S055392, Opinion — Pacific States Marine Fisheries v. Dept. of Rev.

117
Argued and submitted December 9, 2008,judgment of Tax Court affirmed
April 9, 2009
PACIFIC STATES MARINE FISHERIES COMMISSION,
Plaintiff-Appellant,
v.
DEPARTMENT OF REVENUE
and Multnomah County Assessor,
Defendants-Respondents.
(TC 4 771; SC S055392)
206 P3d 1037
CJS, Taxation§ 251.
En Banc
On appeal from the Oregon Tax Court.*
Henry C. Breithaupt, Judge.
* 19 OTR 349 (2007).

118 	Pacific States Marine Fisheries v. Dept. of Rev.
James E. Mountain, Jr., Harrang Long Gary Rudnick PC,
Portland, argued the cause and filed the briefs for appellant.
With him on the briefs was Jona J. Maukonen.
Jed R. Tomkins, Assistant County Attorney, Portland,
argued the cause and filed the brief for respondents. With
him on the brief was Agnes Sowle.
KISTLER, J.
The judgment of the Tax Court is affirmed.

Cite as 346 Or 117 	119
KISTLER,J.
The question in this case is whether the Pacific
States Marine Fisheries Commission (Pacific Fisheries) is a
"public * * * corporatio[n] in this state" and thus entitled to a
property tax exemption under ORS 307.090. The Tax Court
held that, because Pacific Fisheries is not a "public corpora-
tion," it is not entitled to a tax exemption. The court entered
judgment accordingly. Pacific States Marine Fisheries u.
Dept. of Rev., 19 OTR 349 (2007). We affirm the Tax Court's
judgment but for a different reason. We hold that, although
Pacific Fisheries is a "public corporation," it is not a public
corporation "in this state," as that phrase is used in ORS
307.090.
The facts are taken from the stipulated facts submit-
ted to the Magistrate Division and supplemented in the
Regular Division of the Oregon Tax Court. In 1947, the
States of Washington, California, and Oregon entered into an
interstate compact to create a commission, Pacific Fisheries,
to investigate and advise its member states about "the con-
servation of the marine, shell, and anadromous fisheries in
all of those areas of the Pacific Ocean over which the signa-
tory states*** have or may hereafter acquire jurisdiction."
ORS 507.040 art IV. 1 The commission is composed of repre-
sentatives appointed by each state; each representative
serves a four-year term. Id. art III. Each state is limited to
one vote, and all actions taken by Pacific Fisheries must be
supported by an affirmative majority vote of the states pres-
ent at the meeting. Id. art III, VI. The compact directs Pacific
Fisheries to elect a chair and a vice chair and adopt rules and
regulations for the conduct of its business. Id. art V. The com-
pact also authorizes Pacific Fisheries to appoint officers, hire
employees, and open offices. Id. Finally, the compact contin-
ues in force, and the commission it creates continues to exist,
until the member states dissolve the compact by withdraw-
ing from it. Id. art XI.
1 ORS 507.040 sets out the terms of the interstate compact. The compact
became effective on Congress' approval, US Const, Art I, § 10, which occurred in
1947. Act of July 24, 1947, Pub L No 80-232, 61 Stat 419-422. After Congress
approved the compact, Alaska and Idaho became members of Pacific Fisheries.

