however, there has been a substantial compliance with statutory provisions. * * This liberal rule is based upon the theory that where the people have actually expressed themselves at the polls the courts are strongly inclined to uphold rather than to defeat the popular will. But there must be at least a substantial compliance with the statutory provisions in order that the notice may be held to be constructive.”
The statutes provides:
“Proof of posting notice of said meeting shall be made by affidavit of the party posting the same and submitted to said meeting, together with proof of publication of such notice.” And also that: “The secretary of said meeting shall keep a record of all the proceedings and due proof of posting and publishing of said notices, and shall inclose with his certificate above mentioned, to the county clerk of said county, certified copies of all proceedings, including such proof of posting notices and publication thereof.”
The statute further requires that the notice of election shall be posted in three public places in the road district, and one at the courthouse in said county at least ten days prior to the meeting, and that one such notice shall be published at least three weeks in one weekly newspaper “of general circulation in the county. ’ ’
The proof of posting the three notices in the road district made by the affidavit of J. H. Tompkins, road supervisor of the district, shows that the notices were' posted for the time and as required by the statute. The date of the notary’s jurat upon this affidavit is December 24, 1915; the election was held December 18, 1915.
It may well he that J. H. Tompkins, whom the record shows was present and voted at the meeting, did submit an affidavit of such posting at the meeting, for which the affidavit hearing the later date was substituted by the secretary of the meeting.
It is the notice, and not the proof of posting and publication thereof, that qualifies the electors to hold the election and authorize the bond issue and the levy of taxes for the payment thereof.
The notice was given for the required length of time and in strict conformity to the statute; the electors of the district in response thereto met at
The election was held and a unanimous vote given in favor of issuing the bonds and levying the tax. It does not appear that the failure, if there was one, to submit the proof of posting these notices at the meeting affected or could have affected the result in any way; at most it was a mere irregularity, and therefore it did not invalidate the election: State v. Hall, 73 Or. 231, 243 (144 Pac. 475).
10. The affidavit of the printer in furnishing proof of publication of the notice in the “News Reporter” stated that the paper “is of general circulation,” and plaintiff contends that the proof to be sufficient must have stated that the paper “is of general circulation in the county.”
In the order authorizing and calling the election, the County Court directed that the publication of the notice of election should be made in the “News Reporter” and in the order the court declared that the “News Reporter” was “a newspaper published weekly at McMinnville, Oregon, and having a general circulation in said county.” The official declaration thus made under the facts of this case supplies the absence of a recital to the same effect in the proof of publication, if indeed such a recital was essential thereto.
In the case of Gard v. Henderson, 95 Or. 520 (187 Pac. 839), proof of publication substantially in the form of that complained of here was held sufficient
In support of the first objection, plaintiff cites several Wisconsin cases, the principal one of which is Hilgers v. Quinney, 51 Wis. 62 (8 N. W. 17). That was. a case of a sale of land for delinquent taxes. The statute required the county treasurer to post notices in at least four public places in the county, one of which copies was to be posted in some conspicuous place in his office. The treasurer’s return of posting the notices recited that he published one of the notices at his office. The court held at was not the equivalent of in, and therefore the proof was insufficient.
In the later case of Allen v. Allen, 114 Wis. 615 (91 N. W. 219), a case almost identical with that of Hilgers v. Quinney, and involving the same statute, the court overruled the earlier case and said:
“Notwithstanding what was said on this subject in the Hilgers case, we do not feel that we ought to hold that this variance alone is fatal. * * It seems certain that posting ‘at’ a public place is substantially the equivalent of posting ‘in’ a public place, and we*634 therefore hold that the affidavits of posting in the present case were sufficient.”
By the weight of authority, the word “at” means “in” or “within,” and more generally means “within” than “without”: See note, Ann. Cas. 1912B, 1070.
A bulletin-board is usually provided at the courthouse of each county in the state, upon which legal notices are posted. Sometimes this bulletin-board is placed within the doors of the entrance to the building, and sometimes it is placed outside the entrance upon the porch or vestibule, immediately in front of the entrance, depending upon the season of the year or the state of the weather. Strictly speaking, notices posted upon such bulletin-board when the same stands outside the entrance door should recite that the notice was posted at the courthouse, while if such notice was posted on the bulletin-board when it stands inside the door, the proof should recite that it was posted in the courthouse. In either case, the public would get identically the same notice, and it would be immaterial whether the proof recited that the notice was posted at or in the courthouse. In view of the purpose to be served by the notice and the practice in posting such notices, the words at and in are equivalent and synonymous as used in the statute under consideration, and the affidavit is not subject to the objection under discussion.
This latter proof conforms to the recitals contained in the minutes of the election and to those contained in the order of the County Court declaring the fact of the result of the election. The weight of the evidence therefore is against plaintiff’s contention of fact, and excludes further consideration of his legal contention based thereon.
Affirmed.