Drachman v. Jay

• Decision Date: 17 August 1966
• Docket Number: CA-CIV,No. 2,2
• Citation: 417 P.2d 704,4 Ariz.App. 70
• Parties: Richard M. DRACHMAN, Fanchon Drachman and Campbell Plaza Co., a Limited Partnership, Appellants, v. Thomas JAY, Dennis Weaver and Peter Rubi, as members of and constituting the Board of Equalization and the Board of Supervisors of Pima County, Arizona, A. E. Bade, Pima County, Assessor, Carroll H. Christian, Pima County Treasurer, and William Stanford, Warren Peterson and Thad Moore, as members of and constituting the State Tax Commission and State Board of Equalization of Arizona, Appellees. * 259.
• Court: Arizona Court of Appeals

Page 704

417 P.2d 704

4 Ariz.App. 70

Richard M. DRACHMAN, Fanchon Drachman and Campbell Plaza Co., a Limited Partnership, Appellants, v. Thomas JAY, Dennis Weaver and Peter Rubi, as members of and constituting the Board of Equalization and the Board of Supervisors of Pima County, Arizona, A. E. Bade, Pima County, Assessor, Carroll H. Christian, Pima County Treasurer, and William Stanford, Warren Peterson and Thad Moore, as members of and constituting the State Tax Commission and State Board of Equalization of Arizona, Appellees. ^*

No. 2 CA-CIV 259.

Court of Appeals of Arizona.

Aug. 17, 1966.

Rehearing Denied Sept. 13, 1966.

Review Denied Oct. 25, 1966.

Boyle, Bilby, Thompson & Shoenhair, By Marvin S. Cohen, Tucson, for appellants.

Robert N. Hillock, Sp. Deputy County Atty., for Pima County, Tucson, for appellees Jay, Weaver and Rubi.

Darrell F. Smith, Atty. Gen., James D. Winter, Asst. Atty. Gen., Phoenix, for appellee State Bd. of Equalization.

William J. Schafer, III, Pima County Atty., Rose Silver, Chief Civil Deputy County Atty., for Pima County, Manuel Avalos, Deputy County Atty., for Pima County, Tucson, for appellees Bade and Christian.

Robert Corbin, Maricopa County Atty., Olgerd W. Kalyna, Sp. Deputy County Atty., for Maricopa County, Henry J. Florence, Deputy County Atty., for Maricopa County, Phoenix, for Maricopa County, State of Arizona, as amicus curiae.

MOLLOY, Judge.

Appellants (plaintiffs below) have taken this appeal from an Order of the Superior Court, Pima County, dissolving a temporary restraining order and denying a petition for preliminary injunction in an action instituted by the plaintiffs wherein they sought to enjoin the Pima County assessing officials from extending assessments of plaintiffs' realty improvements on the 1964 assessment and tax rolls at more than twelve and one-half per cent of the full cash value alleged by plaintiffs.

The plaintiffs' claim for injunctive relief was predicated upon the alleged illegal and discriminatory practices of the Pima County Assessor in: (1) assessing property at varying percentages of full cash value; and (2) basing his determination of full cash value solely on cost of construction, less depreciation, without consideration of other factors affecting value. In 1963, the plaintiffs had prosecuted to a successful conclusion in superior court a like suit with regard to the 1963 taxes, and injunctive relief was granted in accordance with their prayer. ¹ Similar relief in this case was denied by the same court for the reason that since the filing of the prior action and before the filing of this one, the legislature had amended A.R.S. § 42--204 in the manner hereinafter discussed.

The appellees raise the question of the appealability of the subject order contending that the dissolving of a temporary restraining order is not appealable and that the language in the order in question, specifically denying a preliminary injunction, is 'verbiage without meaning.' There is no authority cited in support of this contention, and we are unable to agree. An order 'granting or dissolving an injunction' is an appealable order. A.R.S. § 12--2101, subsec. F, par. 2. A temporary restraining order is a species of an injunction. Firchau v. Barringer Crater Co., 86 Ariz. 215, 219, 344 P.2d 486 (1959). However, we refuse to commit ourselves in this case as to whether an appeal from an order dissolving a temporary restraining order alone would be appealable. We consider the order refusing a preliminary injunction to be in no sense 'verbiage without meaning' and hold this matter to be properly before us as an appeal from this order.

The plaintiffs' complaint did not allege that the 1964 taxes had been paid or would be paid, under protest or otherwise.

The appellants attack the judgment below on two bases:

1. A.R.S. § 42--204, as amended in 1964, does not prevent the courts from enjoining the extension upon the tax roll of an illegal and void assessment.

2. If A.R.S. § 42--204, as amended, does so prohibit this action, it is unconstitutional, as violative of the due process clauses of the Arizona and United States Constitutions, on the theory that no other adequate remedy is available to property owners against the imposition of taxes based upon illegal and void assessments.

