Sprague v. Fisher , 184 Or. 1 ( 1948 )

One of the duties of the court, and in a sense one of its privileges, is to correct its own errors, once the court is convinced that error has been committed. To this end our rules provide for rehearings in appropriate cases so that contentions not advanced on the original submission may be made, arguments already pressed may be presented in a new light or with stronger emphasis and with greater persuasion, and fallacies in the reasoning of the court exposed. In the present case the petition for rehearing contains no contentions that may be said to be new, although fresh light has been thrown on some of the questions presented; and the petition, with the briefs and oral arguments in its support, does, in my opinion, clearly demonstrate that our opinion wrongly construed the legislation under consideration. That being so, as a member of the majority which rendered the original decision, there is no course open to me except to join in its correction.

The legislation is undoubtedly ambiguous and calls for judicial construction. If that were not so there would be no occasion and no warrant for resorting to administrative interpretation for aid in determining the legislative intent. The strongest argument for the view taken in the former majority opinion is that based upon the failure of the legislature in Ch. 466, Oregon Laws, 1947, to make specific disposition of the so-called "surplus" income tax revenues. The fact that various sums were directed to be transferred from the general fund to special accounts, and particularly that an amount not exceeding $5,000,000.00 was directed to be transferred "to an account in the general fund to be known as the property tax reduction account", leaving the remaining revenues, already collected or estimated, apparently undisposed of otherwise than as "a part of the general fund in the hands of the state treasurer", constituted the basis of a valid argument that such remaining revenues had not been "applied by law to some special purpose."

But, in my judgment, upon more mature consideration, we gave too much weight to that argument. The failure of the legislature to dispose specifically and expressly of the "surplus" did indeed introduce an ambiguity into the law, but it should not be held to be the controlling factor in view of other provisions of Ch. 466, and in view of Ch. 477, Oregon Laws, 1947, and the administrative construction. I see no way of reconciling the conclusion reached in the former decision with the legislative mandate "that such revenue * * * shall not affect the base for computing the limitation on such levy imposed by section 11, Art. XI, Oregon constitution." It would be useless to attempt to add anything to the clear and cogent exposition in the opinion of the Chief Justice of the effect which should properly be given to the matters to which I have referred.

But I deem it worthwhile to comment at somewhat greater length on the case of School District No. 1 v. Bingham, 174 Or. 540,149 P.2d 963, because it has a bearing on the present case which to me at least was not apparent until the argument on rehearing. It was then called to our attention for the first time that the legislation involved in that case contained an express provision which should remove all doubt as to the legislative purpose that income tax revenues may be used only as an offset to a levy on property.

In the Bingham case the court was called upon to construe Ch. 439, Oregon Laws, 1943, which provided for the transfer of an amount not to exceed $5,000,000.00 "derived from taxes on or measured by net income" to the state school support fund to be apportioned to the several counties and thence to the public school districts. Section 1 of this act provides in part:

"The amount received by each school district from this source in any year shall be fully applied to reduce the ad valorem property tax levied by the district for such year, as hereinafter provided, but shall not impair the tax base of the district under the limitation imposed by section 11, article XI, Oregon constitution."

In § 3 it is provided that "each county school superintendent shall determine and certify to the county assessor and to the county treasurer the amount to be paid for such year to each public school district of the county entitled to participate in the distribution of the county's apportionment of said fund". Section 4 reads as follows:

"The county assessor shall subtract from the tax levies of the several public school districts the respective amounts so certified by the county school superintendent, and shall extend on the assessment roll in each case no more than the remainder as the property tax levy of the district for the current fiscal year. Immediately on extension of all such tax levies, the county assessor shall certify to the county school superintendent and to the county treasurer the amounts of such levies as made by the several public school districts, the several amounts by which such levies were reduced under the provisions of this act and the respective remainders extended as the final property tax levies of such districts." (Italics added.)

The foregoing provisions — sustained in the Bingham case — delineate the procedure by which income tax moneys are to reduce the ad valorem property tax of the school districts and at the same time "not impair the tax base". This was to be accomplished by subtracting the amount of the income tax revenues from the district levy and extending only the remainder on the assessment roll — the very method which the Tax Commission insists it is not required to follow. The provisions of the income tax law in effect in 1943 as to preserving the state tax base and expressing the intention that income tax revenues should be applied to reduce the state tax levy on property, are identical with the provisions upon those subjects in the 1947 act. See, Oregon Laws, 1943, Ch. 441, § 1, and Oregon Laws, 1947, Ch. 466, § 1. And, so far as applicable, they are substantially identical with the comparable provisions of the 1943 act involved in the Bingham case quoted above. In that act the legislature spelled out in plain language how these two purposes of reducing the tax levy on property and maintaining the tax base were to be effected, and I think it cannot be assumed that the somewhat ambiguous language of the income tax law touching these matters means anything different from the explicit directions to the assessor in the school support law, or that the legislature intended that a different rule of property tax reduction through the use of income tax revenues should apply to the tax commission than to county assessors.

The Bingham decision therefore is well-nigh controlling authority on the proposition that income tax revenues may be used only as a deduction from or offset against a levy on property.

Beyond that, the Bingham case determines the validity of the procedure authorized by Ch. 477, Oregon Laws, 1947 — a question raised not by counsel but by members of this court, who doubted whether the levy of a tax which is never to be collected but is to be offset by income tax revenues is an exercise of "the power to levy a tax" within the meaning of Art. XI, § 11, Oregon Constitution. I shared those doubts, but have concluded that, to hold that the election provided for by Ch. 477 is not such an election as is contemplated by the constitutional amendment, would be contrary to the clear implications of the Bingham decision, which gives express approval to a tax levy that was never intended to be collected in a case involving the application of that amendment.

The petition for rehearing accurately says: "The basic issue in this case is not where the money should go as a matter of fiscal policy, but who is authorized as a matter of law todecide where it should go." This "basic issue" was obscured on the original presentation of the case by irrelevancies of which the case was stripped on the reargument.

It goes without saying that the only duty of the court is to ascertain the legislative intent from the language of the law, and when ascertained to give it effect. I am entirely satisfied that the decision now rendered is a proper discharge of that duty.