120 	Pacific States Marine Fisheries v. Dept. of Rev.
In 2003, Pacific Fisheries entered into a ten-year
lease 	with 	a 	private 	company 	for 	office 	space 	located
in Multnomah 	County. 	The lease provides 	that Pacific
Fisheries' rent will be reduced for any tax savings the lessor
realizes as a result of any property tax exemption Pacific
Fisheries obtains. Shortly after it entered the lease, Pacific
Fisheries applied to Multnomah County for a tax exemption
under ORS 307.112(1) and ORS 307.090. On September 23,
2004, Multnomah County denied the application based on its
determination that Pacific Fisheries is not an exempt organ-
ization under ORS 307.090. Pacific Fisheries filed for relief in
the Magistrate Division of the Tax Court, which upheld the
county's determination.
Before the Regular Division of the Tax Court, Pacific
Fisheries and the county filed cross-motions for summary
judgment. The Tax Court granted the county's motion and
denied 	Pacific 	Fisheries' 	motion. 	Pacific 	States 	Marine
Fisheries, 	19 OTR at 356. The court held 	that Pacific
Fisheries is not a "public corporation" within the meaning of
ORS 307.090 and thus was not entitled to an exemption. Id.
at 355. The Tax Court entered judgment in favor of the
county, id. at 356, and Pacific Fisheries appealed to this
court.
ORS 307.112(1) provides that, if a property owner
leases property to a public body (other than the State of
Oregon) and if the public body qualifies for a tax exemption
under ORS 307 .090, then the owner is not subject to property
tax on the leased property. 2 ORS 307.090(1) identifies which
public bodies are eligible for a tax exemption. It provides:
"Except as provided by law, all property of the state and
all public or corporate property used or intended for corpo-
rate purposes of the several counties, cities, towns, school
districts, 	irrigation districts, 	drainage districts, 	ports,
water districts, housing authorities and all other public or
' ORS 307.112{1) provides, in part:
"Real or personal property of a taxable owner held under lease, sublease or
lease-purchase agreement by an institution, organization or public body, other
than the State of Oregon, granted exemption or the right to claim exemption
for any of its property under ORS 307.090 * * is exempt from taxation***."

Cite as 346 Or 117 (2009) 	121
municipal corporations m 	this 	state, is exempt from
taxation."
In this case, the county does not argue that the prop-
erty Pacific Fisheries leased does not constitute "public or
corporate property used or intended for corporate purposes."
Rather, it argues that Pacific Fisheries is not one of the enti-
ties listed in the statute whose property is exempt from tax-
ation. Specifically, it contends that Pacific Fisheries is not a
"public * * * corporatio[n] in this state." Pacific Fisheries, for
its part, does not argue that it is one of the other listed enti-
ties, and the question in this case accordingly reduces to two
issues: whether Pacific Fisheries is a "public corporation"
and, if it is, whether it is a public corporation "in this state."
The Tax Court concluded that Pacific Fisheries is not
a public corporation. Pacific States Marine Fisheries, 19 OTR
at 355. While noting that there is no " 'unified field theory' on
this matter," the court reasoned that the interstate compact
creating Pacific Fisheries does not refer to it as a "corpora-
tion" but refers to it instead as a "commission." Id. at 354-55.
The court noted that some statutes differentiate between
incorporated and unincorporated associations and observed
that other regional compacts use the word "corporation" in
their authorizing statutes. Id. Relying on the omission of the
word "corporation" from the interstate compact creating
Pacific Fisheries, the Tax Court upheld the county's ruling
denying the exemption. Id. at 355.
On appeal, the county adopts the Tax Court's reason-
ing and argues that the interstate compact's failure to desig-
nate Pacific Fisheries as either a corporation or a body cor-
porate precludes it from being a "public corporation." Pacific
Fisheries responds that a public corporation does not need to
be designated as a "corporation" by statute to qualify as a
public corporation within the meaning of the exemption.
Pacific Fisheries proposes that the term "public corporation,"
as used in ORS 307.090, is broader than the narrow interpre-
tation given to it by the Tax Court and includes any "distinct
legal and perpetual entity that was created for public or gov-
ernmental purposes."

