81 P. 352 | Or. | 1905
delivered the opinion of the court.
Section 3084 : “The county court of each county, or the board of commissioners thereof, shall, at its term in January in each year, estimate the amount of m.oney to be raised in its county for county purposes, and apportion such amount, together with the amount of state and school tax required by law to be raised in its county, according to the valuation of the taxable property in its county for the year, and such determination shall be entered at large in its records.”
Section 3085: “For the purpose of raising revenues for county purposes the county'court or board of county commissioners for each county in the State shall, at its Janu*205 ary term in each year, levy a tax upon all taxable property in its county, which tax shall be sufficient in its amount to defray the expenses of the county.”
The plaintiff contends that by these sections it is the duty of the county court, before levying a tax, to make up an itemized estimate of the several amounts of money to be raised for county purposes, and to enter such estimate at large on its records, that such entry is jurisdictional, and a failure to make it will avoid the tax. Before levying a tax, the county court must necessarily make an estimate of the amount of money to be raised in order to determine the rate of taxation, and it is proper that such estimate should be entered of record, but we do not understand that a failure in that respect is fatal to the tax. The statute provides that after the estimate is made the county court shall apportion the amount thereof, together with the state and county taxes, according to the value of the taxable property in the county. Such determination shall be entered at large on the record, but this requirement is not jurisdictional, nor the measure of the power of the county to levy the tax. The authority to levy a tax is derived from Section 3085, and not from the one providing for the making of the estimate and apportionment and the entry of such determination in the journal. Section 3085 provides that the county court shall, at its January term in each year, levy a tax upon all the taxable property in the county, sufficient in amount to defray the expenses of the county ; and, while this levy must be based on the estimate required to be made under the previous section, its validity is not, in our opinion, dependent on the entry of the estimate in the journal.
The Louisiana cases (Waggoner v. Maumus, 112 La. 229, 36 South. 332, and Police Jury v. Bouanchand, 51 La. Ann. 860, 25 South. 653,) relied upon by the plaintiff are under a statute essentially different from ours. It requires the
It is often said that proceedings for the assessment and levy of a tax are hostile to the taxpayer, and void unless in strict compliance with the statute. In a measure, and under some circumstances, this is true, but the doctrine ought not to prevail in a proceeding such as this, because, as said by Mr. Justice Cooley: “The proceedings in the assessment of a tax are not, in any proper sense, hostile to the citizen. They are, on the other hand, proceedings necessary and indispensable to the determination of the exact share which each resident or property owner ought to take, and may and ought to be supposed desirous of taking, in meeting the public necessity for a revenue — proceedings which the willingness of the taxpayer cannot dispense with, and which only become hostile when the duty to pay, once fixed, fails to be performed by payment. Then, and then only, do the steps taken by the government assume a compulsory form. Until then the reasonable presumption is that government and taxpayer will act together in harmony, and that the latter will meet his obligation to pay as soon as the former has performed its duty in determining the share to be paid”: Cooley, Taxation, 283, note.
From these views, it follows that the decision of the court below should be affirmed, and it is so ordered.
Affirm ed.