Tillamook City v. Tillamook County

Mr. Justice McBride

delivered the opinion of the court.

1. The decision of this case turns primarily upon the construction to be given to sub-section 2, § 2, Article 4, of the Charter of Tillamook City (Sess. Laws 1898, pp. 551, 552). Among other powers granted the plaintiff by this section is found the following:

“To collect road tax from all property in said corporation equal to that now levied by law for road purposes, to be expended upon highways, streets and alleys within said corporation under the supervision of the common council, and the citizens and property within said corporation shall be exempt from the same taxes for county road purposes.”

*115 The charter went into effect immediately by virtue of an emergency clause thereto attached, having been filed with the Secretary of State February 13, 1893. At the time of its passage, the amount levied by general laws for county road purposes was 1% mills on the dollar. Subsequently to the passage of the act incorporating plaintiff, but at the same session of the legislature, an' act was passed permitting counties to levy a tax of 5 mills on the dollar for county road purposes; but this act did not take effect until 90 days after the adjournment of the legislature. Later an act was passed permitting a levy of 10 mills on the dollar, which act is still in force.

Plaintiff contends, first, that the words “now levied by law” should be construed so as to mean “now or hereafter levied by law”; in other words, that the intention of the legislature was to give the city the benefit of any increase that might be made in the amount of the levy by subsequent legislation. We are unable to find any authority for such an interpretation. The word “now” has a fixed and definite meaning. It signifies “.at the present time,” at a time contemporaneous with something done. Pike v. Kennedy, 15 Or. 420 ( 15 Pac. 637 ); Chapman v. Holmes’ Executors, 10 N. J. Law, 20-26; King v. Miller, 53 Or. 53 ( 97 Pac. 542 .) When used in a statute referring to other statutes, it will be construed as having reference to the statute then in force. Beard v. Smith, 22 Ky. 430 .

2. A subsequent repeal or amendment of the statute referred to will not .affect the statute in which the reference is made: Sutherland, Stat. Cons. § 257.

3. It is also suggested that the county court had no right to levy any tax for road purposes within the city limits, and in this view we concur. It has been the usual custom to exempt incorporated cities from the payment of general county road taxes, and at the session at which the charter in question was passed several municipal corporations were thus exempted, and it does not seem prob *116 able that the legislature intended to make an exception of Tillamook City. We think the words “shall be exempt from the same taxes” refer to the character of the taxes, and not to their amount. The section is awkwardly drawn, and does not possess that definiteness that characterizes other charters passed at the same session; but the intent is evident.

4. But we cannot agree with the ingenious argument of counsel that the county, having collected a tax of 8 mills on the dollar from the inhabitants of Tillamook City, is bound to pay it over to the municipality. . It was the right of the city to levy a tax of 1 y2 mills, and the duty of the county to collect this and pay it over. The city made no levy, but the county collected not only the amount that the city was entitled to have collected, but 6% mills more, on its own account.

5. The county had no lawful right to make this collection, but, if it was paid voluntarily, a citizen cannot recover it, while, if it were collected by process of seizure and sale, an action might perhaps lie in favor of the person injured. Johnson v. Crook County, 53 Or. 329 ( 100 Pac. 294 .) Its collection was an unlawful act, and the city could not ratify such act and claim for itself what neither it nor the county was entitled to take in the first instance.

Under the ruling of this court in Eugene v. Lane County, 50 Or. 468 ( 93 Pac. 255 ), the plaintiff is entitled to that portion of the tax collected by the county represented by iy% mills on the dollar of its taxable property, and it appears that this, and more, was tendered to it and was refused.

Te decree of the circuit court is reversed, and the writ dismissed. Reversed.