Petition for A Writ of Certiorari — Western Tree Farms, Inc. v. Hood River County
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#UPREME COURT. U. & | oileoroa es
MAR 3 4969
1102 :
IN THE SUPREME COURT OF
THE UNITED STATES
WESTERN TREE FARMS, INC.
an Oregon corporation and
BRUCE V. DEARDORFF,
Vv.
HOOD RIVER COUNTY,
a municipal corporation,
PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF THE STATE OF OREGON
ERVIN W. POTTER
of Attorneys for Petitioner:
300 Pioneer Trust Building
Salem, Oregon 97301 eS
WILLIAM B. WYLLIE
300 Pioneer Trusi Building
Salem, Oregon * 97301
Of Attorneys for Petitioners
CARL R. NEIL ---
Ninth Floor, Loyalty Building
Portland, Oregon 97204
JOHN A, JELDERKS
Hood River County Courthouse
» Hood River, Oregon 97031
INDEX
Petition for Writ of Certiorari .......................
Opinions Below
hy
@
Jurisdiction
Questions Presented
Statutes and Constitutional Provisions Involved ....
Statement of the Case
I. Facts
II. How Federal Question Presented
Oo fF & WO WO WH KK
Reasons for Granting the WTrit ..................--.0-+.--
Conclusion
—_
to ©
Appendix A-1 Judgment - Hood River Circuit
Court No. 5505; (Oregon Supreme Court
No. P-2207)
13
Appendix A-2 Judgment - Hood River Circuit
Court No. 5597; (Oregon Supreme Court
No. P-2208) .
15
Appendix A-3 Judgment - Hood River Circuit
Court No. 5602; (Oregon Supreme Court
No. P-2209)
Appendix A-+ Judgment - Hood River Circuit
Court No. 5776; (Oregon Supreme Court
No. P-2210)
Appendix B-1 Opinion - Oregon Supreme
Court No. P-2207 .
Appendix B-2 Opinion - Oregon Supreme
Court No. P-2208
Appendix B-3 Opinion - Oregon Supreme
Court No. P-2209
22
Page
Appendix B-4 a - aes: Supreme
REE POU ENED cresisedbinsbasiencecesdtsiockecnsnconnsoaecace 23
Appendix C-1 Decree - Te Supreme
SE US BINT cvbreielioltncmictantwiersseessonsceosnecesvees 24:
Appendix C-2 Decree - Oregon Supreme
RIN TR, ORIN | wicca ic wnscactnnccenscciciscesncnsecenece ppibes 26
Appendix C-3 Decree - Oregon Supreme
Ts SUNG. PIII hckcctesinvoniablbsiesieccminsssacesecsevevabis 28
Appendix C-4 Decree - _en Supreme
AUNED SOL PUMICE Sdinioeisaicncncescstvsasckiesbsccesecsnsecuense 30
Appendix D Opinion of Oregon Supreme
Court in Hood River County v. Dabney ........... 32
TABLE OF CASES
Armstrong v. Manzo, 380 U.S. 345,
85 S.Ct. 1187 (1965) ..
Covey v. Town of Somers, 351 U.S. 141,
76 S.Ct. 724 (1956)
Evergreen Timber Co. v. Clackamas County,
235 Or. 552, 385 P.2d 1009 (1963) ....8, 37, 43, 48
Hood River County v. Dabney, 246 Or. 14,
423 P.2d 954 (1967) ill wD, 6, 21, 22, 23
Hood River County v. Northern Pacific Railway,
87 Or. Adv. Sh. 721, » eseeeey 448 P.2d
520 (1968) .
Morgan v. Board os Forestry, 86 Or. Adv. Sh. 1053,
BR ett » 443 P.2d 236 (1968)
Mullane v. Central Hanover Trust Co.,
339 U.S. 306, 70 Sup. Ct. 652 (1950)
Schroeder v. City of New York,
371 U.S. 208, 83 S.Ct. 278 (1962)
Walker v. City of Hutchinson,
352 U.S. 112, 77 S.Ct. 200 (1956)
Western Tree Farms ». Hood River irs f
87 Or. Adv. Sh. £91,
518 (1968) ..... p
STATUTES AND CONSTITUTIONAL PROVISIONS
ORS 312.230 seosesserseeeey 85 36, 39, 42, 43, 46, 47
ORS 312.230(1), (3)
28 U.S.C. $§ 1257(3)
U.S. Const. araend XIV $ 1
IN THE SUPREME COURT OF
THE UNITED STATES
OcToBER TERM, 1968
WESTERN TREE FARMS, INC.
an Oregon corporation and
BRUCE V. DEARDORFF,
Petitioners
v.
HOOD RIVER COUNTY,
a municipal corporation,
Respondent.
PETITION FOR WRIT OF CERTIORARI
Petitioners pray that a writ of certiorari issue to
review four decrees of the Supreme Court of the State
of Oregon. Three of the decrees were entered Decem-
ber 11, 1968; the fourth December 18, 1968. All four
cases involve identical or closely related questions.
Accordingly, this petition covers all four cases.
OPINIONS BELOW
The opinions of the Supreme Court of the State of
Oregon are reported at:
(1) 87 Oregon Advance Sheets 591, ...... GP, cesses .
448 P.2d 518 (1968)."
‘Western Tree Farms, Inc. v. Hood River County, Ore. Sup. Ct. No. P-2208.
2
(2) 87 Oregon Advance Sheets 593, ...... a .
448 P.2d 519 (1968).?
(3) 87 Oregon Advance Sheets 595, ...... en .
448 P.2d 519 (1968).°
(4) 87 Oregon Advance Sheets 721, ...... : ;
448 P.2d 520 (1968).*
The Circuit Court of the State of Oregon for Hood
River County did not deliver any opinion. Copies of
its judgments which were ‘appealed to the Oregon
Supreme Court are attached hereto as Appendices A-1,
A-2, A-3 and A-4.
Copies of the opinions of the Oregon Supreme Court
are attached hereto as Appendices B-1, 5-2, B-3 and
B-4. Attached hereto as Appendices C-1, C-2, C-3 and
C4 are the copies of decrees of the Oregon Supreme
Court from which review is sought. A copy of the
vpinion of the Oregon Supreme Court in Hood River
County v. Dabney, 246 Or. 14, 423 P.2d 954 (1967)
upon which the Oregon court relied in deciding these
cases is attached as Appendix D.
JURISDICTION
Three of the decrees sought to be reviewed were
entered December 11, 1968; the fourth December 18,
1968. No rehearing was requested and no order was
2Western Tree Farms, Inc. v. Hood River County, Ore. Sup. Ct. No. P-2209.
3Hood River County v. Western Tree Farms, Inc., Ore. Sup. Ct. No. P-2210.
4Hood River County v. Northern Pacific Ry., Ore. Sup. Ct. No. P-2207.
entered respecting a rehearing, nor has any order been
entered granting an extension of time within which
to petition for certiorari. The jurisdiction of this court
is invoked under 28 U.S.C. Section 1257(3).
QUESTIONS PRESENTED
1. Is a statute of limitations unconstitutional if it
is held to bar an attack on a decree which is void
because it is based upon notice which failed to meet
the minimum standards required by the due process
clause of the United States Constitution?
2. Ina tax foreclosure proceeding does a published
notice which fails to name the correct property owner
or which contains an erroneous description of the
property, or both, satisfy the requirements of due pro-
cess if the means of giving better notice are readily
available but no other notice is given?
