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money. A copy of a telegram introduced in A. I did; I had numberless telegrams. Q. evidence reads thus: Have you got all those telegrams? A. I have. Witness hands paper to counsel.) What date is that? Q. August 26th. A. That seems to be the first one. (Witness hands three other papers to counsel.)"

"Washington, August 26th, 1910. Chas. E. Herron: You are authorized to execute my note and mortgage of all my Bully Creek holdings to Garrett, five thousand dollars due on or before one year, 6% interest. Catherine L. Shehan." A copy of another telegram in the record is as follows:

The power of attorney in question was in the following terms:

"Washington, D. C., September 4, 1910. To Catherine L. Shehan, a widow, of Washington "Know all men by these presents, that I, Chas. E. Herron, Vale. Oregon. In order to City, in the District of Columbia, do hereby enable you to borrow $5000.00 I waive my prior make, constitute and appoint Charles E. Herprior-City, ity to that extent under my contract on Bully Creek property in favor of Garret, and author- lawful attorney, in and for the purposes hereinauthor-ron of Vale, in the state of Oregon, my true and ize you to make him a first licn mortgage. I have confirmed this by letter. [Signed] Cath-after mentioned, to wit: He is hereby authorized and empowered to execute and sign my name to a negotiable promissory note and de

erine L. Shehan."

The following is a copy of a telegram re- liver the same to Harry R. Garrett, said note ceived by Herron about that time:

"Wash. D. C. 3 & 4th. Chas. E. Herron, Vale, Oregon. Power attorney to execute note mortgage mailed today complete authority. M. A. Ballinger."

The power of attorney which is in question in this suit arrived at Vale in the mail of September 6th. The money was procured from two sources: $2,000 from Mrs. Corson, and $3,000 from the bank. Notes corresponding to the amounts were given to Harry R. Garrett, the person named in the power of attorney, and a mortgage on the land and water rights was executed and delivered to him to secure their payment. At the same time Garrett assigned the mortgage and the two notes to C. W. Thebaud, an officer of the bank, and the mortgage and assignment were afterwards recorded. At the time of receiving the notes and mortgage, Thebaud executed what was termed a declaration of trust acknowledging that he held them in trust for the bank and for Mrs. Corson. Afterwards Thebaud indorsed the notes to the plaintiff bank. It is shown by the evidence of J. W. Corson (pages 16, 17, Trans.) that the money was paid over to Mr. Herron for Mrs. Shehan, to quote:

"That amount, $5,000 actual cash, was received by Charles E. Herron under his power of attorney for Catherine L. Shehan."

From the evidence of J. W. Corson to whom Herron made an application for a loan and who states that he had personal knowledge of the negotiations and opened and read several of the telegrams received, the following appears:

to be dated September 6, 1910, for the sum of the order of said Garrett on or before one year five thousand ($5,000.00) dollars, payable to after its date and bearing interest at six (6) per cent. per annum and payable at any bank at Vale, Oregon. And the said Herron is further authorized to execute in my name a mortgage, or deed of trust, to secure the payment of said note and interest, upon and covering four hundred and eighty (450) acres of land owned by me in Malheur county, Oregon, that being all the land owned by me in said county, and also all my right, title and interest in and to all wasites owned by me in said county, said mortter rights and surveys and reservoir and dam gage or deed of trust to be in the ordinary form, used in said county and the said Herron is authorized to sign my name to said note and mortgage, or deed of trust, and to acknowledge for me and in my name the execution of the said mortgage, or deed of trust, and to deliver said note and mortgage or deed of trust to said Garrett, and said note and mortgage or deed of trust, so executed and acknowledged to said Garrett shall be in all respects as binding on me as though I had personally executed and acknowledged the same.

hand and seal this third day of September, 1910. "In witness whereof, I have hereunto set my "Catherine L. Shehan. [Seal.]"

This instrument was acknowledged and recorded in Malheur county, Or.

