which the Court of Appeals characterized as “harsh”
How later courts described this case
- which the Court of Appeals characterized as “harsh”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Stroh v. State Accident Insurance Fund, 261 Or. 117 (1972)
227 Or 486, 489, 360 P2d 778 (1961), overruled on other grounds by Stroh v. SAIF, 261 Or 117, 120, 492 P2d 472 (1972). (“We think that the word ‘may’ in this context is permissive in the sense that it expresses the grant of a remedy which, but for the statute, would not have existed.
The opinion
* On Appellant’s Petition eor Rehearing
SLOAN, J.,
dissenting.
Since I did not participate in the decision of this case I could not express my disagreement with it. The case is now here on motion for rehearing. Such a motion reaches all the court. It provides an opportunity to briefly express the reasons for disagreement.
ORS 314.460(1) says this:
«# # * .appeal from the determination of the commission upon the application made by the taxpayer for refund or revision of any tax, as provided for in ORS 314.455, may be taken by the taxpayer by filing a complaint against the commission in the circuit court of the county in which the taxpayer resides or has his principal place of business or in which is located the office of the commission and *497 by serving a true copy thereof upon the commission by registered mail within 60 days after notice by the commission of its determination has been received by the taxpayer * # *. Such appeal shall proceed in the manner of a suit in equity and shall be a trial de novo except that the issues of fact and law shall be restricted to those raised by the parties in the appeal to the commission. If the court finds that other issues are important to a ful determination of the controversy, it may remand the whole matter to the commission for further determination and the issuance of a new order. * * *”
The majority says that the service of the complaint “upon the commission by registered mail” is unequivocal and mandatory, 360 P2d 778 . The purpose of this statute was thereby defeated. That purpose was, and is, to give every aggrieved taxpayer easy access to the courts. The statute was not intended to create technical hurdles or to apply the construction given that the taxpayer must trod lightly and warily if he is to get into court. We should not say that the ¡statute requires strict compliance. We should say that the form of notice to the commission was permissive and not mandatory. And that any other equivalent or superior service otherwise provided by statute is sufficient.
In this case the taxpayer utilized a superior form of service provided by the statute (OPS 15.080) which, without restriction, establshes the method of serving summons in every kind of ease. That statute provides:
“* * * The summons shall be served by delvering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows:
a* * * * *
“(2) If against any county, incorporated city, school district, or other pubic corporation, commission or board in this state, to the clerk or *498 secretary thereof. If any snch commission or hoard does not have a clerk or secretary, to any member thereof.
^
That form of service should have been held sufficient.
Another problem is now presented by this case. I can express no judgment of solution but mention of the problem itself should be made. The majority takes the word “appeal” used in ORS 314.460(1) and applies it in the strict sense of the word. The majority implies that in this proceeding the court is only another step in the administrative process. No consideration is given to the remainder of the statute which says the judicial function shall be a trial de novo. A considerable difference in the exercise of judicial power appears to exist between a mere judicial review of an administrative finding and a judicial trial of facts and law. See Forkosch, Administrative Law, ch XVII, Judicial Review: Methods and Forms (1956); Bacon v. Rutland R. R. Co., 1914, 232 US 134 , 34 S Ct 283 , 58 L Ed 538 ; Jordan v. American Eagle Fire Ins. Co., (D C Cir, 1948) 169 F2d 281. ① The varied and complicated relationships of the judiciary to the entire administrative process should not be further scrambled by not defining the real kind of judicial review that we are talking about. The legislature and the courts might well be benefited in future deliberations if we would examine the question and not solve it by an assumption that may or may not be correct. If rehearing were allowed this problem could receive the attention it deserves.
I am authorized to say that O’Connell, J., joins in' this dissent.
Petition denied without opinion.
The authority is cited to indicate only a little of the treatment that has been given the problem mentioned.