ON PETITION FOR REHEARING Court affirmed its opinion of February 23, 1984, insofar as it precludes either party modifying the true cash value alleged in the Tax Court proceeding from that true cash value alleged in the preceding administrative hearing. The above opinion, with respect to precluding the parties from modifying the valuation approach(es) used in the appeal below is affirmed only in those cases of utility assessments or in industrial appraisals performed by the defendant department. The court recognizes that in other types of valuation problems, the parties often upgrade the professionalism of the appraisal witnesses at the trial before this court with a resultant change in valuation techniques. Accordingly, the opinion of February 13, 1984, was modified to allow valuation approach changes except in those instances where utilities or industrial properties are involved. Opinion and order modifying decision rendered April 5, 1984.
Reversed and remanded 297 Or. 583, 686 P.2d 1020 (1984). On February 13, 1984, this court rendered its opinion in the above-entitled matter which, among other things, construed the phrase in ORS 305.425(3) providing "the issues of fact and law shall be restricted to those raised by the parties in the appeal to the department" to be applicable to ad valorem cases involving the issue of true cash value. This had not been the construction previously. Defendant timely filed a Motion for Rehearing, an Order was issued allowing the motion, and rehearing was held on March 28, 1984, beginning at 1:30 p.m. in the court's courtroom, Salem. Defendant appeared by Mr. G. F. Bartz, Assistant Attorney General Tax Section, General Counsel Division, Department of Justice. Plaintiff appeared by Mr. James H. Conley, Attorney at Law, and Mr. Russell M. Helterline, of Black, Helterline, Beck Rappleyea, Attorneys at Law, Portland, appeared as amicus curiae.
Messrs. Conley and Helterline agreed that the frequent increase in true cash value by defendant on appeal to this court should be curtailed but that the procedure utilized for doing so should be that defendant bear the burden of proof of showing a factual basis for the increased value, not by enforcing ORS 305.425(3). The rationale for the foregoing was that enforcing ORS 305.425(3) conflicts with ORS 305.425(1),i.e., de novo provision, and the last sentence of ORS 305.435,i.e., the court not restricted to the values pled by the parties. Mr. Bartz did not agree that defendant frequently increased true cash value on appeal and, accordingly, did not comment on the burden of proof suggestion of Messrs. Conley and Helterline. Rather, he also dealt with the alleged conflicts between ORS 305.425(3), ORS 305.425(1) and ORS 305.435 and the "Court's departure from a well established legal path *Page 395 laid out by prior Tax Court judges following legislative intent, and familiar to the private and public bar."
The court freely admits to departure from a well-established legal path but it has done so because it has concluded that path was in error. The error was failure to give effect to language included in the original Act creating the court and continuing unchanged in the language of the statute to this day. That language provides:
"In the case of proceedings to set aside an order or determination of the department, * * * the issues of fact and law shall be restricted to those raised by the parties in the appeal to the department." (ORS 305.425(3).)
The language is clear and unambiguous when read in connection with the statute governing appeals filed with the Department of Revenue by petitioning taxpayers. ORS 305.275 provides in relevant part:
"(5) All appeals shall be taken by filing a petition with the director * * *. The petition shall state the facts relied upon for relief, * * * any statement or proposition of law relied upon, the relief requested, * * *."
8. In a property tax case involving true cash value, the "relief requested" is a reduction of "X" dollars.
9. While there may be a conflict between the statutory provision restricting issues of fact and law and the statutory provision providing for trials de novo in the sense that restricting issues of fact and law limits the de novo aspects of the trial, nevetheless the legislature, in drafting 1961 Or Laws ch 533, § 16, obviously intended that result, otherwise the language would not have been used. To construe the statute otherwise would be to presume the legislature would do a futile thing. Such a presumption is not reasonable. 2A SutherlandStatutory Construction § 45.12 (4th ed 1972). The language was used and one effect reasonably to be anticipated from the language's use was to insure that all the evidence that could be marshalled pro and con would be presented to the defendant department and available to it in making a judgment on the merits. Stressing de novo at the expense of restricting issues of fact and law, on the other hand, tends to insure that defendant department does not have all or the best evidence available to *Page 396 it, making it less possible to settle appeals at the defendant department's level.
