(37 Or. 479) STATE ex rel. HERREN v. HALL, County Clerk, et al.1 (Supreme Court of Oregon. Dec. 17, 1900.) COUNTY COURT-CONTRACT-COLLECTION OF TAXES. The county court, made the general financial or business agent of the county, and char ged with "the care and management" of its business and funds (Hill's Ann. Laws, § 896, subd. 9), can employ one to assist in collecting delinquent taxes which cannot otherwise be collected, there being no interference with the duties of the sheriff, the tax collector. Appeal from circuit court, Marion county; R. P. Boise, Judge. Suit by the state, on the relation of Levi Herren, against W. W. Hall, county clerk of Marion county, and another, for injunction. Decree for relator. Defendants appeal. Reversed. This is a suit brought by the state, upon the relation of a private individual, to enjoin the delivery by the clerk and payment by the treasurer of Marion county of a warrant ordered to be issued by the county court to George G. Bingham on a claim presented by him for services in the collection of delinquent taxes. The facts are that in September, 1898, the county court employed Mr. Bingham to collect, or assist in the collection of, delinquent taxes for the years 1892, 1893, 1894, 1895, and 1896, and to take charge of the property theretofore bid in by the county judge on delinquent tax sales, and collect the amounts due thereon, or, when advisable, to recover the possession of the property by action or otherwise. At the time of making this contract the delinquent tax rolls for the years named were in the hands of the sheriff, but all collections thereon which could be enforced had been made, and there were no means of collecting any further or additional taxes by legal process. It was Mr. Bingham's duty, under his contract, to ascertain from the tax rolls the names of delinquent taxpayers, to learn their whereabouts, and to notify them personally or by letter of the amount of their taxes, and request them to call at the sheriff's office and pay the same, but he was not in any way authorized to interfere with the duties of that officer. For his services he was to receive 15 per cent. on all taxes collected from the rolls of 1895 and 1896, and 20 per cent. on the amount collected from the other rolls. On January 6, 1899, he was allowed $180.51 by the county court for the percentage due him on collections made in pursuance of his contract, and a warrant was ordered issued in his favor for the amount thereof. Before its delivery this suit was commenced, and a decree rendered in favor of the plaintiff, and the defendants appeal. W. M. Ramsey and F. T. Wrightman, for appellants. R. J. Fleming, for respondent. 1 Rehearing denied January 7, 1901. BEAN, C. J. (after stating the facts). The plaintiff bases its right to relief on the ground that the county court had no power or authority to enter into a contract with Mr. Bingham to collect, or to assist in the collection of, delinquent taxes. The argument is that by law the sheriff is made the tax collector of the county, and the county court cannot interfere with his duties. But, conceding this position, the contract in question does not attempt to interfere with the duties of the sheriff or any other officer. The county court by statute is made the general financial or business agent of the county, charged with "the care and management" of its business and funds (Hill's Ann. Laws, § 896, subd. 9), and to that end it may, unless prohibited by law, adopt such means as in its judgment may be proper or expedient to assist a county officer in the discharge of his duties. Taylor v. Umatilla Co., 6 Or. 394; Burnett v. Markley, 23 Or. 436, 31 Pac. 1050; Martin v. Whitman Co., 1 Wash. St. 533, 20 Pac. 599. And we can see no reason why it may not, if in its judgment necessary, employ some one to collect, or assist in collecting, taxes from delinquent taxpayers from whom payment could not be otherwise enforced. It was so held by the supreme court of Iowa, under a statute conferring upon the boards of county supervisors substantially the same powers as conferred upon the county courts of this state. Wilhelm v. Cedar Co., 50 Iowa, 254. In that case it is said: "Now, because the statute does not expressly authorize the board of supervisors to employ a special agent or attorney to assist in the collection of taxes not collectible by the county treasurer in the discharge of his duty, it does not follow that they may not have the implied power to do so. They have the power to represent their respective counties, and to have the care and the management of the property and business of the county in all cases where no other provision is made.' • It is the business of the county to collect taxes, and to use all reasonable means to do it. We think, therefore, the board of supervisors had the power to employ the plaintiff to render the service in question." The decision in