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
This case involves the validity of sections 312.230
(1), (3) of the Oregon Revised Statutes which provide:
“(1) Every action, suit or proceeding, com-
menced for the purpose of determining the validity
of a sale of real property on foreclosure for de-
linquent taxes, or to quiet title against such sale,
4
or to remove the cloud thereof, or to recover
possession of the property, shall be commenced
within two years from the date of the judgment
and decree of foreclosure and sale to the county,
or within six months from June 1, 1961, which-
ever is the later.
eh eK K
““(3) For all purposes this section shall be con-
strued as a statute of prescription as well as a
statute of limitation.”
These sections are found in Volume 2 at page 1100
of the Oregon Revised Statutes.
Also involved is the due process clause of section 1
of the Fourteenth Amendment to the United States
Constitution which provides:
‘““* * * nor shall any state deprive any person of
life, liberty, or property, without due process of
law * * *” U.S.C.A., Const., Amend. 14, ‘Due
Process” p. 4.
STATEMENT OF THE CASE
I. FACTS
' This case involves a number of tax foreclosures in-
stituted by Hood River County becween 1926 and 1934.
In each foreclosure, notice was given by publication
and no other notice was ever given. In each case the
name and address of the owner appeared on the tax
rolls. Each of the published notices failed to name the
owner or toe properly describe the property.® In several,
the published notice failed to do either. The petitioners
are the successors in interest to the persons who owned
the properties at the time of the foreclosures.
Petitioners sought to quiet their title to the disputed
properties and to remove the cloud of the foreclosures
from their titles. With their initial pleading they ten-
dered or offered to tender all past due taxes on the
disputed properties. The respondent, Hood River County,
demurred to the respondents’ pleadings on the grounds
they failed to state a cause of suit and that they were
barred by a statute of limitations. The demurrers were
sustained and a decree was entered in favor of Hood
River County after petitioners elected not to plead fur-
ther.
SThe defects in the published notices are set out in tabular form below.
Where an entry of “not applicable” appears the published notice was correct
in that particular.
NAME IN DESCRIPTION IN
‘ PUBLISHED DESCRIPTION OF PUBLISHED
NAME OF OWNER NOTICE PROPERTY NOTICE
Charles A. Meyers H. W. Peterson Not applicable Not applicable
Eva L. Troeh Greenpoint S 1/2 of S1/ of NE 1/4 - SE 1/4
Orchards SE 1/4 of Sec. 28 Sec. 28.
Twp 2N,R. 8 E
of W.M.
Georgianna Ash Greenpoint N 1/2 of SE 1/4 NE 1/4 - SE 1/4
Orchards of Sec. 28 Sec. 28.
Estate of K. L. Dumble Not applicable Not applicable
Kate C. Dumble
H. L. Dumble K. L. Dumble Not applicable Not applicable
Ellen Ackerman Not applicable Govt. Lot 1 & SE Lot 1 & SE 1/4,
1/4 of NE 1/4 and NE 1/4 & SE 1/4-
SE 1/4 of SE 1/4 Sec. 41 N., 11 E
of Sec. 4, Twp. 1 115.97 acres
R. 11 E, of W.M.
a a
6
The Oregon Supreme Court ruled that the Circuit
Court had correctly sustained the demurrers. It assumed
the notice did not satisty due process but held that
Oregon’s special statute of limitations applicable to
tax foreclosures barred any attack on the foreclosure
proceedings.
II. HOW FEDERAL QUESTION PRESENTED
The federal questions sought to be reviewed here
were decided by the Oregon Supreme Court. In Western
Tree Farms v. Hood River County, 87 Or. Adv. Sh.
591, ...... Or. ....... 448 P.2d 518 (1968), the court de-
clared:
“Plaintiff contends that the tax foreclosure pro-
ceeding was void on the ground that the published
summons in that proceeding was insufficient to
give notice to the owner of the property and there-
fore, the proceeding did not constitute due process
of law as required by the Fourteenth Amendment
of the United States Constitution. [Footnote omit-
ted]
“Assuming, without deciding, that the notice was
not sufficient to satisfy due process requirements,
nevertheless plaintiff was barred from attacking
the tax foreclosure proceedings by the statute of
limitations prescribed in ORS 312.230(1) for the
reasons set out in Hood River County v. Dabney,
246 Or. 14, 423, P.2d 954 (1967).” Appendix B-1
In each of the other three cases the decision was
almost identical to that quoted above, and in Hood
if
1 3
7
River County v. Northern Pacific Railway, 87 Or. Adv.
Sh. 781, paneer , 448 P.2d 520 (1968) the court
noted that all of the decisions were the same. (See
Appendix B-2, B-3 and B-4).
Appellants first challenged the constitutionality of
the published notice in their first pleadings filed in
each case. In two cases the issue was raised in com-
plaints and in two cases in counterclaims. Each of the
allegations was essentially the same and declared in
material part:
‘“‘That said purported sheriff’s deed and foreclosure
proceedings, as aforesaid, were and are void and
a nullity and without due process of law... .”
Petitioners first attacked the constitutionality of the
statute of limitations, section 312.230 of the Oregon
Revised Statutes, in its brief on appeal to the Oregon
Supreme Court. In each of the four briefs the first
assignment of error alleged that the Circuit Court had
erred in sustaining the demurrer to petitioners’ plead-
ings. In each case the fourth point raised under that
assignment of error declared:
“Dictum in recent decisions of this court if applied
to the instant case would result in a violation of
the [petitioners’] rights under the Fourteenth
Amendment of the United States Constitution.”
Following the point is a citation to the Fourteenth
Amendment to the United States Constitution, to the
Oregon Statute of limitations applicable to foreclosures,
8
Ore. Rev. Stat. 312.230, and a number of cases which
in dictum suggest that the statute of limitations can
bar redress even for constitutional deficiencies.
In the “Questions Presented” portions of petitioners’
briefs to the Oregon Supreme Court, the issue was raised
as follows:
“Did the summons under attack here comply with
the minimum standards of due process required
by the United States Constitution and if not, is
it now subject to attack?”
This issue was not raised in the Circuit Court because
at the time of the Circuit Court proceedings the Oregon
Supreme Court decision in Evergreen Timber Co. v.
Clackamas County, 235 Or. 552, 385 P.2d 1009 (1963)
held that the statute of limitations did not apply to
proceedings in which the published notice contained
errors like those in the instant case. That case remained
the law in Oregon until the case of Morgan v. Board
of Forestry, 86 Or. Adv. Sh. 1053, ...... a » 443
P.2d 236 (July 16, 1968).
REASONS FOR GRANTING THE WRIT
This petition presents the important issue of whether
a statute of limitations may be used to avoid or “‘cure”
a violation of due process resulting from the failure
to give a party notice of a judicial proceeding. Many
states have curative statutes much. like the one here.
9
One such provision was considered by the court in
Covey v. Town of Somers, 351 U.S. 141, 76 S. Ct. 724
(1956). However, the court did not find it necessary
to pass on its validity.
The precise question presented here has never been
decided by this court. It has decided a number of cases
in which the principles controlling this case have been
enunciated. Those principles are:
1. Absent notice reasonable calculated to notify
interested parties of the action against them no pro-
ceeding can be accorded finality.
2. <A party deprived of the notice required by
due process must be restored to the position he would
have occupied had due process been accorded him
in the first place.
