Denny v. Wooster, 24874.

• Decision Date: 01 December 1933
• Docket Number: 24874.
• Citation: 175 Wash. 272,27 P.2d 328
• Parties: DENNY v. WOOSTER, County Assessor (CITY OF SEATTLE et al., Interveners.
• Court: Washington Supreme Court

27 P.2d 328

175 Wash. 272

DENNY v. WOOSTER, County Assessor (CITY OF SEATTLE et al., Interveners.

No. 24874.

Supreme Court of Washington, En Banc.

December 1, 1933

Appeal from Superior Court, King County; J. T. Ronald and Robert S Macfarlane, Judges.

Action by Robert Denny against Melvin S. Wooster, as Assessor of King County, wherein John C. Stevenson and others constituting the Board of Commissioners of King County, and the City of Seattle intervened. From a judgment, plaintiff appeals and the City of Seattle cross-appeals.

Affirmed.

McMicken, Ramsey, Rupp & Schweppe and Winlock Miller, Jr., all of Seattle, for appellant.

A. P Van Soelen, J. Ambler Newton, Glen E. Wilson, Robert M Burgunder, Arthur M. Hare, and David J. Williams, all of Seattle, for respondents.

Shorts & Denney and A. A. Booth, all of Seattle, amici curiae.

MITCHELL Justice.

This action was brought by Robert Denny, a resident taxpayer of Seattle, against Melvin S. Wooster, as assessor of King county, to prevent him from extending upon the tax rolls of the county for the year 1933 taxes to be collected in 1934, any levy on behalf of the county of King or on behalf of the city of Seattle in excess of that permitted by Initiative Measure No. 64, approved by the voters at the general election November 8, 1932, effective December 8, 1932, commonly known as to 40-Mill Law, now constituting chapter 4, p. 47, Session Laws 1933, the same being Rem. 1933 Supp. § 11238-1.

It was alleged in the complaint, and also in the amended complaint on which the case was tried, that the threatened action on the part of the assessor involved certain enumerated levies on the part of both the county and the city that were illegal and void. Upon the filing of the complaint and a supporting affidavit by the plaintiff on October 10, 1933, a restraining order was issued and thereafter duly continued in force until the entry of final judgment.

The city of Seattle, by leave of court, appearing separately, filed its complaint in intervention; likewise King county and its commissioners, as the board of county commissioners, by leave of court, filed their complaint in intervention.

The issue, so far as the county was concerned, that is material to the appeal, involved the spreading on the tax rolls of a proposed levy, as to millage of the following general items: (1) Current expense, 10 mills; (2) bond interest and redemption fund and bond sinking fund, 5 mills; and (3) current expense warrant indebtedness for retiring emergency warrants issued during the preceding fiscal year and prior to and still outstanding on December 8, 1932, the effective date of the 40-Mill Law, 4.53 mills.

The issue with respect to the city, now material on the appeal, related to spreading on the tax rolls a proposed levy of one-half mill for the firemen's relief and pension fund, in addition to the limitations provided for in the 40-Mill Law.

The case was tried Before two judges of the superior court for King county. The issue involving the county levy was decided against the plaintiff. The issue relating to the levy of the city was decided against the city. From a judgment accordingly, appeals have been taken.

As a preliminary matter, we notice the only assignment of error on the part of Wooster, King county, and the board of commissioners of King county that 'the court erred in overruling the demurrer on the ground that it did not have jurisdiction of the subject-matter of the action.' The city, by an assignment of error, also raises the same question. The argument in support of the assignment rests upon chapter 62, p. 201, Laws 1931, Rem. Rev. Stat. § 11315-1 et seq., the important portions of which, so far as the present case is concerned, are as follows:

'Section 1. Injunctions and restraining orders shall not be issued or granted to restrain the collection of any tax or any part thereof, or the sale of any property for the nonpayment of any tax or part thereof, except in the following cases:

'(1) Where the law under which the tax is imposed is void; and

'(2) Where the property upon which the tax is imposed is exempt from taxation.