Burness V. Multnomah Co., 60 Pac. 1005, 37 Or. ——, is in no way in conflict with this conclusion. In that case the contract between the county and Noble was held vold because it undertook to interfere with the duties of the county clerk by stipulating how and from what data he should make delinquent tax rolls. But, as already said, in this case there was no attempt to interfere with the duties of the sheriff, but, rather, to give him assistance, in order that something might be realized on delinquent taxes which could not be collected by legal process. It follows that the decree of the court below must be reversed, and the complaint dismissed. (38 Or. 135) GADSBY et al. v. CITY OF PORTLAND et al. (Supreme Court of Oregon. Dec. 17, 1900.) LICENSES-VEHICLE TAX-MUNICIPAL CORPO RATIONS-TAXATION-ORDINANCE -POLICE POWER. 1. Portland City Charter (Sess. Laws 1898, p. 109, § 1) authorizes taxation not to exceed eight mills on the dollar. Subdivision 1, § 32, requires the council to set apart certain portions of the amount realized by taxation for specified municipal purposes,-among them, for the repair of streets, one-quarter of a mill,and that no other sum shall be appropriated for the purpose. Section 217 limits the council's expenditures for all purposes annually to the amount of revenues estimated by the auditor at the first meeting of the council in January of each year. Section 159 requires the council to declare whether the cost of a street improvement shall be assessed on adjacent property or paid out of the general fund, and that temporary repairs shall be paid from the sum for street repairs. Section 160 provides that, if the council declares that an improvement shall be paid from the general fund, it shall be deemed a temporary repair, and paid for accordingly. Held, that as section 217 and section 32, subd. 1, indicated that the various municipal improvements should be paid for from particular funds, limited in amount, with which construction sections 159 and 160 were not in conflict, since a reading together of such sections showed that the term "general fund," as used in such sections, was merely to distinguish between the cost to be paid by the city and that to be paid by adjacent property. Ordinance No. 11,736, imposing a license tax on vehicles, and providing that the sum so raised should be devoted to the repair of streets, was invalid, as an attempt to collect revenue in excess of the amount authorized; the full eight mills on the city's taxable property having been collected. 2. The ordinance could not be sustained on the ground that it was an exercise of the police power of the city, rather than a measure of taxation. 3. The ordinance was not valid on the ground that the full eight mills on the dollar authorized to be collected had not been collected, by reason of the fact that the assessors had improperly rated the city's taxable property, since his valuations were conclusive. 4. Portland City Ordinance No. 11,733, imposing a tax on vehicles, and providing that the sum so raised should be used for the repair of streets, being invalid, as an attempt to raise revenue for the streets additional to that authorized by the city charter, could not be sustained on the ground that, though invalid in such regard, the revenue might be collected and placed in the general fund; the title of the ordinance declaring its purpose to be to raise revenue for the repair of streets. Appeal from circuit court, Multnomah county: John B. Cleland, Judge. Suit by William Gadsby and others against the city of Portland and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed. J. M. Long, for appellants. W. D. Fenton, for respondents. WOLVERTON, J. This suit was instituted by nearly 200 merchants, firms, and corporations engaged in business of various kinds in the city of Portland, who refused to pay the license fees or taxes required by Ordinance No. 11,736, upon wagons, hacks, and other vehicles used by them in connec tion with their business enterprises, and its purpose is to enjoin the collection thereof. The ordinance in question is entitled "An ordinance licensing, taxing and regulating, for the purpose of city revenue, all vehicles of any description whatsoever, in use in, upon or through any of the streets within the limits of the city of Portland." Section 8 thereof provides that "all moneys derived from license taxes under the provisions of this ordinance shall be placed to the credit of the fund for the repair of streets and bridges, and the auditor and treasurer are hereby authorized and directed to make the entries upon the books of both departments in accordance with this section." It is alleged, among other things, and conceded, that the common council of the city of Portland has for the current year caused to be levied the full eight-mill tax, or maximum amount authorized by the city charter, upon all the taxable