Strawn v. State Tax Commission

Decision denying motion and petition rendered April 6, 1962. These two cases arise out of a single assessment by the Assessor of Coos County of certain railroad rolling stock of Coos Bay Timber Co.¹ in Coos County, Oregon. This equipment, all personal property, was assessed by the Coos County Assessor as having a true cash value of $997,514. From this assessment the Coos Bay Timber Co. appealed to the State Tax Commission, which by its opinion and order No. VL 61-322, dated December 15, 1961, reduced said assessment to $662,664. Before the Board of Equalization and the State Tax Commission, Coos Bay Timber Co. contended for a true cash value of $440,810.

On February 9, 1962, Messrs. Strawn and Flanagan, in their official capacities and represented by John M. Eaton, District Attorney for Coos County, filed in this court their complaint in Strawn et al v. State Tax Commission (herein called the Strawn case), seeking review of the Tax Commission's order No. VL 61-322 and the restoration of the valuation originally placed upon the personal property by the assessor.

On February 13, 1962, Coos Bay Timber Co. filed a complaint in a separate case entitled "Coos Bay Timber Co. v.Commissioners of the State Tax Commission" (sometimes called herein the "Coos Bay case") seeking like review of the same Tax Commission order, but seeking reduction of the value to the amount originally contended by Coos Bay Timber Co. Together with the complaint, John B. Crowell, Jr., attorney for Coos Bay Timber Co., addressed a covering letter to the court in which he said, in part:

"* * * We are doubtful, however, about our right as a matter of practice and procedure to join what would amount to a cross-complaint against the Tax Commission with our intervenor's complaint by way of answer to the Coos County complaint. Thus, in order to be certain of preserving our rights to seek a lower valuation in addition to resisting the efforts of Coos County to restore the original valuation we have initiated this proceeding, anticipating that some basis for joining or consolidating the two can eventually be worked out by the various parties at the court."

At no time in these proceedings did the State Tax Commission, as defendant in both cases, serve or file any pleadings, although the file contains a letter from the commission indicating a willingness that the matter proceed to trial.

On March 12, 1962, District Attorney Eaton moved in the Strawn case for an order dismissing the complaint with prejudice and without costs. Before filing this motion the district attorney consulted the sheriff and assessor. They were not adverse to dismissal but did not want to dismiss at this time. By his own statements, Mr. Eaton filed his motion without his clients' consent and for his own purposes. To quote the record:

MR. EATON: "* * * After conferences with Mr. Strawn and Mr. Flanagan, neither of whom seemed to oppose — they felt that I was their attorney, that I was the one that was trained in the law, that I was the one by law who was required to represent them — they neither one seemed to oppose my idea that the case should not come to trial in this court, but they both felt that for political reasons that perhaps we shouldn't file the motion to dismiss at the exact time that I did. Because of some rather unfortunate remarks that the County Commissioner made over television I felt required to be on television in answer to some of his statements about me and I thought that I couldn't ethically discuss this case so long as it were pending in the court and I therefore moved to dismiss the case in order — at that time — in order to be free to dismiss the case before a television audience. At that time neither Mr. Strawn nor Mr. Flanagan had specifically authorized me to file such a motion — as I say they had indicated they were not unwilling to dismiss, but they didn't want to do it right at that point for political reasons." (Transcript of preliminary hearing, Strawn, et al v. State Tax Commission, held on 30 March 1962, 10 a.m., Coos County, Oregon.)

The district attorney's motion to dismiss apparently created quite a stir in Coos County. Thereafter, on March 19, 1962, Charles O. Porter, as attorney for G. M. Carroll and 153 others, alleged to be residents and taxpayers in Coos County, filed a petition to intervene in the Strawn case, attaching thereto a complaint in which they seek the review of this court of the State Tax Commission's order and the increase of the valuation to $900,000.

Earlier on the same day, March 19, 1962, Coos Bay Timber Co., in its case against the Tax Commission, filed its conditional motion to dismiss its case with prejudice and without costs, conditioned upon the dismissal of the Strawn case.