The decisions of the Oregon Supreme Court in the
instant cases are in direct conflict with both those
principles.
In Schroeder v. City of New York, 371 U.S. 208, 83
S. Ct. 278 (1962), the court held that a property owner
who had not received adequate notice of a condemna-
tion could attack the proceeding even though the time
had expired in which to file a claim for additional
compensation under state law. The court grounded
its decision on the due process clause of the United
States Constitution and held that to apply the statute
10
of limitations would be to deprive the owner of her
property without due process of law.
The court in Walker v. City of Hutchinson, 352 U.S.
112, 77 S. Ct. 200 (1956) reached the same result.
There it allowed an attack on a condemnation pro-
ceeding by a landowner. Because he had not received
the notice required by the due process clause the court
held that he was not limited to the time permitted
by the state statute in which to attack the proceeding.
In Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187
(1965), the court held that a party deprived of the
notice required by due process must be restored to
the position he would have occupied had due process
been accorded him in the first place.
The decision below would accord finality to a judi-
cial proceeding of which a party had no notice. In
addition, the court below did not restore the petitioners
to the position they would have occupied had due
process been accorded them. Instead it held that they
were barred by the statute of limitations from any
redress for the violation of their constitutional rights.
In each of the four cases the Oregon Supreme Court
assumed that the erroneous published notice violated
due process. It was right.
To meet the requirements of due process, notice
must be reasonably calculated under all the circum-
stances to apprise interested parties of the pendency
11
of the action. Notice by publication is at best a poor
method of warning those whose interests may be ad-
versely affected by litigation. When it is used the warn-
ing should not be muffled by ambiguity.
In Mullane v. Centrai Hanover Trust Co., 339 U.S.
306, 70 Sup. Ct. 652 (1950), this court prescribed the
constitutional requirements for notice. The court de-
clared:
“The reasonableness and hence the constitutional
validity of any chosen method may be defended
on the ground that it is reasonably certain to
inform those affected [citations omitted] or where
conditions do not reasonably permit such notice,
that the form chosen is not substantially less likely
to bring home notice than other of the feasible
and customary substitutes.” 339 U.S. at 315, 70
Sup. Ct. at 657.
In Walker v. City of Hutchinson, 352 U.S. 112, 77
Sup. Ct. 200 (1956) and Schroeder v. City of New York,
371 U.S. 208, 83 Sup. Ct. 278 (1962), the court observed
that newspaper publication rarely informs the land-
owner of proceedings against his property.
Here the county knew the names and addresses of
the property owners. It had the means to give better
notice than is provided by publication. It chose not
to do so. The notices suffered all of the inherent limi-
tations of notice by publication and in addition they
SENTERO TTY REL, APP TET, Ore eng
12
were erroneous. It is submitted that due process re-
quires more.
This case involves an important question of public
policy which should be settled. There are many statutes
which seek to cure defects in judicial proceedings. They
have not been construed to bar attacks on proceedings
which violate due process. The decisions of the Oregon
Supreme Court if permitted to stand would sanction
the taking of property without compensation and with-
out due process.
The issues raised in this case are identical to those
presented in Morgan v. Board of Forestry which is
now pending on appeal to this court as clerk’s docket
number 632 (October Term 1968).
CONCLUSION
For the foregoing reasons, this petition for a writ
of certiorari should be granted.
Respectfully submitted,
ErRvIN W. PoTTeR
WiLuiaM B. WYLLIE
Of counsel for Petitioners
300 Pioneer Trust Building
Salem, Oregon 97301
13
APPENDIX A-1
JUDGMENT
it is ORDERED, ADJUDGED AND DECREED as
follows:
1. The defendants mentioned in the foregoing
paragraph and each of them have no right, title, estate,
lien or interest whosoever as against Hood River County
in or to the real property situated in Hood River County,
State of Oregon, which is described in Exhibit “A” .
attached hereto and by this reference incorporated
herein, or any part or parcel thereof, and that each
and every claim of said defendants to some right, title,
interest, estate or lien in or to the said real property
or any part thereof is hereby adjudged and declared
null and void as against Hood River County, its suc-
cessors and assigns; and
2. Hood River County is hereby decreed to be the
owner in fee simple, as against the defendants listed
above herein, of the real property described in Exhibit
“A” attached hereto, free and clear of any right or
claim whatsoever on the part of the aforesaid defend-
ants, or any of them, or their heirs, or assigns; and
3. That each and all of the aferesaid defendants
and each and every person claiming by, through or
under them, or any of them, any right, title, estate,
lien or interest in the real property described herein
14
be and hereby is forever enjoined, restrained and bar-
red from asserting, attempting to establish or claiming
any right, title, estate, lien or interest whatsoever in
or to the said real property, or any part or parcel
thereof, and that the title of Hood River County to
said premises, as against said defendants, their heirs
and assigns, be and hereby is forever quieted and set
at rest.
DATED this 10th day of January, 1968.
/s/ M. W. WiLx1nson
Circuit Judge
“of eeeeeeeeera
SBeeBpekeaeegaean & ff |
15
APPENDix A-2
JUDGMENT
it is ORDERED, ADJUDGED AND DECREED that
defendant Hood River County have judgment against
plaintiff on the pleadings, and that plaintiff's amended
complaint and this cause be and the same hereby are
dismissed.
DATED this 10th day of January, 1968.
/s/ M. W. WiLxrnson
Circuit Judge
16
APPENDIX A-3
JUDGMENT
The court having heretofore sustained the demurrer
of defendant Hood River County to plaintiff’s amended
complaint by order dated November 8, 1967, and plain-
tiff having filed herein its election not to plead further,
and good cause appearing, therefore, for entry of judg-
ment on the pleadings in favor of defendart, now
therefore it is
ORDERED, ADJUDGED AND DECREED that de-
fendant Hood River County have judgment against
plaintiff on pleadings, and that plaintiff's amended
complaint and this cause be and they hereby are dis-
missed.
Dated this 10th day of January, 1968.
/s/ M. W. Wiikinson
Circuit Judge
17
APPENDIX A-+
JUDGMENT
was entered which, omitting recitals, is as follows:
ORDERED, ADJUDGED AND DECREED as follows:
1. The Interlocutory Decree heretofore entered by
the Court on August 4, 1967, upon stipulation, award-
ing plaintiff relief on its third, fourth, fifth, ninth and
tenth causes of suit be and hereby is made final.
2. The above named refendants, and each of them,
have no right, title, estate, lien or interest whatsoever
as against Hood River County in or to the real property
which is the subject of the first, second, sixth, seventh
and eighth causes of suit set forth in plaintiff's com-
plaint being real property situated in the county of
Hood River, State of Oregon, described as follows, to-
wit:
The North half of the Southeast quarter of Section
28, Township 2 North, Range 9 Last of the Wil-
lamette Meridian.
The Northeast quarter of the Southeast quarter
- and the West half of the West half of the Southeast
quarter of the Southeast quarter of Section 19,
Township 2 North, Range 10 East of the Willamette
Meridian, and that portion of the Southwest quar-
ter of the Northwest quarter and the Northwest
quarter of the Southwest quarter lying Westerly
of the creek known as Ditch Creek in Section 20,
Township 2 North, Range 10 East of the Wil-
lamette Meridian.