It is contended by counsel for defendant Mrs. Shehan that the note and mortgage were void for the reasons: (1) That two notes were executed instead of one; (2) that the notes provided that the interest should be paid semiannually, and, if not so paid, the whole sum should become due; (3) that Herron and wife signed the notes and mortgage, thereby creating a cloud upon Mrs. Shehan's title to the property; that there was a departure from the power of attorney.

It is ap

"A. Mr. Herron made application to Mrs. Shehan for $5,000 which he needed on the prop- The evidence produced by the plaintiff is erty out here, and she wired him that she didn't not contradicted. There was no violation have the cash, but if he could borrow it, to bor- of the terms of the power. The defendants row it, and she would pay it. Q. What property do you have reference to? A. The Bully offered no evidence in the case. creek interests that were deeded by Mr. Herron parent from the record that Mrs. Shehan to her, including the land described in the deeds desired to obtain the loan of $5,000 for Herfrom Herron to Catherine L. Shehan, deeded land and water rights which she always referred ron to use in promoting the irrigation projto as her Bully creek property. Q. And she ect. There is no pretense that she desired and Herron were endeavoring to raise money the money to be forwarded to her at Washfor the improvement of that property? A. Yes. Q. And Herron was here in person, was he not? ington, hence it must be conceded that she A. Herron was here in town. Q. Talked with obtained the money and that it was delivyou about it? A. Talked with me about it, ered to Herron as it was intended to be, and and I told him I could get him the money if for her benefit. This was on September 6, he would get me a mortgage on the property. Q. And did you have any communication with 1910. Mrs. Shehan retained the benefit of

The same conclusion may be

no known objection to the manner of the ex-general use. ecution of the power conferred by her upon suggested in regard to the promise to pay Herron until the commencement of this suit the $5,000 being on two pieces of paper inFebruary 3, 1913, more than two years and stead of one as a matter of convenience. five months after the power had been con- The rule is laid down in 31 Cyc. 1263c(1): ferred. She thereby impliedly waived any "In General. Ratification of the acts of an variance or departure in the execution of agent need not in most cases be express, but the power conferred, and was liable for the may be implied from the acts and conduct of debt. It is therefore plain that the $5,000 in tion may be implied from any acts or conduct the principal, and generally speaking a ratificaquestion was invested in the same manner on the part of the principal reasonably tending as the proceeds of the former note of Mrs. to how such an intention on the part of the Shehan, and would inure to the benefit of principal to ratify the acts or transactions of the alleged agent, particularly where his conthe latter. In the event of the scheme being duct is inconsistent with any other intention. successful, she would realize a large profit* *So a ratification may be implied where as she was to have $50,000 of the capital the principal has carried out or offered, to perstock of the corporation. It was no doubt knowledge of the whole, has accepted without form a part of an unauthorized agreement with desired to have the additional loan in order objection a performance or a part payment or to save the $13,500 she had already invested. performance on the part of the other party to the agreement. * ** * It therefore seems to me that it is very poor been shown to exist, the facts will be liberally Where an agency has grace for Mrs. Shehan to come into a court construed in favor of the approval by the prinof conscience and seek to evade the payment cipal of the acts of the agent, and very slight of her note. It is not strange that with so circumstances and small matters will sometimes limited a capital to carry forward such an suffice to raise the presumption of ratification." immense undertaking that there should be We think the circumstances as shown by troubled waters upon the financial sea. When the uncontradicted evidence in this case were Mrs. Shehan authorized Herron to execute sufficient to put Mrs. Shehan, as a reasonably a mortgage in her name on the property held prudent person, upon inquiry as to the manby her to secure the payment of the $5,000, ner of the execution of the power. She had it is manifest that she intended a valid mort- executed her power of attorney authorizing gage to be executed, and if it was necessary the procurement of the loan, the execution for Herron and wife to sign the same, as it of a note and mortgage, and sent telegrams undoubtedly was, Mrs. Shehan has no reason approving the transaction. It is not conto complain. She could in no way be injur-sistent with business principles that she reed. It is shown by the triple contract re- mained for over two years without knowing ferred to above relating to the promotion or caring what had been done in regard of the enterprise, which was executed prior thereto. to the signing of the notes and mortgage, It is a familiar principle that a person canthat Mrs. Shehan held title to the property not retain the fruits of an unauthorized conembraced in the mortgage as security until tract made for his benefit by another assuma corporation should be organized and stock ing to act as his agent and repudiate the and bonds issued, when the same was to be responsibilities of such contract, and any attransferred to the corporation. That agree-tempt to so retain the benefits constitutes a ment also shows Ballinger's relations to the ratification of the unauthorized act and cretransaction, explains why he signed one of the telegrams, and shows the relations of the parties in the promotion of the irrigation project. It appears therefrom that both Mrs. Shehan and Herron were engaged in a joint enterprise, associated together for a common purpose. By Herron and wife signing the mortgage no cloud was created upon Mrs. Shehan's title to the property. In this respect it was at the most mere additional evidence of the true condition of the title to the same.