122 	Pacific States Marine Fisheries v. Dept. of Rev.
In analyzing the parties' arguments, we begin with
the issue on which the Tax Court's decision turns and that
the county advances in support of that decision-whether the
interstate compact's failure to refer to Pacific Fisheries as a
corporation or body corporate precludes it from being a public
corporation. The county's argument in that regard is incon-
sistent with a long line of cases from this court. In 1881, this
court explained that, although such a designation is one indi-
cia of corporate existence, it is not dispositive. Dunn v. State
University, 9 Or 357, 361 (1881) ("It is true the legislature
has not declared [the board of directors of the University of
Oregon] to be a corporation in express terms, but this was not
essential."). The court made essentially the same point more
than 100 years later in State ex rel Eckles v. Woolley, 302 Or
37, 46, 49, 726 P2d 918 (1986), when it held that SAIF
Corporation, although denominated by statute as an " 'inde-
pendent' corporation," is not the type of corporation to which
Article XI, section 2, of the Oregon Constitution applies.3
If, as this court has held, the failure to designate an
entity as a public corporation is not dispositive, the question
that remains is what are the attributes of a public corpora-
tion. On that point, the court explained in Eckles that "[t]he
concept of a 'public corporation' covers a wide variety of insti-
tutions in this country as well as abroad." 302 Or at 47. The
court also recognized in Eckles that our opinions character-
izing or declining to characterize various entities as public
corporations have to be considered in the specific legal con-
text in which they arose. Id. at 45. As this court explained,
the question whether an entity is a corporation for the pur-
poses of one rule "says little about whether [it] is a 'corpora-
tion' within the meaning of some unrelated rule." Id.
In accord with Eckles, we conclude that the phrase
"public corporation," considered in the abstract, is broad
enough to include Pacific Fisheries. However, considering
that phrase in the context in which the legislature used it in
ORS 307.090, we conclude that Pacific Fisheries is not the
type of public corporation that the legislature intended to
3 Article XI, section 2, provides, in part, that "[c]orporations may be formed
under general laws, but shall not be created by the Legislative Assembly by special
laws."

Cite as 346 Or 117 (2009) 	123
exempt from taxation. We begin with the question whether
Pacific Fisheries is a public corporation at all before turning
to the question whether it is the specific type of public corpo-
ration that is eligible for a tax exemption under ORS 307 .090.
The phrase " 'public corporation' was used as a
generic term" in early Oregon statutes, Eckles, 302 Or at 40
n 2, and has been part of Oregon's tax law since 1910, see
Lord's Oregon Laws, title XXVIII, ch III,§ 3554 (1910) (using
that phrase). A contemporaneous legal dictionary defined a
"corporation" as "[a] body, consisting of one or more natural
persons, established by law, usually for some specific pur-
pose, and continued by a succession of members." John
Bouvier, 1 Law Dictionary 406 (15th ed 1890). And it defined
a "public corporation" as "those [corporations] which are
exclusively instruments of the public interest." Id.
The 	traditional 	distinction between corporations
and unincorporated bodies is that corporations are independ-
ent legal entities; they can sue and be sued, enter into con-
tracts, and have a perpetual existence. See, e.g., William
Blackstone, 1 Commentaries on the Laws of England 463
(1765) 	(including 	those 	powers 	of corporations 	among
others). In Dunn, this court relied on those attributes to con-
clude that the board of directors of the University of Oregon
was a public corporation even though the legislature had not
designated it as such. See 9 Or at 361 (explaining that the
board's authority to accept title to land and "to transmit title
to lands to their successors in office in perpetual succession"
could be exercised only by a corporate entity, leading the
court to conclude that the board was such an entity). 4 Corpo-
rations are not confined to "private" or profit-seeking entities,
and many of the early examples of corporations were govern-
mental entities. Blackstone, 1 Commentaries at 458-59 ("The
king* * * is made a corporation to prevent in general the pos-
sibility of an interregnum or vacancy of the throne, and to
4 Later decisions have divided over whether Dunn correctly decided that the
board of directors was a public corporation; more specifically, some decisions ques-
tioned whether the board was a state agency rather than an independent corporate
entity. See State ex rel Kleinsorge v. Reid, 221Or558, 566-70, 352 P2d 466 (1960)
(summarizing cases). There is no claim that Pacific Fisheries is a state agency, and
the concern that led some of this court's later decisions to question the result in
Dunn is absent here.

