M & M Woodworking Co. v. State Tax Commission

PER CURIAM.

The appellants, State Tax Commissioners (hereinafter called the Commission), have applied for a stay, pending the appeal, of a decree of the circuit court reducing the personal property taxes of the respondent for the fiscal years 1951-52, 1952-53 and 1953-54. The personal property in question is located in Multnomah County. The decree ordered a refund of taxes paid by the respondent on such property for the years named in excess of amounts found by the circuit court to be correct and ordered “that all officers having possession of the assessment and tax rolls for said years correct said rolls in accordance with this Judgment.” The Commission’s motion is in two parts: First, that this court enjoin and restrain “the Sheriff and Tax Collector of Multnomah County, as the officer in possession of the assessment and tax rolls for 1951-52,1952-53 and 1953-54 from changing or altering such rolls in accordance with the judgment of the lower court”; second, enjoining and restraining “any county assessor, county sheriff and tax collector, county board of equalization and any state agency, board or commission, from changing or ordering a change or alteration in an assessment roll or tax roll of a county, prepared as of January 1, 1957, or any subsequent year, where the change or alteration is for the purpose of allowing a reduction in the assessed valuation of any personal property for a so called ‘inflation factor’, except for such reductions as are provided by rules and regulations promulgated by the State Tax Commission and in force on the January 1 assessment date.”

It is not questioned that the statutes governing appeals in general contain no provisions for a supersedeas in a proceeding like this where the Commission is the appellant.

Respondent has no objection to the first prayer. It cites ORS 306.560 which reads, in part: “No proceeding for levying and collection of taxes on any property shall be stayed by reason of the taldng or pend-ency of any appeal from or review of any order of the State Tax Commission or of the order of the reviewing circuit court,” and ORS 306.575, which reads:

“The decision of the circuit court shall be binding on all parties until changed, if at all, by the decision of the Supreme Court. Upon the final determination in the matter, all officers having charge of the rolls on which the assessments involved in such proceeding appear shall correct the same in accordance with such determination, and taxes shall he refunded or additional taxes collected by the proper officers. If no appeal is perfected to the Supreme Court, the decision of the circuit court shall constitute a final determination of the matter.”

It construes these provisions as granting an automatic stay of any change in the tax roll until final determination of the appeal. The respondent’s brief says “that the intent and tenor of the above two statutes is such as to provide for the stay which the Commission seeks.” It objects, however, to this court issuing a stay on the grounds: First, that it would serve no purpose, and, second, and primarily, because as it is asserted, such an order may be construed by some taxing authorities as an indication that the Supreme Court disapproves of the judgment and does not wish it to be followed for subsequent years. The Commission replies that it has no objection to the adoption of the suggested construction of the statute, “but submits that a ruling is in order.”

We deem it inexpedient to announce now a definitive construction of ORS 306.560 and 306.575. Of necessity, neither counsel nor the court have had time to give adequate consideration to the question whether these sections have the effect suggested by the respondent. That question is not free from doubt, and it would be undesirable for less than a majority of the court (which is now in vacation) to pass upon it.

The important question on the merits is whether an assessment of inventory property which denied any reduction in its value for a so-called “inflation factor” was lawful under § 110-335 OCLA (now ORS 308.205) as it read prior to amendment by Oregon Laws 1953, ch 701 § 2 and Oregon Laws 1955, eh 691 § 1. This statute was construed with reference to the assessment of real property in Appeal of Kliks, 158 Or 669, 690, 76 P2d 974, and the construction there adopted was held by the circuit court in the ease at bar to be equally applicable to the assessment of personal property. This the Commission contests. In passing upon the present application, however, we indicate no opinion whatever concerning the merits. While it is true that, in some instances, courts may have been influenced by their view of the probable outcome of an appeal in deciding questions of this character, our sole concern here is whether, in view of the interests involved, we should exercise our power to preserve the status quo pending the appeal. See Blair v. Blair, 199 Or 273, 287, 247 P2d 883, 260 P2d 960.

Upon a consideration of the respective rights of the parties and the public convenience, we have concluded that the Commission’s first prayer should be granted. The Sheriff and Tax Collector of Multnomah County is now in possession of the assessment and tax rolls for the years in question, and while he is not named as a party to this litigation, he has been ordered by the circuit court to change the rolls in accordance with the judgment which that court entered. Enforcement of that order will be stayed pending the appeal.

But we have no authority to allow the Commission’s second prayer. By it we are asked to control the conduct of taxing officials, county and state, who are not parties to this proceeding and over whom we have no jurisdiction. Neither the constitutional provision requiring uniform rules of assessment and taxation (Oregon Constitution, Art 9, § 1) nor the various statutes which confer on the Commission broad supervisory powers over county equalization boards, assessors and tax collectors (See State ex rel Smith v. Smith, 197 Or 96, 252 P2d 550), relied on by the Commission, can be interpreted to invest this court with jurisdiction over persons who are not parties to a particular litigation or subject matter not included within the pleadings in a case. Article 9, § 1 of the Constitution is a mandate to the legislature and the statutes cited define the powers of the Commission, not the courts. The Commission must determine for itself how it shall exercise its delegated powers with reference to taxpayers and taxing officials not involved in this law suit but who may be affected by its outcome. The second prayer will be denied.

Theodore W. de Looze, Salem, for the motion. Alfred H. Stoloff and Phillips, Coughlin, Buell & Phillips, Portland, contra.

An order will be entered in conformity with the foregoing opinion.

Before Lusk, Brand and Warner, Justices.

PER CURIAM.

The appellants, State Tax Commissioners, have applied for an order, pending the appeal, of a decree of the circuit court reducing the personal property taxes of the respondent for the fiscal years 1951-52, 1952-53 and 1953-54.

The question is identical with that this day decided upon a similar application in M and M Wood Working Company, a corporation, v. State Tax Commission.

The order will be the same as that announced in that case.