Petition for A Writ of Certiorari — Western Tree Farms, Inc. v. Hood River County

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LIBRARY Oe Supreme Cau, US.

#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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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