On March 23, 1962, Coos Bay Timber Co. tendered to the court in the Strawn case its petition to intervene and attached thereto its "Intervener Defendant's Cross-Complaint for Refund of 1960-61 Personal Property Taxes" and also, its "Intervener Defendant's Complaint by Way of Answer." At the direction of the judge, the clerk of this court ignored the petition to intervene of Coos Bay Timber Co. and filed these two strangely entitled documents.

With the record in this confused state of pleadings, the court set for hearing in Coos County the two motions to dismiss and the petition of the taxpayer group to intervene, and it is upon these matters that hearing was had and this preliminary decision is written.

The issues before the court are as follows:

a. When the District Attorney of Coos County filed his motion to dismiss on March 12, 1962, did he have an absolute right to the dismissal of his case or is such dismissal discretionary with the court?

b. If discretionary, should the court grant the District Attorney's motion to dismiss?

c. Is the taxpayers group a proper intervener in the Strawn case?

d. When Coos Bay Timber Company filed its motion to dismiss on March 19, 1962, did it have an absolute right to the order of dismissal?

1. Generally, a plaintiff has an absolute right to withdraw his case, unless a counter-claim has been pleaded as a defense. ORS 18.210; Goin v. Chute, 126 Or. 466, 260 P. 998, 270 P. 492 (1928); Chance v. Carter, 81 Or. 229, 158 P. 947 (1916); Curriev. Southern Pacific Co., 23 Or. 400, 31 P. 964 (1893). This statute and these cases are based on the reasoning that the burden of the case is on the plaintiff and that, because of this burden, he should have the right to guide the pleadings and to withdraw temporarily, if the conditions under which the case is to be tried are particularly disadvantageous. As pointed out by Mr. Justice ROSSMAN in Goin v. Chute, supra, in quoting from Reed v. Rocap, 9 N.J. Law, 349:

" 'The principle on which this permission to withdraw is founded, is that the procedure on the part of the plaintiff is his own, instituted for his own benefit; that in abandoning it he affects or abridges the right of no other person; and as he must pay costs to his adversary, he is thereby deemed, in legal contemplation, to make him indemnity for calling him into court; so long then as he can exercise control over the proceedings without interfering with the established rights of another, he is permitted to do so. But whenever such proceedings have occurred, or the suit has so far advanced that any right of the adverse party has been legally established, or may be abridged by a relinquishment of further proceedings, the power of the plaintiff has ceased.' "

Unquestionably, then, it is the law in Oregon, as expounded in the above cited cases, that a private plaintiff has an absolute right to dismiss his suit in equity when no counter-claim has been filed by the defendant and when the decree does not bar another suit for the same cause, or any part thereof. But this rule does not apply to the instant case for four sound reasons.

2. First, these cases and our statute clearly contemplate a dismissal without prejudice and provide that the judgment or decree "shall not have the effect to bar another suit for the same cause, or any part thereof." ORS 18.210. In the instant case, the effect of the desired order to dismiss "with prejudice" would be to terminate and to bar another suit for the same cause. This is true initially because the statutory time within which an appeal could be taken had run at the time of the filing of the plaintiff's motion, and this statutory time is jurisdictional. Secondly, the motion as presented to this court sought dismissal with prejudice.

3, 4. Secondly, the Strawn case is not the usual proceeding brought by a private plaintiff, but is an appeal brought not by the taxpayer, but by public officials, being the first of its kind under a newly enacted statute. The plaintiffs, in moving to dismiss, were not giving up a right which was theirs alone and individually, but were moving to forever terminate the rights of the people of Coos County to further consideration of a fairly substantial tax liability of one of its residents. Where the rights of the public become involved in a procedural matter, such as this motion to dismiss, the court has a greater duty to be certain that the public rights are best served by the allowance of a motion of this nature. Guinther v.Milwaukee, 217 Wis. 334, 258 N.W. 865 (1935). Because of this duty, this motion to dismiss should not be treated as being based upon an absolute right to dismissal, but rather upon the discretion of the court soundly exercised.