ates a liability on the part of such person to the same extent as if such contract were originally authorized. La Grande National Bank v. Blum, 27 Or. 215, 217, 41 Pac. 659; Mullaney v. Evans, 33 Or. 333, 54 Pac. 886; McLeod v. Despain, 49 Or, 563, 90 Pac. 492, 92 Pac. 1088, 19 L. R. A. (N. S.) 276, 124 Am. St. Rep. 1066; Hillyard v. Hewitt, 61 Or. 62, 120 Pac. 750; Grover v. Hawthorne, 62 Or. 96, 114 Pac. 472, 121 Pac. 808; Perkins v. Boothby, 71 Me. 91, 97. Subsequent ratification is equivalent to a prior authority and ratification of a part is affirmance of the whole. Moss v. Rossie Lead Mining Co.,

The power of attorney did not specify when the interest on the note should be paid. The parties seem to have prepared and executed 5 Hill (N. Y.) 137. the notes and mortgage as nearly in conformity with Mrs. Shehan's directions as they knew how to do; one of the parties being an attorney, and the bank officers taking part in the transaction. The provision in the note that the interest is "payable semiannually" amounts to but little more than a matter of form. A blank for such time to be inserted is found in many of the forms of notes in

The question of the expenditure of the money obtained upon the note and mortgage was not one which the lender or mortgagee could oversee or direct. The money being paid to Herron, a person designated by 'Mrs. Shehan to receive the same, was all the authority that the parties making the loan could exercise. The question of disbursement by the agent is entirely between the principal

and the agent. McLeod v. Despain, supra. In the case of Wilson v. Troup, 2 Cow. (N. Y.) 195, 14 Am. Dec. 461, the court said:

"In construing a power of attorney, therefore, in order to ascertain whether it has been well executed, the letter of the instrument is not to be exclusively regarded; but the important inquiry is: Have the intentions of the parties been carried into effect?"

We quote from Reinhard on Agency, § 141: "Where the owner of real estate makes a power of attorney to an agent to sell the land of the owner, but does not by such power of attorney authorize the agent to make conveyance thereof, and the agent, in excess of his authority, makes such a conveyance thereof, as well as sale, the principal, upon being informed, may reject such sale; but if he approves what has been done in his name, and accepts notes and mortgage given by the purchaser, and insists upon their payment after being informed of the conveyance, he thereby ratifies the conveyance and the effect of the power of attorney to convey as executed by the agent."

Viewing the transaction as delineated by the documents and evidence contained in the record, we think that any departure from the terms of the power of attorney, in the execution thereof, was impliedly ratified by Mrs. Shehan. The plaintiff's witnesses have given their version of the important dealings, and, if their theory or delineation was incorrect, it was incumbent upon the defendants to explain or show wherein the evidence of plaintiff was wrong. The equities are with the plaintiff. The judgment of the lower court should be affirmed. MCNARY, J., concurs.

