244 P. 540 | Or. | 1926
For defendant there was a brief over the names of Mr. Frank P.Leinenweber, District Attorney, and Messrs. Norblad Hesse, with an oral argument by Mr. Frank C. Hesse. This is an application for a writ of mandamus, by which it is sought to compel Harley J. Slusher, as sheriff of Clatsop County, Oregon, to perform his duty as provided by Section 25, Chapter 316, General Laws of Oregon, 1925. On December 15, 1925, the State Tax Commission, by Walter M. Pierce, Governor, Sam A. Kozer, Secretary of State, Thos. B. Kay, State Treasurer, and Earl L. Fisher, Commissioner, issued to the defendant herein a number of warrants for the collection of income taxes, which he refused to execute. To the alternative writ issued out of this court, the defendant has filed his demurrer, on the ground that the writ fails to state facts sufficient to constitute a cause of action.
In the consideration of this cause, we keep in mind the important and admitted fact that the defendant has failed and refused to perform his official duties in the matter of the collection of the revenue of the state, and the further fact that it is the duty of the court, in determining whether the writ shall issue, to take into consideration the interest of the general public: 38 C.J. 550.
"Revenues of the state assessed and in process of collection are to be considered as constructively in the treasury, and may be appropriated and treated as though actually there." 36 Cyc. 887. *501
This doctrine is announced in the early case of State v.McCauley,
The McCauley case has been cited with approval many times: SeePeople v. Pacheco,
We must concede it to be a fundamental principle thatmandamus will not lie where there is a plain, speedy and adequate remedy in the ordinary course of law: Section 613, Or. L. However, such remedy, to prevent the execution of the writ, must be "adequate" to afford the relief to which the relator is entitled. Moreover, the writ may issue even where other remedies exist, if they are not sufficiently speedy to prevent material injury: 2 Bailey on Habeas Corpus, "Mandamus," 830. In complete accord with the foregoing is the following concise statement by Mr. Ferris in his recent text-book on Extraordinary Legal Remedies, page 247:
"The other remedy, to supersede mandamus, must be competent to afford relief upon the very subject-matter of the application, and be equally convenient, beneficial, and effective."
There is much authority to the effect that it is the inadequacy, not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that generally determines the propriety of the issuance of a writ of mandamus:
See Robertson v. Board of Library Trustees, etc.,
405 (
Every proceeding in mandamus must be determined upon its own setting of facts. The right to compel a tax collector to proceed to collect the public revenue rests upon the public requirement for a certain and speedy remedy. In State ex rel.Coe v. Fyler,
To the same effect is Smyth v. Titcomb,
In the case of State ex rel. Gaines v. Whitworth, 8 Lea (76 Tenn.), 594, it was held that a mandamus is an appropriate remedy to compel the collectors of public revenue to proceed and perform their duties, "For, unless there was some summary process to compel the performance of these duties, the public treasury would become embarrassed, and great public mischief might ensue: Moses on Mandamus, 139."
Judge Cooley, in his work on Taxation, likewise announces the doctrine that mandamus will lie to compel a tax collector to proceed in its collection, even though there would be other remedies against him: 4 Cooley, Taxation (4 ed.), § 1606. In view of this authority, there ought not to be much question concerning the power of the court to issue its writ compelling the sheriff to perform his duty.
2 Spelling, Injunctions and Other Extraordinary Remedies, Section 1517, in discussing the subject of the enforcement of duties of municipal officers pertaining to taxation, points tomandamus as "the proper remedy to compel the collection of taxes and assessments by officers entrusted with these duties," and adds the further statement that "the court interferes to set such officers in motion."
To like effect, see High's Extraordinary Legal Remedies (3 ed.), § 143; 38 C.J. 782, § 431.
To the effect that a tax collector may be compelled bymandamus to collect a tax which has been duly levied, see 18 R.C.L., § 213, "Mandamus." In support of the text, the editors cite Davies v. *504 Corbin,
The defendant relies upon the case of Habersham v. Sears,
It is a matter of common knowledge that the legislative power of the state has enacted laws carrying appropriations, which require the prompt collection by the various agencies of the state and the subdivisions thereof of all of the state's revenue. The commonwealth of Oregon is not required to collect its public revenue by suing an unwilling sheriff upon his bond. The state has a right to invoke a speedy remedy. It has a right to demand that a sheriff obey the law and execute lawful warrants. In the case at bar, the State Tax Commission, one of the state's agencies for the collection of public revenue, has exercised its right by coming into this court for the purpose of obtaining a direction to another lawful agency to perform a statutory duty. Efficient government *505 demands the proper functioning of the various agencies of the state and its subdivisions.
The demurrer is overruled.
DEMURRER OVERRULED.
McBRIDE, C.J., and BEAN and BELT, JJ., concur.