Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-01
nBFGON SUPREME COURT DECISIONS.
P, Tex, Published BY Courtesy Of T. A Turner Reporter '
Supreme Court

treasury notes legal tender fol all
"debts" etc, offered TO pay their re-
spective taxes with that kind OF me-
dium Of exchange, but the sheriff, re-
fusing 20 receive it, they Instituted
mandamus proceedings to compel him
To accent such payment and 1t was
held that state taxes were not
debts" within the meaning OF the
federal statute relied upon. Whitea-
ker V. Haley, 2 Or l2S.
Thereafter the county treasurer OF
Lane county rendered to the state
treasurer United States treasury
notes in payment Of the taxes due
from that county, but the offer hay-
ing been rejected an action was IN
stituted by the state against that
county 20 recover as its portion OF
the public burden, S5,46O96 in gold
and silver coin" The cause having
been tried, an appeal from the judg-
ment was taken to this court which
held that a recovery could be had IN
the specie demanded. The opinion IN
that case, if any were announced IS
not published in our reports. From
the Judgment thus rendered, writ
of error was taken to the supreme
court of the United States which az
firmed the determination taken up
for review and held that the act OF
congress making United States notes
legal tender for debts had no ref
erence to taxes imposed by state au-
thority. Lane County V. Oregon, Z
Wall. Il. In deciding that case Mr..
Chief Justice Chase adopts language
from the case of Shaw v. Pickett, 26
vt. 482, 4S6, where it is said: "The
assessment of taxes does not create
a debt that can be enforced by suit,
or upon which a promise to pay in
terest can be implied. 1t Is a pro-
ceeding in invitum" The rule that a
tax levied on property has become
well established. Cooley, Tax I'D
ed.) II; 1 Desty, Tax Sec. 6; 27 Am
- Eng. Ency. Law I'D. ed) $50; 81
Cyc. 10.
A contrariety of judicial utterance
exists regarding the right to main
tain a suit or an action to recover
delinquent taxes when the statute
commanding the levy prescribing the
remedy to enforce the collection
Thus, notwithstanding the organic
law of Louisiana of 1879, declared
that delinquent taxes should be col.
lected without suit by a sale of the
property on which the tax was levied
1t was ruled that a valid claim
against a decedent's estate might be
made by municipal corporation fol
the payment of delinquent taxes, the
court holding that the award was MOI
a judgment, but the allowance Of q
legal demand which was to be palt
in due course of administration
Succession of Mercier. II L. R. A
817. In the notes to that case the
authorities are collated setting forti
the determinations of courts in favor
Of and opposed to the maintenance o.
suit or an action to recover delin
quent taxes. See also the case o.
State v. Georgia Co. 10 L. R. A. 4S5
Since a tax levied upon propert!
is not a debt, the burden imposed by
law for the support of government Il
not a sum of money due or owing by
agreement, and hence there exists NJ
concord Of understanding or inten
ton between the tax payer and /;
municipality regarding their respec
tive rights and duties, from which
can be implied a promise that forms
the basis of an action of assumsit.
Upon principle we conclude that al
our statute prescribes the manner O
collecting delinquent taxes levied OF
personal property, the maxim "ex
pressio unius est eXclusio alterius
governs making the remedy exclus
i've. 27 Am & Eng Ency. Law ed
ed) 1888; 81 Cyc. 1241. From thi!
conclusion 1t necessarily follows tha
after the levy Of tax on goods anC
chattels and before their seizure tt
satisfy the demand If the tax payel
removes to another county his per
sonal property or otherwise disposes
or 1t, no action can be maintained
against him for the recovery OF hi,
share Of the public burden, and thu
county levying the tax is remediless
II he has no real estate agains
which such tax can be charged.
Legal remedies cannot be created
ex necessitate rel by courts when NJ
mode of procedure is prescribed by
law, but relief for the correction O
the evil must be sought from the Law
making department of the state.
Believing that the conclusions o
law made by the trial court wer,
properly deducible from the finding,
of fact the judgment is affirmed.
Mr. Justice Burnett havin~ hearC
this cause in the lower court, tool
no part at the trial or in the consid
GRAFTON hereof.
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