Etter v. Kronlund, 27331.

• Decision Date: 22 March 1939
• Docket Number: 27331.
• Citation: 198 Wash. 341,88 P.2d 417
• Parties: ETTER et al. v. KRONLUND et al.
• Court: Washington Supreme Court

88 P.2d 417

198 Wash. 341

ETTER et al. v. KRONLUND et al.

No. 27331.

Supreme Court of Washington

March 22, 1939

Department 1.

Action by Gottfried Etter and others against P. E. Kronlund and others, Commissioners of Drainage District No. 22, Pierce County, and others, to have the organization of a drainage district declared void, and to have a tax levied upon the property in the district declared legally ineffective. From a judgment dismissing the action, plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Pierce County; W. O. Chapman, judge.

Emil N Stenberg, of Tacoma, for appellants Etter et al. and Drainage Dist. No. 20, Pierce County.

Tom S Patterson, Russell F. Stark, Pendleton Miller, and Benjamin C. McDonald, all of Seattle, amici curiae.

Harry H. Johnston and John W. Fishburne, both of Tacoma, for respondents Fred Smith et al.

G. E Peterson and B. F. Jacobs, both of Tacoma, for respondents Drainage Dist. No. 22, Kronlund, et al.

MAIN Justice.

This action was brought to have the organization of a drainage district declared void and to have a tax levied upon the property in the district declared legally ineffective.

The plaintiffs are owners of property in the district, and the defendants are the commissioners of the district, the board of county commissioners of Pierce county in which the district was formed, and the county assessor and county treasurer of that county. To the complaint, a demurrer was interposed and overruled. Subsequently, the commissioners of the district and the board of county commissioners answered separately. The case came on for trial, and, with permission of the court, the demurrer was renewed. After some argument on the question, the court indicated that, so far as the tax was concerned, it would rule that the complaint was legally insufficient to raise the question of the validity of the tax. Thereupon, counsel for the plaintiffs, in effect, invited the court to make the same ruling as to the organization of the district. Motion to dismiss was made by the defendants, and sustained. From the judgment dismissing the action, the plaintiffs appeal.

Drainage District No. 22, in Pierce county, was organized during the year 1935. After the commissioners for the district had been elected, they passed a resolution requesting the county assessor to levy a tax upon all the property in the district. This was done, and a tax was levied upon all the property, based upon its assessed value, the same as other general taxes are levied by the assessor. The amount of the tax was spread upon the rolls and certified to the county treasurer. The tax was not based upon benefits to the property in the district.

The first question is whether the appellants had a right to bring this action to test the validity of the tax.

In 1931, the legislature passed an act (Chapter 62, Laws of 1931, p. 201) which covered the matter of actions to recover illegal taxes. Section 1 of this act provides that:

'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.'

It will be observed that, by this section, injunctions and restraining orders cannot be issued to prohibit the collection of any tax, except in the two cases mentioned, one, that the law under which the tax was imposed is void, and the others, that the property upon which the tax is levied is exempt from taxation. Neither of these conditions is present in this case. The law is not void, and the property is not exempt from taxation.

Section 2 of the same act provides that, in all cases of the levy of taxes for public revenue which are deemed unlawful or excessive, the person complaining of the tax may pay the same under written protest, as therein required, and afterwards bring an action to recover the same or any part thereof and thus raise the legality or the excessiveness of the tax.

In re Yakima Amusement Co., 192 Wash. 174, 73 P.2d 519 521, it was held that, by chapter 62,...