property, both, real and personal, within the city; that this tax has been paid in full by the plaintiffs; and that the common council will be compelled to make a like levy for the ensuing year. The validity of the ordinance is challenged upon the ground that it is an attempt to provide revenue for a specific purpose in excess of the amount authorized by the charter to be expended for such purpose, and constitutes the only question which we deem it necessary to consider at this time, as it is decisive of the case. The city charter provides (Sess. Laws 1898, p. 109): "The council has power and authority within the city of Portland: (1) To assess, levy and collect taxes for general municipal purposes not to exceed eight mills upon the dollar upon all property, both real and personal, which is taxable by law for city and county purposes. And when the council shall have made their estimate and declared the necessary amount of money to be raised by general taxation, as provided in section 51 of this act, they shall by said ordinance set apart not to exceed one and one half mills for lighting the streets of the city; not to exceed two mills for the fire department of said city and not to exceed one and three-fourth mills for the maintenance of the police department; and shall appropriate and set apart one fourth of one mill on the dollar on the assessed valuation of all property liable to assessment and taxation, which shall constitute funds, respectively, for the fire department, police department, lighting department and the repair of streets and shall not be used for any other purposes whatsoever. And that no part of the said funds so specially appropriated shall be used for any other purpose, nor shall said funds so appropriated be a part of the general fund of the said city, against which fund warrants may be drawn for any other than the maintenance of the specific departments for which the fund is appropriated. And no other or greater sum shall be appropriated for the purpose above set forth, and the remaining two and one half mills hereby authorized to be levied shall be set apart and used exclusively to pay the interest on the bonded indebtedness of the city of Portland." Section 32, subd. 1. Section 51, alluded to, provides that on or before December 31st of each year the several officers, commissions, or departments of the city shall prepare and file an estimate of the expense for the ensuing year for their respective departments, and that thereupon the council shall, by ordinance, estimate and declare the necessary amount of money to be raised by general taxation, and levy the necessary tax therefor. The charter elsewhere provides (section 71) that the police commissioners shall on the 1st day of January of each year report to the common council the estimated amount of salaries and other necessary expenses of the police department for the ensuing year, and the council shall make an appropriation not to exceed 14 mills on the dollar upon all taxable property within the city, to meet the expenses of the department, and pay the same monthly as other accounts are paid out of the city treasury. Section 94, that the board of fire commissioners shall, on the 1st day of January of each year, or as soon thereafter as practicable, report to the common council the estimated amount of salaries and other necessary expenses for the fire department for the ensuing year, and that the council shall make an appropriation not exceeding 2 mills on the dollar upon all the taxable property within said city to meet the same, and, to the extent that the tax levied on said property is collected, the sum so raised shall be used to meet the expenses of said department. Section 175, subd. 1, that the amount expended in any one year for lighting the streets of the city shall not exceed 11⁄2 mills upon the dollar of all the taxable property within the city. Section 159, that the common council may repair any street, or any part of a street, and declare by ordinance whether the cost thereof shall be assessed upon the adjacent property or paid out of the general fund of the city. Temporary repairs may be made under the direction of the board of public works whenever the said board deems the same necessary, and the expense thereof shall be paid out of the fund raised for the repair of streets. Section 160, that, if the council declares that a proposed repair shall be made at the cost of the adjacent property, the repair shall be deemed an improvement, and made accordingly; but if it declares that the cost of the same shall be paid out of the general fund, it shall be deemed a temporary repair, be made as the ordinance may provide, and be paid for accordingly. And section 217, that at the first meeting of the common council in the month of January, annually, the auditor shall submit a statement, prepared by him, of the estimated amount of revenues for the current