(73 Or. 417)

PACIFIC LIVE STOCK CO. v. COCHRAN. (Supreme Court of Oregon. Dec. 8, 1914.) 1. WATERS AND WATER COURSES (§ 133*)—APPROPRIATION-PROCEEDINGS-FEES FOR DETERMINATION OF WATER RIGHTS BY STATE WATER BOARD-VOLUNTARY PAYMENT.

In all cases, whether the agency be general or special, it is said to be a universal principle that, unless the inference is expressly excluded by other circumstances, it includes ings by the state water board to adjudicate waL. O. L. § 6656, provides that if, in proceedall the usual modes and means of accomplish- ter rights, any claimant after notice shall fail ing the objects and ends of the agency. Sto- to appear and submit proofs of his claims, he rey on Agency, § 85. In McDermott v. Jack-shall be barred from subsequently asserting any rights theretofore acquired on the stream or othson, 97 Wis. 76, 72 N. W. 379, the court said: er body of water embraced in such proceeding, "The principle that a person cannot retain and shall be held to have forfeited all right to the avails of an unauthorized contract, made the use of the water theretofore claimed by him. for his benefit by another assuming to act as Section 6641 provides that, at the time of subhis agent, and repudiate the responsibilities mitting proof of appropriation or of the taking of such contract, and that any attempt so to do, of testimony for the determination of rights to with full knowledge of the facts, constitutes a water, the division superintendent shall collect ratification of the unauthorized act, and creates from each claimant a fee of $1 for recording a liability on the part of such person to the same the water right certificate, and an additional extent as if such contract were originally au- fee graduated in accordance with the acreage for thorized, is familiar." which water rights are claimed. Held, that Payment of such fees by claimant under protest, in proceedings so instituted in order that he might establish his claim and not suffer a forfeiture thereof, was not voluntary so as to preclude him from subsequently suing to recover the ille-same on the ground that the fees exacted were illegal.

The case of Taylor v. Agricultural & Mechanical Ass'n, 68 Ala. 229, 237, 238, indicates that, while courts may not give relief in actions at law where powers have been illegally executed, they will give the necessary relief in equity, and that the principal receiving and using the proceeds of an unauthorized contract made by an agent ipso facto ratifies the acts of the agent. The court there said:

"While this rule prevails at law, in equity it is equally well settled that contracts or conveyances made by an agent having authority, though informally and defectively executed, are binding on and will be enforced against the principal. *** It is not material whether the defective execution is the result of mere inadvertence, or whether it is founded in ignorance or mistake of the law."

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 146; Dec. Dig. § 153.*]

2. STATES (§ 193*)-ACTION AGAINST ILLEGAL TAXES-RECOVERY-PARTIES SUBJECT TO SUIT.

Where a state officer has collected an illegal tax or exaction and paid the same into the state treasury, as is his duty, an action to recover the same should be brought, not against him, but against the state.

[Ed. Note. For other cases, see States, Cent. Dig. § 186; Dec. Dig. § 193.*1

3. TAXATION (§ 40*)-"TAX."

the laws of the several states, is ordinarily used The word "tax," in common parlance and in to express the idea of sovereign power exercised for a particular purpose, to wit, to raise money for general and ordinary governmental expenses, and as used in Const. art. 9, § 1, requiring uni

Perkins v. Boothby, supra, was an action for money had and received. The court said: "When an agent without authority or knowledge of his principal borrows money and applies it to the payment and discharge of the legal liabilities of his principal, and the principal know-formity of taxation, means an exaction by the ingly retains the benefit of such payment, the lender may recover therefor in an action against the principal for money had and received. A principal cannot knowingly retain the benefit of money hired by his agent, in the name of the principal, and at the same time legally refuse to pay the loan upon the ground that the agent had no authority to borrow money."

sovereign from a citizen without his consent, a charge or pecuniary burden, imposed on the individual or his property, to support the general government or for some special purpose for which the state may make requisition in a particular mode, and does not include fees required by claimants of water rights to be paid prior to the determination of their rights in proceedings

instituted by the state water board for that pur- I receive or file the said statement, and the said pose by L. O. L. § 6641.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 68-89; Dec. Dig. § 40.* For other definitions, see Words and Phrases, First and Second Series, Tax.]