Thirdly, even if the general rule requiring dismissal were applied to this case, the "unless" provision of the statute remains. The question of whether or not a counter-claim was on file at the time the motion to dismiss was filed returns us to the extremely confused state of the pleadings in these two cases.

5. Both cases, dealing as they do with an identical situation, confer upon the court jurisdiction to determine the true cash value of the personal property in question in the tax year 1960. In form, they are two separate cases, but in substance, they appear to be a single, indissoluble controversy. ORS 306.545(3) gives to the taxpayer who owns the property in question the right to appear and be heard in an appeal taken from the State Tax Commission in which the taxpayer-owner is not the appealing party. In addition, subsection (1) of that section requires that the petition be served upon such taxpayer-owner. Thus, by virtue of the required service upon it and the absolute, not discretionary, right to appear and be heard, Coos Bay Timber Co. is a party to the Strawn case. Neither by statute nor by court rule is the taxpayer required to file written pleadings. No limitation is placed upon the nature of its evidence. In the end result, it is the function of the court to find the true cash value of the property in question. Without responsive pleadings and without filing a separate case, the taxpayer-owner, though not the appealing party, could introduce evidence of a true cash value substantially less than the amount found by the State Tax Commission, and if this evidence were found by the court compelling, the court could find the value to be less than the amount determined by the commission. In other words, the statute created an inchoate counter-claim on the part of the taxpayer-owner in this case. The taxpayer did not have to plead the counter-claim as to value to create it, and by dismissing the suit the court would be denying to the taxpayer its statutory right to have heard its inchoate counter-claim on the issue of value.

6. In addition, referring back to the first reason for discretionary power, the dismissal with prejudice not only would constitute a bar to any further proceeding by the plaintiffs, but would be a bar, under the doctrine of resjudicata, to any proceeding by the taxpayer-owner, including the Coos Bay case already on file. This is because the only issue is one of value, there can be only one true cash value, and the statute, by requiring service and providing the right to appear and be heard, makes the timber company a party in the Strawn case. By making the taxpayer a party, the doctrine of res judicata is invoked as to all issues which were, or could have been, raised between the parties in this cause.

Fourthly, and again on the issue of the existence of the counter-claim, it is obvious from the record that the timber company was in doubt as to the proper procedure but that it sought to present to this court its contention as to value. By filing a separate suit, it confused the record, though in all probability it placed the court upon further notice of its contention as to the value of the personal property, of which the court already had notice from the Strawn complaint and the exhibits attached to it. The subsequent petition to intervene, filed by the timber company, which the court ignored, was yet a further attempt to establish its rights to counter-claim.

7. There was no need for the taxpayer-owner in this case to petition to intervene. The applicable statute, ORS 306.545(3), states:

"(3) In any case in which the taxpayer is not the appealing party, he shall have the right to appear and be heard. The Oregon Tax Court, in its discretion, may permit other interested persons to intervene by filing a petition in such manner and under such conditions as the court may deem appropriate."

Clearly, this statute makes absolute and not subject to the discretion of the court this right of the timber company to appear and be heard. Since the court had no discretion, there could be no need for any petition to the court's discretion. The intervention petition would be appropriate only with respect to persons who are not parties plaintiff, not the State Tax Commission, and not the taxpayer-owner. The proper, though perhaps not the only, procedure by which the timber company could assert its contention as to value was not to file a separate suit and not to petition to intervene, but rather was to file an answer denying the appropriate allegations of the plaintiffs' complaint and setting forth a counter-claim alleging affirmatively the valuation contentions of the taxpayer. This procedure of filing an answer and counter-claim would appear to be preferable, though actually, without any pleading, the statute entitles the taxpayer-owner to rely upon its right to appear and be heard.

