Leach v. Port of Tillamook
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Summary
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Opinion of the Court
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Mr. Justice Bean
delivered the opinion of the court.
The election and proceedings for changing the boundaries of the Port of Tillamook were considered by this court in the case of State of Oregon ex rel. v. Port of Tillamook et al., 62 Or. 332 ( 124 Pac. 637 ), wherein an opinion was rendered on the 18th of June, 1912. Therefore we will not discuss the same questions here. It was there held that, under our constitution, the legal voters of the corporation were not authorized to annex new territory to the port without the acquiescence of the voters of the part proposed to be annexed, and that such proceedings were a nullity; that the area embracing plaintiffs’ property was not within the corporate limits of the Port of Tillamook. The remaining question is: Can the plaintiffs maintain this suit to restrain the collection of a tax alleged to be illegal for the reason that the property upon which it was levied was not subject to such tax, and that the officers attempting to make the levy were acting without authority therefor?
*347 The governing rule in a suit in equity for such purpose is summarized, and authorities collated by Mr. Justice Bean, in Yamhill County v. Foster, 53 Or. 124 , at page 132 ( 99 Pac. 286 , at page 289), as follows:
“It is a general rule that a court of equity will not interfere to restrain the collection of public revenue for mere illegality or irregularity in the proceedings, but its jurisdiction is confined to cases where the tax itself is not authorized by law, or is assessed on property not subject to taxation, or the persons exacting it are without authority in the premises, or have proceeded fraudulently, or some other ground of equitable interference is shown. Welch v. Clatsop County, 24 Or. 452 ( 33 Pac. 934 ) ; Hibernian Benevolent Society v. Kelley, 28 Or. 173 ( 42 Pac. 3 : 30 L. R. A. 167: 52 Am. Rep. 769 ) ; Alliance Trust Co. v. Multnomah County, 38 Or. 433 ( 63 Pac. 498 ) ; State R. Tax Case, 92 U. S. 575 ( 23 L. Ed. 663 ).”
This announcement was quoted by Mr. Justice Burnett, and followed in the recent case of Callender Navigation Co. v. Pomeroy, 61 Or. 343 ( 122 Pac. 758 ). The same principle was adhered to in Bennett Trust Co. v. Sengstacken, 58 Or. 333 ( 113 Pac. 863 ) ; McKeon v. City of Portland, 61 Or. 385 ( 122 Pac. 291 ) ; Terwilliger Land Co. v. City of Portland, 62 Or. 101 ( 123 Pac. 57 ) ; Carman v. Woodruff, 10 Or. 133 ; State v. Pennoyer, 26 Or. 205 ( 37 Pac. 906 : 41 Pac. 1104 : 25 L. R. A. 862) ; Brownfield v. Houser, 30 Or. 534 ( 49 Pac. 843 ).
The officers of the port had no authority to levy a tax on the plaintiffs’ property situated outside of the corporate limits of the Port of Tillamook. Callender Navigation Co. v. Pomeroy, 61 Or. 343 ( 122 Pac. 758 ). We think the complaint shows that the plaintiffs have a cause of suit and that the demurrer should have been overruled. The decree of the lower court must therefore be reversed, and the cause be remanded for such further proceedings as may be proper, not inconsistent herewith; and it is so ordered. Reversed.
How later courts describe this case
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(holding that annexation was a nullity because it was not obtained with consent of requisite number of voters in area to be annexed and consequently jurisdiction was lacking)
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