A.R.S. § 42--204, after its amendment effective March 26, 1964, reads as follows (underlined portions added by Chapter 40, Section 1, Laws of 1964):

'A. Any person upon whom a tax has been imposed or levied under any law relating to taxation shall not be permitted to test the validity Or amount thereof, either as plaintiff or defendant, unless the tax is first paid to the county treasurer authorized to collect the tax, together with all penalties thereon.

'B. No injunction shall issue in any action or proceeding in any court against the state Of an officer thereof, or against any county, municipality or officer thereof, to prevent or enjoin The extending upon the tax roll of any assessment made for tax purposes, or the collection of any tax imposed or levied.

'C. After payment of the tax, an action may be maintained to recover any tax illegally collected, and if the tax due is determined to be less than the amount paid, the excess shall be refunded in the manner provided by this chapter.'

Plaintiffs' contention is based upon the principles enunciated by the Supreme Court of Arizona in McCluskey v. Sparks, 80 Ariz. 15, 291 P.2d 791 (1955); Sparks v. McCluskey, 84 Ariz. 283, 327 P.2d 295 (1958) and Southern Pacific Company v. Cochise County, 92 Ariz. 395, 377 P.2d 770 (1963). At the outset we must point out that in neither McCluskey nor Southern Pacific was the court confronted with as specific a statutory prohibition against injunction as is herein involved.

In holding that the old A.R.S. § 42--204, subsec. B did not prevent the relief asked in the Southern Pacific action, our court pointed out that the taxpayer was not seeking 'to prohibit or enjoin the collection of a tax' (92 Ariz. 402, 377 P.2d 775) but rather was seeking to prevent taxing officials 'in the future from assessing appellant's properties in an amount in excess of the percentage of the full cash value at which other properties are assessed or in the alternative to compel in the future the assessment of all properties at full cash value.' (92 Ariz. 402, 377 P.2d 775.) The court further justified its position by quoting language enunciated in Crane Company v. Arizona State Tax Commission, 63 Ariz. 426, 445, 163 P.2d 656, 163 A.L.R. 261 (1945) in that portion of the opinion directed towards Sec. 26--104, Code of 1939, (now A.R.S. § 12--1802) prohibiting an injunction '* * * to prevent the execution of a public statute, by officers of the law, for the public benefit.' Part of the language so quoted is:

'Here the injunction is sought not to prevent the execution of the statute but to prohibit wrongful action on the part of the defendants Under the quise of its enforcement or execution.' (Emphasis added) 92 Ariz. 403, 377 P.2d 776.

The language in Crane immediately preceding this quote is:

'Regardless of the statute, it has always been the law that courts will not interfere to prevent the execution of a public statute by officers of the laws. The act is merely an affirmation of the general rule on the subject.' (Emphasis added) 63 Ariz. 445, 163 P.2d 664.

In the Crane case, the court, in holding that an attempt by the Tax Commission to collect a nonexistent tax was illegal and a proper subject of injunction, stated:

'In so holding, we do not mean to depart from the statements made in Santa Fe Trail Transp. Co. v. Bowles, 62 Ariz. 177, 156 P.2d 722. In effect, we said in that case, the right afforded by the statutes to pay the taxes under protest and recover is in most cases an adequate remedy. We do not mean to say here that an injunction will lie in all cases where a tax is illegally imposed. If the payment of the tax under protest and suit for recovery constitutes, as it ordinarily does, an adequate remedy at law, that course must be followed. Here, however, as we have pointed out, unless the tax is enjoined the result will be a multiplicity of suits, and, therefore, the remedy at law is not adequate.' (Emphasis added) 63 Ariz. 447, 163 P.2d 665.

Thus we see that in both Crane and Southern Pacific there was an added element, lacking here. Crane admittedly relied upon a multiplicity of actions as a basis for granting relief, and in Southern Pacific, accrued taxes were paid under protest, relief was asked as to future assessments and the complaint sought, in the alternative, broad relief requiring taxing officials to comply with the law as to all property. Here the taxpayers' equitable claim is directed to a single year's assessments for a single piece of property.

The historical background of A.R.S. § 42--204, as amended in 1964, i.e., its passage in the wake of the Southern Pacific decision, illuminates the intent of the legislature in passing it. Cf. City of Mesa v. Killingsworth, 96 Ariz. 290, 394 P.2d 410 (1964). We believe the legislature clearly manifested its intent that the collection of revenues not be interfered with by the form of injunctive relief sought here.

The philosophy underlying statutes of this character is that the government not be hampered or interfered with in the collection of revenues so essential to the sustenance of governmental functions. State ex rel. Lane v. Superior Court, 72 Ariz. 388, 236 P.2d 461 (1951).

Plaintiffs contend that, despite the clear directive of this amendment, when an assessing official proposes to act outside his authority in making and extending upon the tax roll an assessment based on an illegal practice he is still subject to judicial restraint by injunction. In the case of Snyder v. Marks, 109 U.S. 189, 3 S.Ct. 157, 27 L.Ed. 901 (1883), a similar argument was advanced by the taxpayer that the statute prohibiting injunction was meant to apply only to a...