18
A parcel of land situated in Section 6, Township
1 North, Range 11 East of the Willamette Meridian,
more particularly described as follows:
Beginning at a point in the North line of Section
6, Township 1 North, Range 11 East of the Wil-
lamette Meridian that is 1609.7 feet West of the
Northeast corner of said Section 6; thence Southerly
parallel with the West line of the Northeast quar-
ter of the Northeast quarter of said Section 6 a
distance of 651.4 feet; thence Westerly a distance
of 1035 feet, more or less, to a point in the West
line of Government Lot 2 of the said Section 6
that is 651.4 feet Southerly of the North quarter
corner of said Section 6; thence Northerly 651.4
feet to the said North quarter corner; thence East
1030.3 feet, more or less, to the poz:it of beginning.
Government Lots 2 and 3 and the Southeast quar-
ter of the Northwest quarter of Section 18, Town-
ship 1 North, Range 11 East of the Willamette
Meridian.
Government Lot 1 and the Southeast quarter of
the Northeast quarter and the Southeast quarter
of the Southeast quarter of Section 4, Township
1 North, Range 11 East of the Willamette Meri-
dian;
or any part or parcel thereof, and that each and every
claim of any of said defendants to some right, title,
interest, estate or lien in or to the said real property
or any part thereof is hereby adjudged and declared
null and void as against Hood River County, its suc-
cessors and assigns; and
3. Hood River County is hereby decreed to be the
owner in fee simple, as against the defendants listed
ee
19
above herein, of the real property described above,
free and clear of any right or claim whatsoever on
the part of the aforesaid defendants, or any of them,
or their heirs or assigns; and
4. That each and all of the aforesaid defendants,
and each aid every person claiming by, through or
under them, or any of them, any right, title, estate,
lien or interest in the real property described herein
be and hereby is forever enjoined, restrained and
barred from asserting, attempting to establish or claim-
ing any right, title, estate, lien or interest whatsoever
in or to the said real property, or any part or parcel
thereof, and that the title of Hood River County to
said premises, as against said defendants, their heirs
and assigns, be and hereby is forever quieted and set
at rest.
DATED this 10th day of January, 1968.
/s/ M. W. WiLkInson
Circuit Judge
20
APPENDIX B-1
PER CURIAM.
This case is identical to that of Hood River County
v. Western Tree Farms, Inc., et al, ...... ene a
i , and Western Tree Farms, Inc. v. Hood River
County, .....- __ ORO nee P2d ......, both decided Decem-
ber 11, 1968.
Defendants seek the overruling of Hood River County
v. Dabney, 1967, 246 Or 14, 423 P2d 954. This we
have declined to do.
Affirmed.
BEEBE BBBBBE SBE
re CLIP SPREE ——e — — .
21
APPENDIX B-2
O’CONNELL, J.
Plaintiff appeals from a decree dismissing its suit
to quiet title to certain real property in Hood River
county.
Defendant county claims title through a sheriff’s
deed executed at the conclusion of a tax fereclosure
proceeding instituted in 1928. Plaintiff contends that
the tax foreclosure proceeding was void on the ground
that the published summons in that proceeding was
insufficient to give notice te the owner of the property
and, therefore, the proceeding did not constitute due
process of law as required by the Fourteenth Amend-
ment of the United States Constitution.'
Assuming, without deciding, that the notice was not
adequate to satisfy due process requirements, never-
theless plaintiff was barred from attacking the tax
foreclosure proceedings by the running of the statute
of limitations prescribed in ORS 312.230(1) for the
reasons set out in Hood River County v. ied 246
Or 14, 423 P2d 954 (1967).
Affirmed.
The summons named H. W. Peterson as defendant when in fact Charles A‘
Meyers was at that time the owner of the property. The county had notice of
Meyer’s ownership because the tax rolls showed that the property belonged to
C. A. Meyers.
The summons is also alleged to be defective because of failure to comply
with several statutory requirements governing the issuance of such summonses.
ee nl
22
APPENDIX B-3
O’CONNELL, J.
This is a suit to quiet title to certain real property
in Hood River county. Plaintiff appeals from a decree
dismissing plaintiff’s suit.
Defendant’s claim to title is based upon a tax fore-
closure proceeding instituted in 1926 which resulted
in the execution of a sheriff’s deed purporting to con-
vey the property in question to defendant. Plaintiff
contends that the tax foreclosure proceeding was void
on the ground that the summons published in the tax
foreclosure proceedings did not correctly describe the
property in question and did not name as. owner the
person whose name appeared on the tax roll at that
time.
Assuming, without deciding, that the summons was
not sufficient to constitute notice of the foreclosure
proceeding, plaintiff was barred from attacking the
proceeding by the running of the statute of limitations
prescribed in ORS 312.230(1). The present case is
controlled by Hood River County v. Dabney, 246 Or
14, 423 P2d 954 (1967).
Affirmed.
23
APPENDIX B-+
DENECKE, J.
The plaintiff county filed a suit to quiet title to
several parcels of property. The defendants counter-
claimed asserting ownership of four of the parcels.
The defendants’ claim is based upon the alleged in-
validity of the tax foreclosure proceedings through
which the county claims title. The county demurred
to the counterclaims upon the ground that they failed
to state causes of suit and were barred by the statute
of limitations. The trial court sustained the demurrers,
defendants refused to plead further, the counterclaims
were dismissed, and a decree was entered quieting
plaintiff’s title. The defendants appeal.
The foreclosure proceedings are claimed to be void.
because the published summons incorrectly described
the property foreclosed or incorrectly described the
owner of the property foreclosed.
Whether or not the defective summons constituted
adequate notice to the owners of the properties, the
defendants are barred from maintaining their counter-
claims because the statute of limitations had run. ORS
312.230(1).' We so held in Hood River County v. Dab-
ney, 246 Or 14, 423 P2d 954 (1967).
Affirmed.
1“Every action, suit or proceeding, commenced for the purpose of deter-
mining the validity of a sale of real property on foreclosure for delinquent taxes,
or to quiet title against such sale, or to remove the cloud thereof, or to recover
possession of the property, shall be commenced within two years from the date
of the judgment and decree of foreclosure and sale to the county, or within six
months from June 1, 1961, whichever is the later.”
24
APPENDIX C-1
BE IT REMEMBERED that at a regular term of
the SUPREME COURT of the State of Oregon begun
and held at the courtroom in the city of Salem on
the first Monday, the 7th day of October, 1968,
WHEREUPON on this WEDNESDAY, the 18th day of
DECEMBER, 1968, the same being the 33rd judicial
day of said term, when the following proceedings were
had:
HOOD RIVER COUNTY,
Respondent
v.
NORTHERN PACIFIC RAILWAY Appeal from
COMPANY, a corporation, BRUCE HOOD
DEARDORFF as the substituted de-
fendant for Glen B. Marsh, individ- RIVER
ually and as Trustee, GORDON H. County
BOYINGTON and ALICE BOYING-
TON, husband and wife, VIRGINIA No. 2207
P. VINSON, GERRY E. WOOLF and
HELEN WOOLF, husband and wife,
Appellants
This cause on October 28, 1968, at Pendleton, having
been duly argued and submitted upon and concerning
all questions arising upon the record and then reserved
for further consideration, and the court having fully
considered all said questions as well as suggestions of
counsel in their argument and briefs finds there is not
error as alleged.
a
25
IT THEREFORE IS CONSIDERED, ORDERED and
DECREED that the judgment of the court below
rendered and entered in this cause be and the same
hereby is in all things affirmed.