124 	Pacific States Marine Fisheries v. Dept. of Rev.
preserve the possessions of the crown entire * * *. Other lay
corporations are erected for the good government of a town or
particular district, as a mayor and commonalty, bailiff and
burgesses, or the like * * *."). Perhaps for that reason, the
United States and its individual states have been described
as corporations. See United States v. Perkins, 163 US 625,
631, 16 S Ct 1073, 41 L Ed 287 (1896) (describing the United
States as "a purely political or governmental corporation");
Eugene McQuillin, 1 The Law of Municipal Corporations
§ 2.03.30 (3d ed 1999) ("Indeed, the view has been expressed
that it cannot be doubted that a state is a corporation."). 5
Applying those principles, we conclude that Pacific
Fisheries qualifies as a public corporation. There is no dis-
pute that Pacific Fisheries serves a public, rather than a pri-
vate, profit-making purpose, and we conclude that Pacific
Fisheries possesses the attributes of a corporation. It has an
independent legal existence: Pacific Fisheries may enter into
contracts, such as the lease at issue in this case, and may sue
and be sued in its own name. See ORS 507.040 art V (author-
izing Pacific Fisheries to establish and maintain offices);
Colbert v. Pacific Fisheries Marine Fisheries, 124 Wash App
821, 104 P3d 17 (2004) (holding that Pacific Fisheries can be
sued in state court). Moreover, Pacific Fisheries continues to
exist until the states that entered into the compact withdraw
from it. See ORS 507 .040 art XI (so providing). Finally, no one
state exercises control over Pacific Fisheries; each state is
simply one voice among others on the commission. For those
reasons, Pacific Fisheries qualifies as a public corporation.
Our conclusion that Pacific Fisheries is a public cor-
poration does not end the inquiry, however. We also must
5 McQuillin explains that a state is a public corporation largely because it oper-
ates as an independent entity:
"A state does not come within the literal terms of any commonly employed
definition of the word 'corporation.' But when viewed in the larger sense, states
have continuous existence, a name, may sue and, under certain circumstances,
may be sued. They have political powers of legislation and administration
applying to the area of their jurisdiction, and they derive their existence and all
their powers from the people, from whom comes also the authority oflegisla-
tures to create private and municipal corporations."
McQuillin, 1 Municipal Corporations § 2.03.30.

Cite as 346 Or 117 (2009) 	125
determine whether Pacific Fisheries is the type of public cor-
poration that qualifies for a tax exemption. The county
argues that, even if Pacific Fisheries "is a corporate entity for
some purposes, it is not a 'public corporation' for purposes of
ORS 307.090." Relying on the principle of ejusdem generis,
the county argues that Pacific Fisheries is not of the same
general nature or class as the other entities listed in ORS
307.090 and thus does not fall within the meaning of "public
corporation" as used in the statute. Specifically, the county
argues that all the entities listed in the statute are political
subdivisions of the state, have distinct boundaries within the
state, are formed to assist local government, and are subject
to control by the State of Oregon. Pacific Fisheries, in con-
trast, is not a political subdivision of Oregon and is not sub-
ject to the control of the State of Oregon.
We begin our analysis of that issue with the words of
ORS 307.090. As noted, that statute exempts "all public or
corporate property used or intended for corporate purposes of
the several counties, cities, towns, school districts, irrigation
districts, drainage districts, ports, water districts, housing
authorities and all other public or municipal corporations in
this state." ORS 307.090 contains two limitations on the type
of corporate entities that will qualify for a tax exemption. The
first limitation is found in the participial phrase "in this
state." Only "public * * * corporations in this state" qualify
for a tax exemption. 6
The phrase "in this state" dates back to the original
version of ORS 307.090(1), which was part of the Deady Code
and which exempted from property taxation "[a]ll public or
corporate property of the several counties, cities, villages,
6 Grammatically, the phrase "in this state" could modify "property" or the enti-
ties listed in the statute. We conclude that the phrase modifies and thus limits the
listed entities for two reasons. First, ORS :307.030(1) provides that "[a]ll real prop-
erty within this state * * * shall be subject to assessment and taxation * * *[.]"
(emphasis added). If the phrase "in this state" in ORS 307.090 modified "property,"
it would add nothing to that statute and be mere surplusage. See State v. K. P., 324
Or 1, 8, 921P2d380 (1996) (noting that this court must attempt to give meaning to
all of the words of a statute). Moreover, the phrase "in this state" follows the list of
entities eligible for a tax exemption, making it likely that the phrase applies to
those entities, not the word property, which appears at the beginning of ORS
307.090. See State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996) (describing the rule
of the last antecedent).