year, to be derived from taxes, licenses, and all other sources, and the common council shall be limited to its expenditures to be made for all purposes during the year to the aggregate amount of such estimated revenues. At the first meeting in each month the common council shall provide for the payment of all liabilities of the city incurred during the preceding month or at any time prior thereto, excepting that the payment of interest and other fixed charges shall be made as the same matures, in accordance with the terms of the contract under which such payments are to be made. From the estimated revenues hereinbefore mentioned there shall be deducted the annual interest charge against the city, the appropriations made for the police and fire departments, and all other fixed charges, so that no greater proportion of the estimated revenues of the year shall be expended in the payment of the liabilities and obligations of said city in any one month than one-twelfth part of the remainder thereof. No money shall be expended or payment made by the city except in pursuance of a specific appropriation made by ordinance for that purpose, and an ordinance making an appropriation of money must not contain a provision on any other subject. No liability shall be incurred, debt created, or contract made, involving the expenditure of money, approved by the council, during any year, which exceeds the amount of revenues received for that year. These comprehend about all the sections and clauses of the charter that have any particular bearing upon the present controversy. When construed in pari materia, as it was,. no doubt, intended they should be, they indicate a legislative purpose of providing four several, separate, and distinct funds, to be set apart and used as thereby directed, which funds are all limited by the charter with a view to keeping the expenditures of the several departments within the bounds thereby prescribed. The remaining 21⁄2 mills constitute the fifth fund, but it does not appear to have been limited and restricted in amount, or otherwise, except that it shall be used exclusively to pay the interest on the bonded indebtedness of the city. As we have seen, subdivision 1, § 32, requires that the common council shall set apart by ordinance not to exceed 12 mills for lighting streets, 2 mills for the fire department, 14 mills for the police department, and appropriate and set apart one-fourth of 1 mill on the dollar, which shall constitute a fund for the repair of streets, and that no other or greater sum shall be appropriated for the purposes named. This latter limitation, however, does not apply to the interest fund. Section 71 also requires that an appropriation not exceeding 14 mills on the dollar shall be made to meet the expenses of the police department, and section 94 contains almost the identical provision with reference to the fire department. Section 175, subd. 1, expressly circumscribes the authority of the common council to the ex penditure of 11⁄2 mills on the dollar of the taxable property in any one year for street-lighting purposes; and sections 159 and 160, while not so explicit, are just as effective to confine the expenditure for the repair of streets to one-fourth of 1 mill on the dollar of the taxable property of the city. Section 159 authorizes the council, whenever it deems it expedient, to declare by ordinance whether the cost of a repair shall be paid out of the general fund; but this must be read in the light of the subsequent clause and section 160. By the subsequent clause the expense of temporary repairs shall be paid out of the fund raised for the repair of streets; and, by section 160, if the common council declares that the cost shall be paid out of the general fund, such repair (that is, such as is provided for in section 159) shall be deemed a temporary repair, and be paid for accordingly, which necessarily must be out of the street-repair fund, as the latter clause of section 159 requires the cost of a temporary repair to be paid out of that particular fund. The legislature used the term "general fund," no doubt, to distinguish between the cost to be paid by the adjacent property and that to be paid by the city. If, however, it was determined that it should be paid by the city, then it was the purpose to confine the city to payment out of the fund for repairing streets. Section 217 indicates a purpose, also, to limit the city in the amount of its expenditures to the estimated annual revenues; and it is provided that from such revenues shall be deducted the interest charge, the appropriations for the fire and police departments, and other fixed charges, which evidently includes the funds for lighting and repairing streets. What remains constitutes the general fund of the city, and of this no greater sum than onetwelfth thereof shall be expended in any month. The general scheme, therefore, devised