4. CONSTITUTIONAL LAW (§ 278*) -WATERS AND WATER COURSES (§ 133*)-DUE PROCESS LAW-FEES-APPROPRIATION-PROCEED

OF

INGS.

L. O. L. § 6641, requiring each claimant of water rights, submitting his claim to the state water board for determination, in proceedings by the board to establish water rights on a stream used for irrigation, to pay certain specified fees, graduated in accordance with the amount of land within the claim of each claimant, is not unconstitutional as depriving claimant of his property without due process of law; such fees being used to pay the expenses incident to the hearing and determination of the claims, to the survey of the land, etc.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 763, 765, 767-770, 772-777, 779-806, 808-810, 816-824, 907-924, 942; Dec. Dig. § 278;* Waters and Water Courses, Cent. Dig. 146; Dec. Dig. § 133.*]

--

EQUAL

5. CONSTITUTIONAL LAW (§ 211*) PROTECTION OF LAWS-DISCRIMINATION. L. O. L. § 6641, requiring water claimants to pay specified fees as a condition precedent to their right to have their water rights determined in proceedings by the state water board for that purpose, in so far as it exempts from payment claimants having permits issued under Acts 1909, was not discriminatory, in view of section 6601, requiring the state engineer to exact in advance from an applicant for a permit to appropriate water exactly the same amount as fees which is exacted from claimants

on final determination under section 6641.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 678; Dec. Dig. § 211.*] In Banc. Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by the Pacific Live Stock Company against George T. Cochran. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint alleges that defendant is a member of the board of control of the state of Oregon, now designated as the state water board, and superintendent of water division No. 2, and recites:

"That prior to any of the times herein mentioned the said board of control of the state of Oregon determined to make a determination of the rights of all persons to the waters of Silvies river, and thereupon duly published notice requiring all parties claiming any rights therein to file statements of their claims and stating the time when the testimony would be taken, all in accordance with the provisions of section 6636 of the General Laws of Oregon, and a copy of said notice was duly served upon plaintiff by registered mail, as provided by section 6637 of said Laws of Oregon, and which notice required that said statement be filed with the defendant above named. * * * Thereafter and on the 28th day of July, 1913, plaintiff duly delivered. to the said defendant as such superintendent of water division No. 2 its statement of its claims in and to the waters of Silvies river duly sworn to and containing all of the matters required by section 6638 of the Laws of Oregon, and thereupon requested the said defendant to receive and file the same. * That said defendant then and there demanded of the said plaintiff the payment of the sum of $401.44, as an irrigation fee, and $1 as a certificate fee, before he would

*

At

defendant then and there refused to file the said statement unless the said sum was paid to him. That said plaintiff thereupon insisted that the said statement be received and filed by him without the payment of the said sum, but the said defendant refused to file or receive the same and illegally demanded and insisted upon the payment of the said sum as aforesaid. * * That the said plaintiff protested against the payment of the said sum on the ground that the same was illegal, extortionate, and deprived the said plaintiff of its right to set up its rights and defend its rights in the matter of the said adjudication of the water rights of said river, and deprived plaintiff of its property without due process of law, and deprived it of the equal protection of the law and prevented it from defending its rights without paying an exorbitant sum of money to the said defendant; and thereupon the said plaintiff under protest and involuntarily, and by reason of the compulsion of the said defendant, paid the said sum to the said defendant, and the said defendant took and received the same from the said plaintiff, and thereupon filed the said claim as aforesaid. the time of the said payment the said plaintiff notified the said defendant that the said payment was made involuntarily and under protest, but the said defendant still does retain the said money and the whole thereof, and refuses to pay the same to plaintiff, and no part thereof has been repaid by defendant to plaintiff. voluntarily and under compulsion and by reason That the said payment was made inof the illegal demands of the defendant as aforesaid, and his refusal to file the said document unless the said demands were complied with. fendant was wholly illegal and extortionate, and the said sum so demanded was not a proper fee or any fee for the filing of the said paper, and the said amount so demanded as aforesaid as a condition of filing said paper was illegal and the amount thereof was grossly and entirely out of all proportion to the services required by the said defendant in receiving and filing the said document, and the said amount was not a proper or any fee for the filing of the said document, but was an arbitrary tax and imposition placed upon plaintiff illegally preventing it from defending the proceedings which it was cited to defend as aforesaid."

