O'Brien v. Johnson

• Decision Date: 24 January 1949
• Docket Number: 30637.
• Citation: 202 P.2d 248,32 Wn.2d 404
• Court: Washington Supreme Court
• Parties: O'BRIEN v. JOHNSON, County Treasurer.

202 P.2d 248

32 Wn.2d 404

O'BRIEN v. JOHNSON, County Treasurer.

No. 30637.

Supreme Court of Washington, En Banc.

January 24, 1949

Action by Stephen J. O'Brien against L. R. Johnson, Treasurer of Pierce County, Wash., to enjoin defendant from seizing and distraining property of plaintiff to collect personal property taxes. From a judgment of dismissal, plaintiff appeals.

Judgment reversed and cause remanded with instructions.

Appeal from Superior Court, Pierce County; Hugh. J. rosellini judge.

Fred C Dorsey and Frank J. Ruff, both of Tacoma, for appellant.

Patrick M. Steele, Hardyn B. Soule and John B. Krilich, all of Tacoma, for respondent.

HILL, Justice.

We are confronted with the following question: May an injunction ever issue to restrain a county treasurer from seizing or distraining personal property to enforce the payment of personal property taxes which have been paid when the date on which the tax sought to be collected was first due is so long past that the remedy given to the taxpayer by the provisions of Rem.Rev.Stat. (Sup.) § 11315-2, is no longer available?

We must, in answering that question, give consideration to some of the provisions of chapter 62 of the Laws of 1931 Rem.Rev.Stat. §§ 11315-1 to 11315-8, inclusive, as amended by chapter 11 of the Laws of 1937 and chapter 206 of the Laws of 1939. Rem.Rev.Stat. § 11315-1, provides that the collection of any tax shall not be restrained or enjoined except (1) where the law under which the tax is imposed is void, or (2) where the property upon which the tax is imposed is exempt from taxation. The following section, Rem.Rev.Stat. (Sup.) § 11315-2, gives what was supposed to be an adequate remedy for any taxpayer by providing for payment of taxes under protest with the right to maintain an action to recover the amount so paid. This remedy is adequate in most cases. However Rem.Rev.Stat. (Sup.) § 11315-6, provides:

'* * * No action instituted pursuant to this act or otherwise to recover any tax levied or assessed subsequent to the passage of this act shall be commenced after the 30th day of the next succeeding June following the year in which said tax became payable.'

The question as heretofore stated comes Before us by reason of an appeal from a judgment of dismissal entered after a demurrer had been sustained to the appellant's complaint, which alleged that the treasurer of Pierce county was threatening to and would, unless restrained, seize and distrain property of the appellant in 1947, to collect personal property taxes for the years 1931, 1932, 1933, 1934 and 1936. The complaint further alleged that the taxes in question had theretofore been paid. A temporary restraining order pendente lite was prayed for, with a permanent injunction or restraining order to follow.

The appellant points out and the respondent agrees that, even if the appellant were to pay the taxes for the years 1931, 1932, 1933, 1934 and 1936 under protest, Rem. Rev. Stat. (Sup.) § 11315-6, supra, bars any action to recover the amount so paid. The appellant does not contend that the taxes for those years are void or that the property upon which the tax is imposed is exempt from taxation, but alleges that the taxes for those years have been paid. He has, therefore, no alternative but to pay the taxes again (with no right to maintain an action to recover the taxes so paid) or permit the county to distrain his personal property and sell the same. Rem.Rev.Stat. (Sup.) § 11315-2, as limited by Rem.Rev.Stat. (Sup.) § 11315-6, presents no remedy, adequate or otherwise, to a taxpayer in the position of the appellant.

The trial court, while appreciative of the appellant's dilemma and of the fact that he had no adequate remedy, was of the view that the demurrer to the appellant's complaint must be sustained because we had ruled on the specific question presented, in Andersen v. King County, 18 Wash.2d 176, 138 P.2d 872, 873, in which we said:

'Under our statute, the court has no jurisdiction to grant injunctions restraining the collection of taxes except in cases 'where the law under which the tax is imposed is void;' and 'where the property upon which the tax is imposed is exempt from taxation.' * * *

'The fact that respondents claim and allege that the taxes were paid cannot serve to extend the jurisdiction of the court beyond the bounds fixed by the statute. To hold that the court has jurisdiction to issue an injunction upon such an allegation would be nothing short of judicial legislation. Such a holding would simply inject into the statute a further exception which the legislature did not see fit to include. * * *

'Payment is, of course, a defense to any action brought to collect taxes or foreclose a tax lien. Naturally, in distraint proceedings, the defense of payment is not available to the taxpayer. But the statute has substituted what is universally held to be an adequate remedy; payment of the tax under...