Messrs. Bartz, Conley and Helterline alleged conflict between ORS 305.425(3), the statutory provision restricting issues of fact and law, and ORS 305.435, which reads, in relevant part, as follows:
"Where the determination of true cash value * * * is an issue before the court, the court has jurisdiction to determine such value on the basis of the evidence before it, without regard to the values pled by the parties."
This provision was enacted in 1977, 1977 Or Laws ch 870, § 30, in response, it is alleged, to Bauman et al v. Dept. of Rev.,6 OTR 426 (1976), discussed by this court at 6 and 7 of its February 13, 1984, opinion. That case involved a situation where this court found that the evidence supported a higher value than the defendant department had alleged at its hearing. The question was: Could the court properly find a higher value? The court held that the defendant department could do so pursuant to its supervisory power but that the court had no supervisory power under which it could initiate increases of value. The court then went on to say:
"Under ORS 305.425, the proceedings in this court are tried de novo; i.e. a new trial as to the admission of evidence, but on the same issues as were presented to the administrative tribunal. It must find the alleged true cash value shown by the preponderance of the evidence and within the scope of the pleadings. (Bauman et al, supra, at 438.)
What the legislature did, therefore, in enacting the 1977 amendment to ORS 305.435, was to state that this court could, if it felt the evidence warranted the conclusion, increase the value over that pled by the parties. The court does not regard the 1977 legislative amendment to have repealed, by implication, ORS 305.425(3) so that either plaintiff or defendant can freely modify their respective determinations of true cash value as set forth in the defendant department's opinion and orders.
10. There is a presumption against repeal by implication based on the concept that the legislature is presumed to achieve a consistent body of law. In accordance with this *Page 397 principle, subsequent legislation is not presumed to effectuate a repeal of existing law in the absence of that expressed intent. 1A Sutherland Statutory Construction § 23.09 (4th ed 1972). There is no expressed intent by the legislature to repeal ORS 305.425(3).
The presumption against implied repeals can be overcome by showing that the two acts are irreconcilable, clearly repugnant as to vital matters to which they relate, and so inconsistent that the two cannot have concurrent operation. 1A SutherlandStatutory Construction § 23.10 (4th ed 1972). The foregoing cannot be shown to exist in this instance in that the statutory provisions involved can reasonably co-exist.
Accordingly, the court affirms its February 13, 1984, opinion insofar as it precludes either party subsequently modifying his, her or its position as to the true cash value of the subject property because it remains convinced that ORS305.425(3), if enforced, will achieve the salutary purposes indicated in the original opinion. The court, however, amends its February 13, 1984, opinion insofar as it precludes either party subsequently modifying his, her or its position as to the valuation approach or approaches utilized. It does so in recognition that there is a difference between the mass appraisal techniques of necessity utilized by the several county assessors and defendant department in supervising the several county assessors and appraisals performed by fee appraisers. By virtue of the burden of proof and the nature of the witnesses utilized at the hearing, it is quite likely except in utility assessments or industrial appraisals performed by defendant department, that the parties at the hearing often will subsequently change their position on the valuation technique approaches utilized by upgrading the professionalism of the appraisal witnesses at the trial before this court.
Accordingly, the court affirms its February 13, 1984, opinion only insofar as it precludes either party involved in contesting a utility assessment or an industrial appraisal performed by defendant department from modifying his, her or its position as to the valuation approach or approaches utilized. *Page 398
Now, therefore, it is ORDERED that the court's opinion of February 13, 1984, precluding the parties from modifying their positions as to the true cash value of the subject property and insofar as it precludes either party in a utility assessment or an industrial appraisal performed by the defendant department from modifying his, her or its position as to the valuation approach or approaches utilized is affirmed.
Rule 68 of this court provides that the prevailing party shall submit "a form of decree." Of the five properties appealed by plaintiff, defendant was the prevailing party as to three of the five. Accordingly, defendant is requested to submit, pursuant to Rule 68, a form of decree. *Page 399