dissenting.
I dissent because it appears clear to me that the circuit court had no jurisdiction to entertain the appeal from the state historic preservation officer’s decision to approve the classification of the subject property as historic property.
ORS 358.495 on its face does not authorize such an appeal. It provides:
“(1) The state historic preservation officer shall immediately notify the county assessor and the applicant of his approval or disapproval of the application * * *.
i£* * * * *
“(3) Any owner whose application for classification has been denied by the state historic preservation officer land is located, or if located in more than one county, in *251that county in which the major portion is located.” (Emphasis added.)
It is inconceivable to me that the legislature, having dealt with both the question of approval and disapproval of the application in subsection (1) and appeal to circuit court in subsection (3) in the case of an “owner whose application * * * has been denied,” can fairly be said to have intended to allow an appeal to circuit court by the county or its assessor when an application has been allowed. The majority does not fully articulate its reasoning in concluding the circuit court had jurisdiction over an appeal from an allowed application. Its reasoning, however, appears to be as follows: while acknowledging the fact that appeal to circuit court is specifically authorized only in the case of an owner whose application is denied, the majority concludes that the legislature probably did not consider the act to be a tax law, because otherwise tax court review rather than circuit court review would have been expressly provided for appeals of both denied and allowed applications. Therefore, circuit court review must have been intended for allowed applications as well.
The act, however, may have both tax and non-tax aspects which the legislature could have concluded warranted judicial review in different forums. One reason, among others which may be imagined, why orders denying historic classification were made reviewable in circuit court, while others were not, is that a denial of historic status results in no direct tax consequences, but maintains the status quo ante for tax purposes. Allowance of the classification, on the contrary, has only tax consequences. Among the questions which might arise after an order allowing certification are the proper assessed value and the proper date as of which the assessment is frozen pursuant to the act. Those questions are questions arising under the tax laws.
If the legislature considered challenges to orders denying applications not to raise tax questions, how that justifies a conclusion, inherent in the majority opinion, that it must also have considered that orders allowing applications likewise raise no questions arising under the tax laws escapes me. First, it ought to be sufficient that no *252challenge to an order granting an application is authorized in circuit court. Second, the challenge being made in this case by appellants is in substance merely a challenge to the qualification of the property for a special tax assessment as of January 1, 1979, rather than January 1, 1980. The question of the proper date as of which the assessment is frozen pursuant to the act, is a question arising under the tax laws. The challenge here made then is within the exclusive jurisdiction .of the tax court. ORS 305.410. I do not agree with the majority that, because circuit court review is provided in cases of denied applications, it is inherent in the legislation that there be circuit court review of orders granting historical property classification when it enacted ORS 358.495. When an application is allowed, review of the consequences of the allowed classification is otherwise legislatively provided for. The assessor is specifically authorized to challenge qualifications of property for the special assessment. ORS 358.509. However, entitlement to a special assessment is a question within the jurisdiction of the tax court. C.f. Corp. Presiding Bishop v. Dept. of Rev., 6 OTR 268 (1975).
If the legislative decision to permit review in circuit court of some, but not all, questions arising under chapter 358 results in split jurisdiction (see majority opinion, n 7), that decision is no proper concern of ours.
The most distressing aspect of the majority opinion is its inconsistency on the subject of judicial legislation. The majority refers to ORS 174.010 in declining to add language to ORS 358.495(1), noting that “* * * the language of the statute is clear and unambiguous and we may not add language that is not there.” 56 Or App at 247.) But that is precisely what it has done with respect to subsection (3) of the same statute. ORS 358.495(3) does not provide for circuit court review of orders allowing classification of historic property. The majority simply adds to the statute what it perceives the legislature should have included.
In Lane County v. Heintz Const. Co. et al, 228 Or 152, 364 P2d 627 (1961), the Supreme Court said:
“Turning to the applicable rules of law by which to test the defendants’ premise, we first take note that the court is *253not authorized to rewrite a statute or to ignore the plain meaning of unambiguous words to correct the action of the legislature, or, in this instance, the action of the Board of County Commissioners of Lane [C]ounty.
“ * * The court’s province, after all, is to ascertain what the legislature intended from the language used, with such aid as may be found in the rules of interpretation and legitimate extrinsic sources; to construe statutes, not to enact them; to declare what the legislature has done, not what it should have done. * * *’ Fullerton v. Lamm, 177 Or 655, 670, 163 P2d 941, 165 P2d 63.
“The rule by which courts must be guided was clearly stated by Mr. Justice Rand in Barrett v. Union Bridge Co., 117 Or 566, 570, 245 P 308, 45 ALR 527:
“ ‘Section 715, Or. L. [now ORS 174.010], directs that the courts in the construction of statutes, are “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted.” We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give effect to the obvious and plain intention and meaning of the legislature. * * *’ ” (Emphasis in original.) 228 Or at 157-158.
These limitations on our proper function should not be disregarded and, therefore, I respectfully dissent.
Joseph, Chief Judge, and Warden, Judge, join in this dissent.