by the legislature for conducting and managing the finances of the city, includes the setting apart, among others, of a specific fund, consisting of one-fourth of one mill on the dollar on all taxable property of the city, for the purpose of repairing streets, which cannot be augmented or increased during the year by the city authorities. In other words, the common council is limited in its expenditures for that purpose to the maximum amount thus prescribed, and any expenditures therefor in excess of the prescribed fund are unauthorized and unwarranted. An appropriation must be made for the specific purpose, and when made the fund becomes available, and not otherwise. Such an appropriation has been made for the current year. Now, the declared purpose of Ordinance No. 11,736 is to raise revenue; and section 8 appropriates the whole of it to the fund for the repair of streets and bridges, thus signifying a clear intention on the part of the common council to supplement or augment the fund for repairing streets beyond the amount as limited by the charter. This, we have seen, it is not authorized to do, and the ordinance is therefore void and inoperative. It is immaterial whether a license fee imposed under subdivision 3, § 32, of the charter, is referable to the taxing or to the police. power of the city. The ordinance in the present case obviously denotes that its specific purpose is to raise revenue, and not only this, but to appropriate the whole of it to a use for which there is a circumscribed fund, which is not permitted to be augmented in any manner when its full quota of the city revenues has been set apart. We only know of the amount of the taxable property of the city by the assessment roll as returned by the officer intrusted with the duty of making the assessment. His valuations are conclusive, and whether he has rated the property at 60 or 100 per cent. of its cash value we cannot inquire, but must presume that he has performed his duty and rated it at its true value. It is argued that if section 8 of the ordinance be invalid, as making an appropriation, yet that the ordinance in all other respects may be adjudged to be valid, and that the revenue accruing under it would go into the general fund, and be otherwise disposed of as the city may direct. But the very purpose of the ordinance is to raise revenue for the particular fund named in section 8 thereof, and to so hold would be to subvert the specific intention of the common council, which we cannot do, under. any rules of interpretation known to the law. In support of this construction of the charter and the ordinance in question, see Chamberlain v. City of Tampa, 40 Fla. 74, 23 South. 572; Black v. Common Council, 119 Mich. 571, 78 N. W. 660. It follows that there must be an affirmance of the decree of the court below, and it is so ordered. (38 Or. 560) WILLIAMSON et al. v. NORTH PACIFIC 1. Where the conversation between the parties, so far as it related to the authority of plaintiffs to act for defendant in settling a controversy, was merged in a letter from defendant to plaintiffs, so that the authority must be determined therefrom, its construction is for the court, though it is to be construed in connection not only with a prior letter, but with defendant's testimony as to how a clause happened to be added to the letter, and with the surrounding circumstances. 2. Where defendant sold lumber to plaintiffs in California to be shipped to customers in Chile, where all plaintiffs' business was done, to defendant's knowledge, through an allied firm there located, and defendant's contract of sale provided that, in the event of any dispute arising at the port of discharge in regard to quality, it should appoint a representative on the spot to settle it, but it refused to do so on a dispute arising, the statement to plaintiffs, "We will be satisfied with any settlement you may make for us in adjusting the matter at point of destination," is authority to settle the matter through the allied firm in Chile. Appeal from circuit court, Multnomah county; Arthur L. Frazer, Judge. Action by Stephen Williamson and others, partners as Balfour, Guthrie & Co., against the North Pacific Lumber Company, a corporation. Judgment for defendant. Plaintiffs appeal. Reversed. This is an action for reclamation on two cargoes of lumber purchased by the plaintiffs from the defendant, and shipped to ports on the west coast of South America. The defendant is a corporation engaged in the manufacture and sale of lumber at Portland. Plaintiffs are merchants doing business there and at other Pacific Coast points, and are associated in business with the firm of Williamson, Balfour & Co. at Valparaiso, Chile. The Valparaiso firm receives orders in Chile for Oregon and Washington lumber, and sends them to the plaintiffs to be filled. The latter purchase the lumber from local manufacturers