Appellants having given an undertaking on appeal
with Western Surety Company as surety conditioned
that appellants will pay all damages, custs and dis-
bursements which may be avvarded against them on
the appeal,
IT THEREFORE IS ORDERED that respondent have
and recover of and from appellants and their surety
its costs and disbursements in this court taxed at $
IT FURTHER IS ORDERED that this cause be re-
manded to the court below from which the appeal
was taken with directions to enter a decree in accord-
ance herewith.
26
APPENDIX C-2
BE IT REMEMBERED that at a regular term of the
SUPREME COURT of the State of Oregon begun and
held at the courtroom in the city of Salem on the first
Monday, the 7th day of OCTOBER, 1968, WHERE-
UPON on this WEDNESDAY, the 11th day of DECEM-
BER, 1968, the same being the 3ist judicial day of
said term, when the following proceedings were had:
WESTERN TREE FARMS, INC., an
Oregon corporation, Appeal from
v.
RIVER
HOOD RIVER COUNTY, a municipal
corporation, and political subdivision Co:nty
of the State of Oregon, P-2208
Respondent
This cause on October 28, 1968, at Pendleton, having
been duly argued and submitted upon and concerning
all questions arising upon the record and then reserved
for further consideration, end the court having fully
considered all said questions as well as suggestions of
counsel in their argument and briefs finds there is not
error as alleged.
IT THEREFORE IS CONSIDERED, ORDERED and
DECREED that the judgment of the court below ren-
dered and entered in this cause be and the same hereby
is in all things affirmed.
27
Appellant having given an undertaking on appeal
with Western Surety Company as surety conditioned
that appellant will pay all damages, costs and dis-
bursements which may be awarded against it on the
appeal,
IT THEREFORE IS ORDERED that respondent have
and recover of and from appellant and its surety its
costs and disbursements in this court taxed at $
IT FURTHER IS ORDERED that this cause be re-
manded to the court below from which the appeal
was taken with directions to enter a decree in accord-
ance herewith.
PM aE DO BOLE SS REALE: 1 OEE AAT GAME LITE TELE! ANE L ES PLR, LOE
APPENDIX C-3
BE IT REMEMBERED that at a regular term of the
SUPREME COURT of the State of Oregon begun and
held at the courtroom in the city of Salem on the first
Monday, the 7th day of OCTOBER, 1968, WHERE-
UPON on this WEDNESDAY, the 11th day of DE-
CEMBER, 1968, the same being the 31st judicial day
of said term, when the following proceedings were had:
WESTERN TREE FARMS, INC., an
Oregon corporation, Appeal from
Appellant HOOD
v. RIVER
Coun
HOOD RIVER COUNTY, Pg, ae
Respondent
This cause on October 28, 1968, at Pendleton, hav-
ing been duly argued and submitted upon and con-
cerning all questions arising upon the record and then
reserved for further consideration, and the court hav-
ing fully considered all said questions as well as sug-
gestions of counsel in their argument and briefs finds
there is not error as alleged.
IT THEREFORE IS CONSIDERED, ORDERED and
DECREED that the judgment of the court beiow ren-
dered and entered in this cause be and the same hereby
is in all things affirmed.
Appellant having given an undertaking on appeal
with Western Surety Company as surety conditioned
DOTS REMIT ALO ERE eee, Ob POLE RNB IY GNIAR gt I BE entire fy “age
, 99
that appellant will pay all damages, costs and dis-
bursements which may be awarded against it on the
appeal,
IT THEREFORE IS ORDERED that respondent have
and recover of and from appellant and its surety its
costs and disbursements in this court taxed at $
IT FURTHER IS ORDERED that this cause be re-
manded to the court below from which the appeal
was taken with directions to enter a decree in accord-
ance herewith.
30
APPENDIX C-4
BE IT REMEMBERED that at a regular term of the
SUPREME COURT of the State of Oregon begun and
held at the courtroom in the city of Salem on the first
Monday, the 7th day-of OCTOBER, 1968, WHERE-
UPON on this WEDNESDAY, the 11th day of DE-
CEMBER, 1968, the same being the 31st judicial day
of said term, when the following proceedings were had:
HOOD RIVER COUNTY,
Respondent
Appeal from
WESTERN TREE FARMS, INC., a HOOD
corporation; EVERGREEN TIMBER RIVER
COMPANY, INC., a corporation; and County
BRUCE V. DEARDORFF and
LORENA DEARDORFF, husband and No. P-2210
wife,
Appellanis
This cause on October 28, 1968, at Pendleton, hav-
ing been duly argued and submitted upon and con-
cerning all questions arising upon the record and then
reserved for further consideration, and the court hav-
ing fully considered all said questions as well as sug-
gestions of counsel in their argument and briefs finds
there is not error as alleged.
IT THEREFORE IS CONSIDERED, ORDERED and
DECREED that the judgment of the court below ren-
31
dered and entered in this cause be and the same hereby
is in all things affirmed.
_ Appellants having given an undertaking on appeal
with Western Surety Company as surety conditioned
that appellants will pay all damages, costs and dis-
bursements which may be awarded against them on
the appeal,
IT THEREFORE IS ORDERED that respondent have
and recover of and from appellants and their surety
its costs and disbursements in this court taxed at $
IT FURTHER IS ORDERED that this cause be re-
manded to the court below from which the appeal
was taken with directions to enter a decree in accord-
ance herewith.
O’CONNELL, J.
This is a suit to quiet title to a tract of land located
in Hood River county. Defendants appeal from a de-
cree in favor of plaintiff.
In September, 1928, proceedings were commenced
by Hood River county to foreclose delinquent tax liens
against certain parcels of real property, including an
80-acre tract owned by W. E. Dabney, defendants’
predecessor in interest. The foreclosure proceedings
correctly described the property in question and named
W. E. Dabney as the owner. A summons was published
directing W. E. Dabney to appear within six weeks
from the date of the first publication of the summons.
The statutes then in effect, however, required notice
of at least 60 days from the date of first publication.
W. E. Dabney did not appear in the tax foreclosure
proceeding and a decree of foreclosure was entered
against the property on November 28, 1928, which
was 76 days after the date of the first publication
of the summons.
At the present time the entire 80-acre tract consists
of unenclosed mountainous timberland, the only means
of vehicular access to which is a dirt fire-patrol road.
in the thirty-five years following the foreclosure de-
cree, plaintiff contends that it has acted as the owner
Oe Re Se PATS Ney wD SEE SOREL ILS TRY e EO LRP ET REE RIT NET SSN PPS ROPER LEP 2
33
of the property and has held it adversely for the
requisite prescriptive period. The possessory activities
relied upon inciude the execution of leases, the grant-
ing of rights-of-way to adjacent landowners, inspection
for Christmas tree sales, and the payment of fire-patrol
assessments on the property since at least 1944.
The present dispute arose in 1963 when Ila Dabney,
the widow of W. E. Dabney, first learned of the alleged
defects in the 1928 foreclosure proceeding. In a series
of letters between Mrs. Dabney and officials of Hood
River county, Mrs. Dabney was informed that even
if the 1928 foreclosure were defective, the county
claimed title to the property by adverse possession.
The county, however, offered Mrs. Dabney $150 for a
quitclaim deed to remove and cloud on its title as a
result of the alleged defects in the 1928 proceeding.