*

* * *

That the said demand of the said de

There was a prayer for judgment against defendant for $403.44. The defendant demurred generally, and, the demurrer having been sustained, plaintiff appeals.

Edward F. Treadwell, of San Francisco, Cal., and John L. Rand, of Baker, for appellant. A. M. Crawford, Atty., Gen., for respondent.

MCBRIDE, C. J. (after stating the facts as above). The judge of the circuit court made and filed a lengthy and exhaustive opinion, which, with certain exceptions hereinafter noted, we adopt as the opinion of this court. It is as follows:

"The above cause is before the court for decision on demurrer to the complaint. The allegations of the complaint are familiar to the attorneys for both parties, and hence it is unnecessary to set forth the allegations of the complaint in this opinion. Suffice it to say that this is an action to recover money, which has been paid to the defendant, as one of the water superintendents of the state, and a member of the board of control, and which was paid to him under and by virtue of the provisions of section

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

exaction may be illegal, yet if the officer, whose duty it is to collect the tax collects the same and turns it into the state treasury, the action should be brought against the state or municipality, instead of the officer. Eugene v. Lane County, 50 Or. 468. 93 Pac. 255; Yamhill County v. Foster, 53 Or. 124, 99 Pac. 286. The presumption of law is that official duty has been regularly performed. Subdivision 15, § 799, L. O. L. Stephenson v. Van Blokland, 60 Or. 247, 118 Pac. 1026; Clark v. City of Salem, 61 Or. 116, 121 Pac. 416, Ann. Cas. 1914B, 205. Therefore the presumption is that the money collected from the plaintiff has been turned over by the defendant to the state treasury, but the complaint in this case alleges, in paragraph 7 thereof, 'but the said defendant still does retain the said money, and the whole thereof.' I think that this allegation raises an issue as to whether or not the defendant had possession of the money sought to be recovered at the time this action was commenced.

6641, L. O. L., which provides as follows: 'At | authorities seem to hold that although a tax or the time of the submission of proof of appropriation, or at the time of taking of testimony for the determination of rights to water, the division superintendent shall collect from each of the claimants or owners, a fee of $1.00 for the purpose of recording the water rights certificate, when issued in the office of the county clerk, together with the additional fee of 15¢ for each acre of irrigated land up to and including 100 acres, and 5¢ per acre for each acre in excess of 100 acres up to and including 1,000 acres, and 1¢ for each acre in excess of 1,000. * * All fees collected by the division superintendent shall be accounted for at the following regular meeting of the board of control and paid by such board into the state treasury, except, however, those fees due, or to be paid to the county clerk.' A demurrer has been filed to the complaint upon the following grounds: "That the complaint fails to state facts sufficient to constitute cause of action against the defendant, in that the complaint shows upon its face that all the fees alleged to have been collected by the defendant, were collected under and pursuant to the provisions of section 6641, L. Ò. L., and hence were legally collected, and turned over to the state treasury of the state of Oregon.'

