Bellingham Development Co. v. Whatcom County, 25961.

• Decision Date: 22 July 1936
• Docket Number: 25961.
• Citation: 59 P.2d 920,187 Wash. 15
• Parties: BELLINGHAM DEVELOPMENT CO. v. WHATCOM COUNTY et al.
• Court: Washington Supreme Court

59 P.2d 920

187 Wash. 15

BELLINGHAM DEVELOPMENT CO. v. WHATCOM COUNTY et al.

No. 25961.

Supreme Court of Washington, En Banc.

July 22, 1936

Appeal from Superior Court, Whatcom County; Edwin Gruber, Judge.

Action by the Bellingham Development Company against Whatcom County a municipal corporation of the state of Washington, and Richard C. Atwood, its treasurer. From an adverse judgment the defendants appeal.

Affirmed.

H. W Covalt and Frank W. Radley, both of Bellingham, for appellants.

Abrams & McCush, of Bellingham, for respondent.

MITCHELL Justice.

This action was brought to recover alleged excessive amount of taxes paid under protest on real property in Bellingham on the assessment for 1933. The basis of the action is constructive fraud, in that the property was greatly overvalued; that it was excessively overvalued and assessed compared with assessments on other properties of similar character in that vicinity; and that it was assessed upon a fundamentally wrong basis. The property, consisting of land and improvements thereon, was assessed that year in the sum of $99,650, upon which a tax was levied in the sum of $5,694.20.

On the trial, the decision was in favor of the plaintiff upon all of its allegations and claims of constructive fraud, to the extent of the excessiveness of the assessed value of the property and excess taxes paid, as alleged in the complaint. It was found that the fair, reasonable value of the property for assessment purposes should be reduced to $60,585, and that the taxes should be reduced to $3,459.40. Judgment was entered accordingly for the plaintiff. The defendants have appealed.

The assessment for 1932, by operation of law, became the assessment for 1933. Such is the statutory rule in the absence of certain exceptions, not pertinent here.

Respondent filed a former suit questioning the assessment for 1932, not seeking, however, to recover any money paid on that assessment under protest or otherwise. That suit was voluntarily dismissed by the plaintiff prior to the payment of the taxes under protest involved in the present action, and appellants now contend that by the bringing and dismissal of that suit, together with the fact that prior to the bringing of the present action the respondent entered into a written contract with the county treasurer under the provisions of statutes hereinafter more specifically described, for the payment of current taxes and delinquent taxes of several years' standing on the installment plan, the respondent should not now be permitted to maintain this action questioning the assessment and taxes for 1933.

Estoppel was not pled as a defense, but admit, without deciding, as appellants contend, that there was some proof that presented that issue, there are two answers: (1) It is doubtful if that suit could have been successfully maintained because of the statute against restraining orders to prevent the collection of taxes and sale of property therefor, except in certain cases not important here, as that statute has been construed in Casco Co. v. Thurston County, 163 Wash. 666, 2 P.2d 677, 77 A.L.R. 622, and that therefore that suit has no material or pertinent relation whatever to the present case; and (2) respondent, as the evidence showed, entered into a written contract on May 31, 1934, with the county treasurer to pay current taxes, and also delinquent taxes for several years prior thereto, in installments extending over a number of years from the date of the contract, according to the provisions of chapter 53, Laws of 1933, as amended by chapter 51, Laws of Extraordinary Session of 1933, being Remington's Revised Statutes, 1935, annual pocket part for volume 11, § 11273-2a et seq., which states that no person shall be entitled to the benefit of the act with respect to tax payments which are being or hereafter shall be contested, which provision made it necessary for respondent to dismiss its then pending suit prior to entering into the contract under the statute with the county treasurer for the payment of its taxes. Therefore, respondent, not being entitled to any relief from its action commenced on the 1932 tax and being compelled to dismiss it in order that it might enter into a contract with the county to pay taxes in installments, cannot be said to have accepted the assessed valuation placed upon the property in 1932 as being correct for the year 1933, nor as having waived any right to contest the tax levied upon that assessment in the year 1933.

It is further contended on behalf of the appellants that, by making the contract with the county treasurer, the respondent waived all right to ever question the assessment on the property for the years 1932 and 1933. We cannot agree to that proposition. The contract was entered into under the terms of statutes for the enforcement and collection of taxes which...