Mrs. Dabney promptly executed the deed and deposited
it in the mail on January 29, 1964. On the day follow-
ing the mailing of the deed (and before it arrived at
its destination), Mrs. Dabney entered into an arrange-
ment with defendant Evergreen Timber Company
whereby the latter agreed to pay $500 for her interest
in the 80-acre tract, plus an additional $2,000 if title
could be established against Hood River county.
Mrs. Dabney thereupon demanded that the county
either return the deed when it arrived or make a
PURELY OE GON ELE AED RTCA, I CET A AERTS NOT STEM GIT RLY IRL TER ES NEEDY ERE GE LEGEND CMSB LAE NN LAS RELIST LIA
34
higher offer. The county refused to do either, claiming
that the deed had been effectively delivered when
mailed. A chck was sent to Mrs. Dabney for $150,
which she returned.
Hood River county then instituted the present suit
to quiet title to the property. Its complaint alleged
the acquisition of title on three grounds: (1) The 1928
tax foreclosure and sheriff's deed; (2) adverse pos-
session for a sufficient period since 1928, and (3) the
quitclaim deed from defendant Dabrey. Defendant
Dabney’s answer collaterally attacked the validity of
the foreclosure decree and alleged that the deed exe-
cuted by her was induced by misrepresentation. Plain-
tiffs reply set up laches as a bar to the attack on the
tax foreclosure. Plaintiff also asserted that defendants
were barred from attacking the foreclosure proceeding
by ORS 312.230(1), which provides that a proceeding
to determine the validity of a tax foreciosure “shall
be commenced within two years from the date of the
judgment and decree of foreclosure and sale to the
county, or within six months from June 1, 1961, which-
ever is the later.”
The trial court held that because the published
notice did not comply with the statute, the court in
the foreclosure proceeding did not acquire jurisdiction
and that, therefore, the foreclosure decree was void.
36
The court also held that ORS 312.230, the statute of
limitations applicable to suits attacking the validity of
tax foreclosure sales, did not preclude collateral attack
on a decree which was void as a result of a jurisdic-
tional defect.
The court went on to hold, however, that defend-
ants’ attack on the foreclosure proceeding was barred
by laches. The lower court further held that plaintiff’s
acts were sufficient to establish title by adverse pos-
session or, alternatively, that title was acquired by
deed from Mrs. Dabney, which the court found to have
been effectively delivered when mailed and not in-
duced by misrepresentation or fraud. Accordingly, a
decree was entered quieting the title of Hood River
county to the property in question. Defendants appeal,
presenting substantially the same arguments as were
asserted below. |
The trial court erred in holding that the foreclosure
decree was subject to attack by defendants.
ORS 312.220 provides that a decree of foreclosure
for delinquent taxes “is conclusive evidence of its regu-
Jarity and validity in all collateral proceedings, except
where the taxes have been paid or the property was
36
not liable to assessment and taxation.” ORS 312.230
bars any suit attacking the validity of a sale upon fore-
closure for delinquent taxes if not commenced within
two years.’
There is no contention that the taxes were paid or
that the property was not subject to assessment and
taxation. Therefore, the decree must be regarded as
valid unless on constitutional grounds we must hold
that the legislature lacks the power to declare valid
a tax foreclosure decree defective for lack of juris-
diction.
In our previous cases we distinguished those tax
foreclosure proceedings which are void and those which
are merely irregular, holding that the legislature has
the power to set up a statute of limitations barring
'The full text of the statute is as follows:
“Any judgment and decree for the sale of real property to the county,
on foreclosure for delinquent taxes, is conclusive evidence of its regularity
and validity in all collateral proceedings, except where the taxes have been
paid or the property was not liable to assessment and taxation. The judgment
and decree is prima facie evidence that the taxes have not been paid and
that the property was subject to taxation at the time it was assessed. The
judgment and decree shall estop all persons raising objections thereto, or
to the title based thereon, which existed at or before the date of the judgment
and decree and could have been presented as an objection or defense to the
application for the judgment and decree.”
2The pertinent part of ORS 312.230 is as follows:
“(1) Every action, su't or proceeding, commenced for the purpose of
determining the validity of a sale of real property on foreclosure for delin-
quent taxes, or to quiet title against such sale, or to remove the cloud thereof,
or to recover possession of the property, shall be commenced within two
years from the date of the judgment and decree of foreclosure and sale to
the county, or within six months from June 1, 1961, whichever be the later.
~eeee
“(3) For all purposes this section shall be construed as a statute of
prescription as well as a statute of limitation.”
37
an attack on the latter but not on the former.* Accord-
ing to our analysis in those cases only a jurisdictional
defect would render a proceeding void. Failure to
comply strictly with statutory notice requirements was
held to be such a defect.‘
Upon a thorough re-examination of-these cases we
have decided that the view we have previously ex-
pressed must be clarified and in large measure modi-
fied.
1. We have not always made clear what we regard
as a jurisdictional defect, particularly with respect
to the adequacy of notice. If the notice is so defective
that it does not satisfy the requirement of due process
it is clear that the court dees not have jurisdiction.
Our cases go beyond this, however, and hold that in
addition to the constitutional requirement certain other
requirements specified in the statutes relating to tax
foreclosure proceedings must also be met before juris-
3See Evergreen Timber Co. v. Clackamas County, 235 Or $52, 385 Pad
1009 (1963) and cases cited therein.
“Evergreen Timber Co. v. Clackamas County, 235 Or $52, 385 Pad 1009
(1963); Murphy v. Clackamas County and Jones Lumber Co., 200 Or 423,
264 Pad 1040, 266 Pad 1065 (1953); Keerins Bros. ¢. Mauncy, 189 Or 651,
219 Pad 753, 222 Pad 730 (1950) ; Champ o. Stewart, 186 Ur 656, 208 Pol 454
(1949) ; Frederick v. Douglas County, 176 Or $4, 155 Pad 925 (1945); Elliott
ev. Clement, 175 Or 44, 149 Pad 985, 151 Pad 739 (1946).
38
diction is acquired.* We have said that the statuiory
requirements are essential to jurisdiction if a depar-
ture from the statute “affects some substantial right of
the complaining party-—where he is denied some sub-
stantial right which would have been granted him had
the regulation been pursued according to its terms***.’”*
It seems evident from our cases that a published
summons sufficient to satisfy due process but defec-
tive because it failed to follow the provisions of the
statute as to the time within which appearance must
be made would be deemed a jurisdictional defect.
Tested by this stendard the defect in the published
summons in the present case would be jurisdictional
and would render the decree void. That result is war-
ranted only if it can be said that the statutory pro-
vision as to the time within which appearance must
be miade was intended by the legislature to be a juris-
dictiona! requirement.
5See, e.g., Frederick vo. Douglas County, 176 Or 54; 63-64, 155 Pad 925,
929 (1945), where the cout said:
“In reaching a conclusion as to what statutory provisions are jurisdictional,
a distinction may be made between procedures which are required both by
statute and zlso by the due process clause of the constitution on the one
hand, and procedures required by statute alone, over and beyond anything
rerdered necessary by the censtitution, on the sther. Ensign o. Barse, 107
N.Y. 329, 14 N.E. 400, 15 N.E. 401. Those requirements of statute which
are essential to due process are, of course, jurisdictional and we think chat
statutory requirements over and beyond the bare necessities of due process
may aiso be jurisdictional, but only if it is the legislative intent to make
them so.”
See also, cases cited in footnote 4 supra; Note, 28 Or L Rev 184 (1949).