'Sec. 2. In all cases of the levy of taxes for public revenue which are deemed unlawful or excessive by the person, firm or corporation whose property is taxed, or from whom such tax is demanded or enforced, such person, firm or corporation may pay such tax or any part thereof deemed unlawful, under written protest setting forth all of the grounds upon which such tax is claimed to be unlawful or excessive; and thereupon the person, firm or corporation so paying, or his or its legal representatives or assigns, may bring an action in the superior court against the state, county or municipality by whose officers the same was collected, to recover such tax, or any portion thereof, so paid under protest. * * *' Rem. Rev. State. §§ 11315-1, 11315-2.

It is not contended, indeed it could not well be argued, that there would be any lack of jurisdiction in the court in the absence of this statute. In Union Trust Co. v. Spokane County, 145 Wash. 193, 259 P. 9, 10, we quoted, with approval, as being in harmony with the great weight of authority, from Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 62 L.Ed. 211, as follows: 'In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen.'

Following that rule, the principle of which applies here, we must not extend the provisions of the act of 1931 against the granting of restraining orders in cases of this kind 'beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out.' The statute says: 'Injunctions and restraining orders shall not be issued or granted to restrain the collection of any tax or any part thereof.' To make the purpose of the statute plain, it may be compared with a federal statute set out in Casco Co. v. Thurston County, 163 Wash. 666, 2 P.2d 677, 678, 77 A. L. R. 622, against a suit 'for the purpose of restraining the assessment of collection of any tax,' a most extensive field of official conduct, while our statute is limited to the prohibition against the restraint of only the 'collection of any tax or any part thereof.' It follows, therefore, that to give our statute the effect insisted upon by the county and city would violate the established rule against extending such provisions beyond the clear import of the language used.

There is a reason for this construction of the language against granting injunctions with respect to the collection of a tax as distinguished from a levy. A levy is not collectible until merged into a tax in specific sums against specified properties. At the commencement of this action, at the time the judgment was entered, or indeed at the present time, even if these injunctive proceedings had not been brought, a taxpayer could not pay taxes under the levies in question; nor could the county have collected whem by agreement with the taxpayer, or otherwise. It ought not be held that, prior to the right to pay or collect taxes, a taxpayer should be deprived of the right to seek redress against a threatened course of official action leading to the imposition and lien of a void tax. The essential purpose of statutes against injunctive remedies in tax cases is to prevent the delays of legal proceedings interfering with the maintenance and operation of government. But that reason does not apply in such case as this where the appeal to equity is diligent and in sufficient time to avoid evil results.

Reliance is had on Casco Co. v. Thurston County, 163 Wash. 666, 2 P.2d 677, 77 A. L. R. 622. That case, however, was well within the statutory rule against injunctive relief, and properly marks that line of cases. It was not claimed therein that the tax was void or the property exempt from taxation, but that the property was so grossly overvalued for taxation purposes that it resulted in a greatly excessive tax. It involved both questions of law and fact, and was not brought until after the taxes were mature and collectible. That case was clearly within the terms of the act against injunctive remedies; this one is clearly without them.

On the plaintiff's appeal, it is contended that the county levy of 4.53 mills to meet current warrant indebtedness, in addition to 10 mills for current expense, and in addition to 5 mills for bond interest and redemption fund and bond sinking fund, is illegal and void. The argument is that, because section 77, chapter 130, p. 277, Laws Extraordinary Session 1925, provides: 'The tax for the payment of county indebtedness shall not exceed five mills on the dollar of assessed valuation of the property of the county,' and because in the present levy 5 mills is provided with respect to bonds, interest on and retirement of bonds, to them add 4.53 mills to meet current outstanding warrant indebtedness is contrary to the limit fixed by the 1925 act; that is, that so much of the levy for bond and warrant indebtedness as exceeds 5 mills fixed by the 1925 act is illegal and void. Clearly, however, that provision of the law as to the limit to tax is no longer in effect. The law upon that subject now is the 40-Mill Tax Levy Law which appears to be complete when construed according to the general rule with reference to all its parts. For the purposes of this case, that law is as follows:

'Section 1. Except as hereinafter provided, the aggregate of all tax levies upon real and personal...