[1] "It is contended by counsel for the defendant, in support of the demurrer, that the money paid to the defendant was a voluntary payment, and hence cannot be recovered back. It is alleged in the complaint that the money paid was paid under compulsion. However, I think that the complaint clearly shows that the only compulsion was the provisions of the water code requiring the same to be paid. Of course, it was optional with the plaintiff, whether it paid the money or not, that is, it was optional with the plaintiff whether it filed its claim; but if it did not file its claim, under the law its right to have the water it was entitled to have adjudicated ceased, and it could not afterwards have its right adjudicated. Under these circumstances, I do not believe that the payment was such a voluntary payment that it could not be recovered. Under the authorities, if the party paying the money has the right to contest the payment as a defendant in the case or has the right to enjoin the collection of the money without jeopardizing any of his rights, a payment made under such circumstances is a voluntary payment, and cannot be recovered. Such is the doctrine of the case of Johnson v. Crook County, 53 Or. 329, 100 Pac. 294, 133 Am. St. Rep. 834, and also the case of Trower v. City and County of San Francisco, 152 Cal. 479, 92 Pac. 1025, 15 L. R. A. (N. S.) 183. The authorities also hold that where the delay will prejudice the rights of a party because payment must be made at a certain time, as a condition precedent to filing a claim or presenting proofs, etc., and where illegal fees are exacted by one in official authority, preventing the immediate exercise of an undoubted right, except on their payment, they may be recovered, although the party may have resorted to mandamus proceedings to compel the filing without payment. Trower v. City and County of San Francisco, supra; State v. Gorman, 40 Minn. 232, 41 N. W. 948, 2 L. R. A. 701; Fatjo v. Pfister, 117 Cal. 83, 48 Pac. 1012. In the case at bar, the plaintiff was compelled to make the payment on or before the 22d day of August, 1912, the time set by the board for the submission of proof of appropriation, and, if it did not pay the fees on or before that time, it could not submit its proof. I think that the payment, under such circumstances, was an involuntary payment and therefore can be recovered.

[2] "Again it is contended by counsel for the defendant, in support of their demurrer to the complaint, that this action should be brought against the state, instead of against the defendant whose duty it is, after receiving the money,

"Again, it is contended by counsel for the defendant, in support of their demurrer to the complaint, that the money was paid by the plaintiff to the defendant under and by virtue of the provision of section 6641, L. O. L., which is a valid enactment, and therefore the plaintiff cannot recover the same. Counsel for the plaintiff, on the other hand, claims that section 6641, in so far as it gives the division superintendent the right to collect the fees specified in said section, is illegal and unconstitutional, and therefore the plaintiff has a right to recover the same. This is the most important question presented for decision by the demurrer to the complaint. Counsel for the plaintiff claims that the imposition of these fees is a tax, and violates the constitutional provision that a tax upon property shall be equal and uniform, and that, as the money derived from these taxes goes into the general fund of the state treasury, this property is bearing an unjust burden of taxation; the presumption being that it is already taxed for general revenue purposes. Ellis v. Frazier, 38 Or. 462, 63 Pac. 642, 53 L. R. A. 454.

[3] "While the matter is not free from doubt, yet I do not believe that upon principle and the better authority the exaction of these payments is a tax under the meaning of the word 'tax,' as applied to the raising of revenue. In the case of State ex rel. v. Frazier, 36 Or. 186, 59 Pac. 5, the Supreme Court of this state, in upholding the constitutionality of an act providing for the collection of what was alleged to be exorbitant fees amounting to a tax, says: "The term "taxation," both in common parlance, and in the laws of the several states, says Mr. Justice Sawyer in Emery v. Gas Co., 28 Cal. 345, 356, "has been ordinarily used, not to express the idea of the sovereign power which is exercised, but the exercise of that power for a particular purpose, viz., to raise a revenue for the general and ordinary expense of the government, whether it be the state, county, town, or city government." And it is in this sense the word is used in this section of the Constitution, under consideration (article 9, § 1). Assessment and taxation in themselves imply an exaction by the sovereign from the citizen without his consent, and a tax is a charge or pecuniary burden imposed upon an individual or his property for the support of the general government, or for some special purpose authorized by it for which the state may make requisition in a particular mode. rough's Tax'n, § 4; Cooley's Tax'n, § 1. It operates in invitum, without the consent of the taxpayer and without reference to any special benefit to him as contradistinguished from the rest of the community or class alike, according to some uniform rate or mode of assessment, or other just rule of apportionment, and it would be giving to the section of the Constitution under consideration an unnatural and unwarranted con

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