SThis was the test adopted in Frederick v. Douglas C. ty, 176 Or 54,
64, we | 925 (1945) from Miller v. Henderson, 50 Wash 200, 96 © 1052,
1053 (1908).
39
The notice statute itself offers no clue to the legis-
lative intent in this regard. In enacting the tax fore-
closure statutes the legislature had two opposing in-
terests to consider: On one hand, the interest of the
taxpayer in receiving the warning of impending fore-
closure; and on the other hand, the interesis of the
county and the purchasers at the foreclosure sale. The
latter interests are served by a tax sale procedure
which provides the county with a market for tax de-
linquent lands which in turn depends upon giving the
purchasers at the foreclosure sale .easonable assur-
ance that they will acquire good title.
2, 3. Our previous decisions striking down tax fore-
closure proceedings based on relatively insignificant
defects treat the statutes as expressing a legislative in-
tent to favor the interest of the taxpayer rather than
the interest of the county and the interest of the pur-
chaser at the tax foreclosure sale. We are now of the
opinion that this interpretation of the statutes cannot
be sustained and we hold that ali defects in tax fore-
closure proceedings are to be deemed non-jurisdictional
unless they deprive the taxpayer of his constitutional
right to due process of law.
We reach this conclusion upon the basis of our in-
terpretation of the legislative purpose expressed in
ORS 312.214, 312.216. 312.218, 312.220, and 312.230,
eee
40
all of which show a design to strictly limit the delin-
quent taxpayer’s right to attack defective tax fore-
closure proceedings. Thus, ORS 312.214 expressly de-
clares that it is the public policy of this state that the
title acquired by the county upon a foreclosure for
delinquent taxes “shall have the utmost stability,” and
it imposes upon persons attacking such titles “a con-
tinuing duty to investigate and ascertain whether such
real property did become or hereafter shall become
included in tax foreclosure proceedings, regardless of
any defects, jurisdictional or otherwise, that may have
appeared or shall hereafter appear in such foreclosure
proceedings.” (Emphasis added.)’ And ORS 312.216
establishes conclusive presumptions that the person
whose land was foreclosed for delinquent taxes had
notice of certain matters relevant to the foreclosure
7The full text of ORS 312.214 is as follows:
“(1) Notwithstanding any other provisions of law, and for all purposes
of ORS 312.214 to 312.230, it is hereby declared to have been and iv be
the public policy of this state that when a county has acquired or hereafter
acquires real property by foreclosure for delinquent taxes, its title to such
property shall have the utmost stability; and that one real property has
become or hereafter shall become subject to foreclosure for taxes, there
has been imposed and there hereafter shall be imposed upon all persons
owning or claiming to own, or having or claiming to have, any interest
in such real property, by reason of their delinquency, a continuing duty to
investigate and ascertain whether such real property did become or her: after
shall become included in tax foreclosure proceedings, regardless of any
defects, jurisdictional or otherwise, that may have appeared or shall hereafter
appear in such foreclosure proceedings.
“(2) If any subsection, sentence, clause or word of ORS 312.214 to 312.230
(incorrectly printed as 312.220) shall be held to be unconstitutional, the
invalidity of such subsection, sentence, clause or word shall not affect the
validity of any other portion of ORS 312.214 to 312.230, it being tue intent
of this Legislative Assembly to enact the remainder of ORS 312.214 to
312.230 notwithstanding such prt so declared unconstitutional should or
may be so declared.”
41
all of which are designed to limit the grounds upon
which a defective foreclosure proceeding can be at-
tacked.* ORS 312.218 purports to treat the county as
having constructive possession of foreclosed lands and
declares that the county’s constructive possession is
equivalent to actual possession, thus making it possible
for the county to acquire title to defectively foreclosed
land by adverse possession.’
Most emphatic of all these sections is ORS 312.220,
which proclaims that:
“Any judgment and decree for the sale of real
property to the county, on foreclosure for delin-
quent taxes, is conclusive evidence of its regularity
and validity in all collateral proceedings, except
where the taxes have been paid or the property was
not liable to assessment and taxation. The judg-
ment and decree is prima facie evidence that the
taxes have not been paid and that the property was
subject to taxation at the time it was assessed. The
judgment and decree shall estop all persons raising
objections thereto, or to the title based thereon,
which existed at or before the date of the judg-
ment and decree and could have been presented
as an objection or defense to the application for
the judgment and decree.”
SORS 312.216 provides that the delinquent owner conclusively shall be
deemed to have taken notice that his property is annually assessed; that the tax
becomes due and delinquent at a fixed time; that the tax becomes a lien upon
the property; that if the tax is not paid, the lien will be foreclosed, and that
because of his delinquency in payment he has a continuing duty to ascertain
whether the property has been foreclosed on “regardless of any defects, jurisdic-
tional or otherwise, that may have appeared or hereafter shall appear in such
foreclosure proceedings.”
9ORS 312.218 also provides: “That the recording of a deed to a county
pursuant to ORS 312.200 (the deed executed by the tax collector to the county)
gave and hereafter shall be deemed to give notice to the world cf such county’s
constructive possession * * *,”
ae BORG EILEEN SE PRE eR, TRIP EE OPES TY EAT IRE ie RS Te Sd TP stems tactical
ies
42
Finally, as previously explained, ORS 312.230
establishes a statute of limitation and prescription for
the institution of suits attacking tax titles.
The foregoing statutory provisions make it clear that
the legislature has striven to employ every conceivable
device to make invulnerable the county’s title to land
acquired upon foreclosure for delinquent taxes.'® Since
these statutes by their own terms proclaim that tax
titles are to be free from attack not only for mere
irregularities but also for jurisdictional defects, we are
warranted in concluding that all procedural defects
in tax foreclosure proceedings less than a constitutional
deficiency for lack of due process were intended to be
regarded as nonjurisdictional defects.
4. In the present case, although the published sum-
mons required the owner to appear within 42 days
rather than within 60 as required by the statute, the
10The legislative purpose to strengthen tax titles is further disclosed in the
records of the House and Senate Taxation Committees relating to Senate Bill 523
(the source of the tax foreclosure statutes to which we have referred). Of special
interest is a letter from Senator Donald Husband to Senator Ben Musa containing
the following paragraphs:
“In discussing this matter with Mr. (an employee of a title insurance
company) it is my judgment that the previous decisions of our Supreme
Court uave stated that the two year statute would cure mere irregularities,
but would not cure jurisdictional defects. According to Mr. * * * the present
law is this—that color of title acquired by a tax foreclosure becomes final
after the expiration of the two year statute of limitation as to all irregular-
ities, but not as to jurisdictional defects, and the two year statute would not
help cure jurisdictional defects.
“The purpose of Senate Bill 523 is to exprese public policy of the state
to further the stability of tax titles, and make the short statute of limitations
apply to jurisdictional defects, as well as to mere irregularities, as are now
known in the law. Our courts have said that 312.220 is limited to irregu-
larities aud not to jurisdictional defects.”
BO ESD CF RIO RR
ES RS EI LT Be ee ROLLER LALIT LD Oe
oe
+ REET! SPOIL AEE MOLTEN A NOE St 5 A
43
time for appearance recited in the summons was suf-
ficient to satisfy due process requirements. Therefore,
applying our previous reasoning the defect was not
jurisdictional. ORS 312.230 admittedly bars any claim
resting upon a nonjurisdictional defect. We hold, there-
fore, that defendants’ claim is barred by the statute.
