The question in this case, as I understand it, is whether statutory authority existed during the period involved to make the threatened assessment. It cannot be doubted that without a valid assessment there can be no valid tax, and that no person or property is subject to taxation unless within the terms or plain import of a taxing statute. 51 Am. Jur., Taxation, 614, § 647. The assessor is directed by § 110-335, O.C.L.A., *Page 338 as amended by § 4, Ch. 440, Oregon Laws, 1941, "to assess the value of all taxable property within the county except such as by law is to be otherwise assessed" (italics added). The assessment must include "a definite description of the real property owned by each person therein named (i.e., in the assessment roll), on January 1, of said year, at the hour of 1 o'clock a.m." Under the plain language of § 110-829, as amended by § 27, Ch. 440, Oregon Laws, 1941, the real property in controversy, being owned by Multnomah County on July 1, 1942, was exempt from taxation on that date and throughout the fiscal year 1942-1943; hence, it was not "taxable property" on January 1, 1943, and the assessor was without legal authority to assess it as such as of that date. He correctly listed it as property owned by Multnomah County and exempt. The statutes invoked as giving him or the sheriff such authority (§§ 110-820 and 110-821, O.C.L.A.) in my opinion do not have that effect, because these statutes were merely enacted to enable errors to be corrected and omissions to be supplied. But here nothing was omitted and no error was made. Any officer assuming to act under those provisions in the instant case would necessarily erase the truth and substitute therefor an untruth; for, if his act were to be given any effect at all, he would have to list the property in the assessment roll as in private ownership on January 1 — the only date as of which there is statutory authority for the assessment. The defendant concedes, and it is a proper concession, that unless the property be assessed as of January 1 constitutional provisions prescribing uniformity and equality of taxation would be violated.
To me it is apparent that when in 1941 the legislature made the changes in our tax laws, to which attention *Page 339 has been specifically called in the specially concurring opinion of Mr. Justice BAILEY, it left a hiatus in the law with respect to the assessment of real property passing from an exempt to a taxable status between January 1 and July 1. That oversight, it would seem, has been corrected by Ch. 357, Oregon Laws, 1945, which expressly provides for the assessment of such property, and that "all assessments and tax charges so made shall be as of omitted property and subject to the provisions of § 110-821, O.C.L.A." It is not contended that this enactment governs the present case. It serves, however, to emphasize the deficiency in the 1941 legislation. The legislature, of course, could supply that deficiency; this court has no power to do so.
One might readily agree that there is no good reason in legislative policy why the plaintiff's property should be permitted to escape taxation for the year in controversy. But that consideration does not justify us in holding that it has not escaped if the foundation of the tax — an assessment made pursuant to lawful authority — is wanting. It would no doubt be conceded that an improvement placed on land between January 1, 1946, and July 1, 1946, could not, under existing legislation, be taxed for the fiscal year commencing July 1, 1946, notwithstanding that it comes within the literal terms of § 110-101, O.C.L.A., that "all real property within this state * * * shall be subject to assessment and taxation". Such an improvement would escape taxation during the fiscal year 1946-1947, not because there is any reason of policy for exempting it, but simply because it was not "taxable property" on January 1 and therefore not assessable. An attempt to have it included in the assessment roll as "omitted property" would assuredly fail in the courts. And, since the legislature *Page 340 has made provision for the assessment as of January 1 of "taxable property", and no other, I can see no difference between the case supposed and the one which we are deciding.
I therefore respectfully dissent from the judgment of the court.
BELT, C.J., concurs in this dissent.