Rosboro Lumber Co. v. Heine

Full title: ROSBORO LUMBER COMPANY, Petitioner, v. HEINE, et al, Respondents

Court: Oregon Supreme Court

Date published: Dec 16, 1980

290 Or. 213 (Or. 1980)

290 Or. 213

629 P.2d 925

Opinion

620 P.2d 925 (Or. 1980) 290 Or. 213 ROSBORO LUMBER COMPANY, Petitioner, v. Walter R. HEINE, Harry Carson, Jr., and Pat McCarthy, County Commissioners of Marion County, Oregon, Respondents. No. 1269; SC 26669. Supreme Court of Oregon. December 16, 1980

       Submitted on Petition for Rehearing Nov. 17, 1980. ^*

* From opinion by Justice Tongue affirming Tax Court filed Oct. 28, 1980.

       Richard Bryson, Eugene, for petitioner. With him on the brief was Brysons&sBryson, Eugene.

       Larry Jon Pound, Marion County Assistant Legal Counsel, Salem, for respondents.

       Before DENECKE, C. J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ.

        TONGUE, Justice.

       Plaintiff petitions for rehearing of our decision in Rosboro Lumber Co. v. Heine et al., Or., 618 P.2d 960 (1980), in which we denied plaintiff's claim on the ground that the writ of review is an available remedy in the Oregon Tax Court and that plaintiff's failure to exercise that remedy within the procedures of ORS 34.030 precluded its use of a writ of mandamus in this case. In seeking a rehearing of this decision plaintiff contends that our decision fails to reconcile ORS 305.425, which states that proceedings in tax court are to be heard de novo, and Oregon case law which states that writs of review are not to be heard de novo.

       We deny petitioner's request for a rehearing for the reasons set forth in our previous opinion in support of the holding that the legislature intended that the writ of review be available in the tax court. In view of plaintiff's petition for rehearing, however, we note that the scope of review in a proceeding for a writ of review in the tax court is limited by the provisions of ORS 34.040. Limiting the scope of review of the tax court in such proceedings is consistent with previous holdings by this court. See National Metallurgical Corp. v. Dept. of Rev., 282 Or. 317, 321, 577 P.2d 941 (1978), and Martin Brothers v. Tax Commission, 252 Or. 331, 338, 449 P.2d 430 (1969). It follows that in granting the tax court the availability of writs of review, the legislature must have intended an exception to the general rule requiring that proceedings in the tax court be heard de novo.

       Petition denied.