126 	Pacific States Marine Fisheries v. Dept. of Rev.
towns and school districts in this state." General Laws of
Oregon, ch Liii, title I, § 4, p 894 (Deady 1845-1864). As used
initially, the phrase "in this state" appears simply to have
been synonymous with "Oregon"; for example, "counties
* * *in this state" referred to Oregon counties. What is tell-
ing, however, is that the phrase that the legislature has used
in ORS 307.090(1) and its predecessor statutes-"in this
state"-relies on the geographic relationship between the
listed entities and the state to identify which entities were
entitled to a tax exemption.
In 1945, the legislature expanded the list of exempt
entities to include "irrigation districts, drainage districts,
ports, water districts and all other public or municipal cor-
porations in this state." Or Laws 1945, ch 296, § 1. For the
most part, the entities that the legislature added in 1945
share the same characteristics as the entities listed in the
Deady Code. Irrigation districts, drainage districts, water
districts, and municipal corporations in this state refer to
entities whose geographic boundaries are in Oregon and that
serve geographic areas primarily within the state. They are,
in a word, "Oregon" entities.
The addition of "public * * * corporations" to the list
poses a slightly more complex issue because some public cor-
porations may not have distinct geographic boundaries in the
same way that a city, county, school district, or municipal cor-
poration does. Cf. Eckles, 302 Or at 49 (holding that SAIF is a
public corporation). The legislature, however, imposed the
same "in this state" limitation on public corporations that it
imposed on the specific entities listed in ORS 307.090, which
suggests that the legislature intended to impose a compar-
able limitation on public corporations. It follows that, even
though public corporations may not have distinct geographic
boundaries, the phrase "in this state" appears to limit the tax
exemption to public corporations that serve geographic areas
primarily within the state.
The second limitation sheds light on the first. A list
of specific entities precedes the phrase "all other public * * *
corporations." ORS 307.090 (emphasis added). Ordinarily,
we assume that a nonspecific term in a series, such as "all
other public* * *corporations," shares the same qualities as

Cite as 346 Or 117 (2009) 	127
the specific terms that precede it. See Liberty v. State Dept. of
Transportation, 342 Or 11, 20, 148 P3d 909 (2006) (describ-
ing ejusdem generis rule). The legislature's use of that draft-
ing device suggests that, at a minimum, the tax exemption
extends only to those public corporations that, like the enti-
ties that precede it, serve geographic areas primarily "in this
state." There may be other shared characteristics inherent in
the specific entities that precede the phrase "all other public
* * * corporations" and that place further limits on the types
of public corporations that are entitled to a tax exemption,
but we need go no further than that one characteristic-the
geographic area that the entity serves-to resolve this case.
As noted above, Pacific Fisheries is the creature of
an interstate compact. It is not an Oregon public corporation.
The geographic area it serves is not limited primarily to the
State of Oregon; rather, under the terms of the interstate
compact, it represents and serves a multistate area. The
interests and geographic area served by Pacific Fisheries are
regional, and Pacific Fisheries cannot be considered to be
confined geographically within the State of Oregon. An
organization that was created by and includes other states, is
controlled by a board with equal representation from each
state, and is charged with advising the several governments
on issues concerning the region as a whole, is not "in this
state" within the meaning of ORS 307.090(1). It follows that
Pacific Fisheries is not entitled to a property tax exemption
under ORS 307.090 and that the county correctly denied
Pacific Fisheries' application for a tax exemption.7
The judgment of the Tax Court is affirmed.
7 The state could, of course, exempt Pacific Fisheries from property tax if it
chose to do so. But, as the statutes are currently written, Pacific Fisheries is not eli-
gible for an exemption.