Instead, the timber company filed a separate suit. Obviously, if the Strawn case is heard first, this separate suit has no effect, the determination in the Strawn case being res judicata in the Coos Bay case and terminating the litigation. The complaint in the Coos Bay case was subject to a plea in abatement pendente lite, had the nonresponsive State Tax Commission seen fit to file one. Of course, the statute clearly provides that "no responsive pleadings shall be required of" the State Tax Commission. The only logical effect that reasonably could be given to the complaint of Coos Bay Timber Company was that it was an improperly worded and tendered counter-claim in the Strawn case. Because this court is new and because its procedures may be somewhat obscure to the average practitioner this early in its existence, justice would appear to support the treatment of the complaint as, in fact, a counter-claim.

Therefore, because the motion sought dismissal with prejudice, because its effect would be to bar another suit for the same cause, because the sheriff's and assessor's appeal was not an ordinary proceeding but was one as to which the court had a duty to be certain that the public rights were best served by the allowance of the motion, because without any pleadings the defendant had the right to pursue what amounts to a counter-claim arising out of its right to appear and be heard, and because, by a liberal construction of the faulty pleadings in this case, the separate suit of the taxpayer-owner might be deemed in effect a counter-claim, the general rule establishing an absolute right to withdraw its case does not apply to the plaintiffs' motion to dismiss in this case and the allowance of the motion is within the sound discretion of the court.

8. Turning to the second issue, as to how the court should exercise its discretion, we must consider first the factual situation. From the clear admissions of the district attorney, it is established that he filed the motion to dismiss with prejudice contrary to the directions of his clients. The district attorney contends that he had the right to control the proceeding just as he would have the right to control a criminal proceeding and that its prosecution is discretionary with him. However, this is not the ordinary criminal proceeding. In the criminal proceeding, he, as district attorney, alone has the power and duty to initiate the prosecution and is the only public officer representing the people. Thus, with the power to initiate, the law has vested in him the power to terminate the prosecution. On the other hand, the legislature gave the power to initiate a tax appeal not to the district attorney but to the county assessor, board of equalization, or sheriff. ORS 306.545. Had neither the sheriff, the assessor, nor the board of equalization seen fit to file the appeal in the first instance, the district attorney would have been powerless to appeal the decision of the State Tax Commission. The concurrence, and actually the active prosecution, by one or more of the public officials named in the statute is required for the institution of their appeal. With the power to initiate vested in the sheriff, assessor, and the board of equalization, it would appear that the power to terminate must be vested in them also and that the district attorney would have no power upon his own motion without their consent to file the motion to dismiss.

In the instant case, from the unequivocal admissions of the district attorney, it appears that he did file such motion to dismiss without the consent of the sheriff or assessor, who, while they concurred in dismissal, felt that they did not wish to file such a motion at the time it was filed. The district attorney stated to the court that nonetheless he had filed the motion at this particular time and gave as his reason that he desired to be free of the responsibility of litigation so that he could answer charges made against him by the chairman of the county commission. The reason is not legally compelling.

9, 10. In justification of his actions the district attorney contends that the county, through its assessor and sheriff, had no basis in either the law or the facts for proceeding with the appeal. He interprets the decision in Roseburg Lumber Companyv. State Tax Commission, 223 Or. 294, 355 P.2d 606 (1960), as shifting the burden of proof to the county in this appeal. However, Westhouse, Inc. v. State Tax Commission, 228 Or. 167, 364 P.2d 598, (1961) is clear authority for the rule that the presumption of official rectitude attaches not to the State Tax Commission's determination, but to the original assessment by the Assessor of Coos County. Since presumptions are evidence in Oregon, there clearly is some evidence to support the finding of the assessor. This is a de novo appeal from an inferior, quasi-judicial tribunal. Those presumptions upon which the assessor was entitled to rely before the commission are not stripped from him upon appeal to this court.