Plaintiff’s title being free from attack by operation
of ORS 312.230, it was unnecessary for plaintiff to
prove that it acquired title by the deed of defendant
Dabney or by adverse possession.
5. Although we could rest our decision solely upon
the ground that the defect in the summons was non-
jurisdictional and that, therefore the foreclosure decree
is free from collateral attack, in the interest of carrying
out the clearly indicated legislative purpose to give
the “utmost stability” to tax titles we prefer to rest
our decision upon the broader ground that even if the
defect in the proceedings is jurisdictional for failure
to meet either legislative or constitutional requirement
deemed essential to jurisdiction, it was within the pur-
pose and power of the legislature in enacting ORS
312.220 and ORS 312.230 to bar the delinquent owner
from attacking the foreclosure decree.
6-9. A contrary view was expressed in Evergreen
Timber Co. v. Clackamas County, 235 Or 552, 556-57,
385 P2d 1009 (1963). There we said:
44,
“Within certain limits the legislature has the
power to fix the time within which actions can be
brought, but it cannot, without more, command
the owner of property to bring an action to defend
his title or lose it. Thus a statute requiring a tax-
payer whose land has been foreclosed for nonpay-
ment of taxes to bring an action to determine the
validity of the tax sale within a certain period
after the sale does not operate to divest the tax-
payer’s title if the foreclosure decree is void. [Foot-
note omitted]. On the other hand, if the foreclosure
decree is simply irregular, a statute limiting the
time within which the tax foreclosure proceeding
can be attacked is effective to quiet a title derived
through the tax sale. [Footnote omitted].”
Upon a reconsideration of the question we are now
of the opinion that when land has been sold for taxes
the legislature has the constitutional power to cut off
the interest of the delinquent owner, even though the
decree of foreclosure is void for lack of jurisdiction if
the owner is given a reasonable time within which to
attack the void decree."'
11As the court pointed out in Spitcaufsky v. Hatten, 353 Mo 94, 111, 182
SW2d 86, 96, 160 ALR 990 (1944):
“Due process is a very different thing in the assessment and collection of
public taxes from the same right as applied to litigation between parties
over private rights, the institution of the latter depending wholly on the
will of the complainant. The reasons are apparent. The first is the govern-
ment’s exigent need for the pecuniary support necessary to its existence. The
second is the futility of impeding the annual collection of taxes by requiring
a predetermination of the titles to many parcels of land * * * and the identity
and competency of their owners. The third is that taxes are collected periodi-
cally under fixed iaws which, in a restricted sense, impart their own notice.
The settled doctrine of the authorities is that the taxing power is wholly legis-
lative, and that land may be summarily foreclosed and sold for delinquent
taxes even by administrative procedure alone. This does not deny due
process if there has been a compliance with the essential provisions of the
statute, and the landowners are afforded an opportunity to be heard, though
only by an 2dministrative tribunal after the sale.”
45
10. It must be borne in mind that we are not here
dealing with a statute of limitations which cuts off the
rights of the owner without warning. The statutes give
warning to the owner that if he does not pay his taxes
he may lose his land. As the dissent in Welborn v.
Whitney, 190 Okla 630, 642-43, 126 P2d 263, 275 (1942)
explains, every citizen “is presumed to have known
that his land was taxable, that in due course it would
be assessed, a tax levy extended against it, and it would
be placed on the tax rolls, that it was his duty to timely
pay his taxes, that if he failed to do so, his land would
be offered for sale and resale at a time and place
specified in the statutes, and that if the county had to
purchase it for want of bidders, it would be offered
for sale at a county commissioner’s sale and some one
would buy it.”
ORS 312.216 creates a conclusive presumption that
the taxpayer has notice of each of these aspects of the
machinery of collecting property taxes. The statute
also specifically impresses upon the owner “a con-
tinuing duty to investigate and ascertain whether or
not such real property has been or hereafter shall
become included in tax foreclosure proceedings, re-
gardless of any defects, jurisdictional or otherwise,
that may have appeared or hereafter shall appear in
such foreclosure proceedings.” It is further provided
46
in ORS 312.218 that the recording of the deed from the
tax collector to the county “shall be deemed to give
notice to the world” of the county’s claim to the prop-
erty.
11. The imposition of the duty upon the defendant
owner to learn what was being done to enforce the
payment of taxes against his property and the limi-
tation upon his right to attack the foreclosure decree
after expiration of two years from its rendition as
provided in ORS 312.230 is a legitimate exercise of
legislative power in carrying out a property tax pro-
gram."*
Other states have recognized the legislative power
to place limits of this kind upon the right of the de-
linquent owner to attack tax foreclosure proceedings,
including those which were so defective that the court
had no jurisdiction to enter a valid decree of foreclos-
ure. The leading case is Meigs v. Roberts, 162 NY 371,
56 NE 838 (1900). In that case the tax foreclosure
BEER REE ER
47
held that the New York statute of limitations making
a tax deed, after the lapse of two years from its record-
ing, conclusive evidence of the regularity of the tax
foveclosure proceedings was effective to bar the claim
of a delinquent owner even though the foreclosure
proceedings contained a jurisdictional defect. The
court held that the legislature has the power to enact
a statute of limitations which will “bar any right, how-
ever high the source from which it may be deduced,
provided that a reasonable time is given a party to
enforce his right.” (56 NE at 840)."* The same effect
has been given similar statutes of limitations in other
states."* |
12, 13. ORS 312.230 gave defendants six months
from its effective date to assert their claim to the prop-.
erty in question. The six month period is a reasonable
' time. ORS 312.230 is not repugnant to any provision of
the Oregon or the United States Constitution."*
13See also, George F. Weaver Sons Co. o. Burgess, 7 N¥2d 172, 164 NEad
677 (1939) Weaver 0. City of Utica, 2 App Divad 436, 136 NYSad s69
App 1963); Sears o. County of Calaveras, 45 Calad 518, 289 Pad 425 (r9ss)3 ©
Lid. o. Gross, 41 Caled 322, 260 Pad 35 (1953); Tannheuser 0, Adams, «
31 Caled 169, 187 Pad 716, s ALRad 1015 (1947); Devealt o. Essig, 80 Cal
Avot ore 183 Pad 39 (1949), cert. den., 333 US 843, 68 § Ct 660, 92 L ed
112 oe
'S Turner ©. State of New York, 168 US 90, 18 S$ Ct 38, 42 Led 392 (1897);
Saranac Land and Timber Co. 0, Compiroller of New York, 177 US 318, 20
f
S Ct 642, 44 L ed 786 (2900).
48
- In enacting the 1961 legislation (Oregon Laws 1961,_
ch 718) relating to the foreclosure of property tax
liens, the legislature manifested its dissatisfaction with
the previous law on the subject, including, we may
assume, the holdings of this court, and fashioned the
law io eliminate as far as possible the features in past
legislation found by this court to have been objection-
able or wanting in testing it against constitutional
requirements. This being new legislation, the cases
prior to its enactment can, for the most part, be dis-
tinguished from the case at bar. To the extent that
they are not distinguishable they must be regarded as
overruled. Evergreen Timber Co. v. Clackamas County,
supra, was decided after the enactment of the 1961
legislation. To the extent that it expresses a view con-
trary to the present case it is overruled. :
The decree of the trial court is affirmed.
oO
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