and ship it to Chile, where it is delivered to the buyer, and the profit and loss of the venture shared by the two companies. In February and March, 1896, the plaintiffs, to fill orders thus received, contracted with the defendant for two cargoes of lumber, in accordance with certain specifications, to be shipped on the ships Airlie and Ballochmyle to points on the coast of Chile. Each of the contracts contains the stipulation that, "in event of any dispute arising at port of discharge in regard to quality, sellers to appoint a representative on the spot to attend to and settle the same." After the Airlie had been loaded, it was discovered that by mistake some 40,000 feet of 4x12 lumber in excess of the amount called for by the specifications was included in her cargo. The defendant's attention was called to the matter, and it agreed that, if plaintiffs would take the excess, it "would stand good for anything that might crop up regarding it," or do "whatever was right in the matter." The cargo was thereupon accepted and paid for by the plaintiffs, but without inspection at Portland. The Airlie sailed in April, and reached her first port of discharge some time in June. On August 4th plaintiffs received from the Chilian firm information in regard to some difficulty about the stowage of her cargo, and immediately transmitted the same to defendant, with the following letter: "Portland, Or., . August 4, 1896. North Pacific Lumber Co., City-Dear Sirs: We inclose herewith some correspondence from Valparaiso in regard to difficulty with the Airlie cargo, and will be glad to hear what you have to say on the subject. Yours, truly, Balfour, Guthrie & Co." The Airlie, having discharged a part of her cargo at Coquimbo, arrived at Iquique, her final port of discharge, the latter part of July. When the 4x12 lumber was tendered to the parties who had ordered it, they declined to take the 40,000 feet of excess, because it was 63 P.-2 inferior in quality and not ordered. The Ballochmyle was loaded and left Portland about the 23d of May, and discharged the upper assortment of her cargo at Antofagasta in August, but the buyers refused to accept it because it did not conform in quality to that ordered. When the Valparaiso firm was informed of the controversy at the port of discharge concerning the quality of the two cargoes, it immediately cabled the plaintiffs to that effect and asked for instructions. The cablegram was received at Portland on August 20th, and Mr. Burns, the manager for the plaintiffs, immediately sent for the defendant's manager, Mr. Williams, but he was out of town at the time. Upon his return, on the 22d of August, he called at plaintiffs' office. Mr. Burns informed him of the intelligence plaintiffs had received from Chile as to the rejection of the lumber because of its inferior quality, and suggested that defendant send an agent down to settle the matter, or that the American consul or some other local person be appointed by it for that purpose. Mr. Williams declined to do this, saying it was impracticable, and, as plaintiffs contend, authorized them to adjust the matter. After Williams left the office, Burns telephoned to him, saying that he would like to have plaintiffs' authority in writing, and thereupon Williams sent to the plaintiffs the following letter: "Portland, Or., August 22, 1896. Messrs. Balfour, Guthrie & Co., City-Gentlemen: In reply to yours of the 4th inst., with correspondence relating to the Airlie cargo, referring to the manner in which it was loaded, will say that the specifications, as we received them, stated that the cargo was to be loaded in two lots, one underneath and one on top, and the lumber was furnished to the captain of the vessel in that way. In the portion to go underneath was some 140 M. feet, 12x12, with other lumber, some considerable of which was 40 feet long. He was not able to conveniently load such timber in the bottom of the vessel, and therefore loaded it between decks and on top. The writer on one occasion went aboard the vessel to see how the cargo was being loaded. but was informed that we had nothing whatever to do with the stowage of the vessel, that they knew nothing about there being two divisions of cargo, and that they did their business through Balfour, Guthrie & Company. However; we are satisfied that the vessel could have been unloaded properly at point of destination, as the lumber he had on deck was mostly 12x12, which could have remained in the vessel until the first division was discharged. Will say further that the cargoes of the Airlie and Ballochmyle were tallied by our regular tally man, a man of long experi ence, who says the lumber was all of firstclass quality in every particular. However, we will be satisfied with any settlement you may make for us in adjusting the matter at point of destination. Yours, truly, North Pacific Lumber Co., E. T. Williams, Vice |