In addition, this court will not assume that the assessor had no basis for his valuation in the first instance, but rather, in this de novo proceeding, would assume that some evidence exists for the original valuation and that the issue is one of the weight of the evidence. Of course, the assessor's evidence may, or may not, be sufficient to sustain the plaintiffs' case; but whether it is sufficient or not must yet be determined, and it is reasonable at this point to assume that the citizens of Coos County have some interest in this litigation and some basis for the appeal originally presented by the sheriff and the county assessor.

The purpose of this court is to hear and determine tax controversies and to consider de novo the evidence which heretofore in such cases was presented to the State Tax Commission and upon which that Commission made its ruling. There seems little ground for denying such a hearing to the people of Coos County solely upon the discretionary actions of the district attorney, unsupported by the concurrence of the sheriff and assessor, his clients, and influenced to some degree by his admitted personal preference to be rid of the litigation for reasons of personal concern. For these reasons, this court exercises its discretion to deny the motion of the plaintiffs for dismissal of the Strawn case with prejudice.

Turning to the question of intervention by the taxpayer group, the questions before the court appear to be whether or not the taxpayers are "other interested persons" so as to justify intervention and whether, under the circumstances, intervention should be permitted.

11. In this case, the interveners represent all taxpayers in Coos County by virtue of the derivative nature of their intervention proceeding, and therefore, appear to be proper parties. However, the general rule is that intervention is not permitted in proceedings brought by public officers when the interveners are those for whom the public officers are acting.Best Co. v. Omaha, 149 Neb 868, 33 N.W.2d 150 (1948). In this case the sheriff and assessor are acting for all the people of Coos County in prosecuting their appeal. To permit the interveners now to intervene would be to add additional confusion without increasing the representation of the taxpayers of Coos County.

12. The only justification found in the law for permitting such intervention exists where the public officials fail diligently to prosecute in the interest of the people of their body politic. State v. Farmer's State Bank of Decatur,103 Neb 194, 170 N.W. 901 (1919). Substantial evidence in this case shows such failure to exist already, which would justify permission to intervene.

However, the court has a duty to see that its proceedings are orderly and progress with as little confusion as possible. Furthermore, the court is not required from the action of Mr. Eaton to assume that the sheriff and assessor will not diligently prosecute their appeal and that Mr. Eaton will fail henceforth to represent the assessor and sheriff adequately, with spirit and diligence. Certainly, Mr. Eaton's remarks to the court were honest, forthright, and unequivocal and appeared to arise out of a misunderstanding of the law. Therefore, the court will not permit intervention at this time.

However, because of the apparent position taken by Mr. Eaton and in part those taken by the sheriff and assessor, this court does not see fit at this time to terminate all thought of intervention by the taxpayers as prayed in their petition. Therefore, the order will provide that the taxpayers may reinstitute their proceedings to intervene at any time by merely filing a motion to reset their petition to intervene upon the calendar of the court, and this court will expect the district attorney, the sheriff and the assessor to keep the attorney for the interveners fully informed as to the preparation and plans made for prosecution of this appeal. Furthermore, the court will permit the attorney for the interveners to join the district attorney at counsel table, to be fully apprised of the proceeding as it progresses, and otherwise to be in a position to make such motion at any time.

Turning, lastly, to the motion for dismissal filed by Coos Bay Timber Co., the record shows that, upon the rulings made by this court upon the motion to dismiss and the petition to intervene in the Strawn case, the Coos Bay Timber Co. has seen fit to withdraw its motion to dismiss its case. The court grants permission for such withdrawal. Furthermore, counsel for Coos Bay Timber Co. has asked that the Coos Bay Timber Co. case be held in abeyance pending a determination in the strawn case. This request likewise has been granted.

With the preparation of, and entry of, an order in conformity with this decision, the preliminary matters presented on March 30, 1962, are determined.

¹ In addition to the Strawn case, Coos Bay Timber Company filed suit with the intent of further reducing the Tax Commission's order. However, since the issues in both suits would be substantially identical, the Timber Company elected to hold their case in abeyance pending the outcome of the Strawn decision.