East Oregonian : E.O. (Pendleton, OR) 1888-current, 1906-08-23

W. " Ellis VI tne circuit court lot
Umatilla county, in the case of w. P.
Beser, respondent, VS.. Umatilla county,
appellant, Chief Justice r. S. Bean, in
an opinion rendered at Salem, held
the act of the Legislative assembly of
1905, ito tax all foreign sheep coming
into the state OF Oregon for the pur-
pose of pasturage or being driven
through the state" null and void be-
cause it is strictly revenue measure
and the sum required to be paid by the
owners of foreign sheep, tax, Is not
uniform or levied according to value.
The plaintiff is a resident Of WASH
ington county and the owner Of 100
head If sheep which were being driven
into Umatilla county for the purpose
of pasturage In the spring of 1905. The
stock inspector threatened to take pos
session of the sheep and sell them as
provided I'm the act unless the tax OF
20 cents a head was paid. In order to
avoid seizure and sale the plaintiff
paid the tax under protest and there
after brought this action to recover
the amount paid on the ground that
the law undef which 1t was exacted
was unconstitutional because not in
accord with section l of article o.
which provides that the rate of as
sessment and taxation shall be equal
and uniform. The plaintiff had judg-
mert In the court below and the de-
fendant appealed.
In deciding the principal issue OF
the case, which hinged upon the ques-
tlon of whether the sum exacted oper-
ated as a tax or license and whether
the power to regulate and control the
pasturage of foreign sheep comes with
In the police power of the state, the
court holds there is no doubt that the
keeping Of livestock within the state
lis under police regulation. "The state
may prohibit the running at large of
such animals" says the opinion, "and
compel the owners TO keep them with
in their Enclosures, and it has been
held that it may prohibit their graz
ing or being herded within certain pre-
scr!bed territory. And. as an incident
to the power to control, it may be that
the state can exact charge of fee for
The privilege of allowing stock to run
at large. But we do not think the law
iulGrr consideration is of that charac-
ter.
"Cenerally speaking, tax is
charge or burden imposed on persons
property for the support of the gov
ernment or for some specific purpos'
authorized by it. \ license is essen
, tally q grant of special privilege Il
one or more persons, not enjoyed b.
, citizens generally or. at least, not en-
. ioyed by the class of citizens to whicl
+. the license belongs.
"Wirhin these definitions a mer
tax on sheep of nonresident owner
cannot be said to be a license unies
c the payment of such tax confers som
e right or privilege upon such owner
= which otherwise would not exist. tn
:. law is entitled an act to tax all foreig
sheen coming into the state of Oregon
d ETC.. ana simply provides the amour
: of tax and the manner of its collection
g No special privileges are granted I
d the nonresident owner by reason
the payment of the tax, noEis che pay
a ment of such tax made a conditio
a precedent to the right to bring shee
n into the state. If indeed, such legisla
r ton would he valid.
"Nor does the failure TO pay tn
% tax render the pasturing Of sheep
the state legally any more htan IN
u failure of man to pay taxes upo
~ his farm renders the occupation
# farming illegal. The law does M
pretend TO impose any restraint upo
l. the sheep industry and no privilege
, granted by its terms. The burde
= imposed Is upon the property and m
.r upon the business, and applies ALL
r. to the man who brings his sheep in
the state to pasture them on land
10 his own or that of the government, al
,e the man who brings his sheep into Il
,s state to pasture them on the land
l. the state.
ic 1--WE are, therefore, forced to Il
lg conclusion that it is essentially re
enue law and void because the tax
as not uniform and equal nor levied wi
a. reference to the value Of the propert
IS, And such is the conclusion reach'
a by other courts upon substantially Il
a same character Of legislation"
r. Stanford University Opens Up.