Lewiston Water & Power Co. v. Asotin County

• Decision Date: 30 March 1901
• Citation: 24 Wash. 371,64 P. 544
• Court: Washington Supreme Court
• Parties: LEWISTON WATER & POWER CO. v. ASOTIN COUNTY et al.

64 P. 544

24 Wash. 371

LEWISTON WATER & POWER CO. v. ASOTIN COUNTY et al.

Supreme Court of Washington

March 30, 1901

Appeal from superior court, Asotin county; M. M. Godman, Judge.

Proceedings by the Lewiston Water & Power Company against the county of Asotin and others to enjoin the collection of a tax. From a judgment in defendants' favor, plaintiff appeals. Reversed.

Sturdevant & Bailey, for appellant.

Walter Brooks and Gose & Kuykendall, for respondents.

REAVIS C.J.

Appellant commenced suit to enjoin the collection of a tax of $256.60 levied upon its capital stock, assessed at a valuation of $10,000, for the year 1897. The complaint substantially states that appellant is a domestic corporation with a capital stock of $250,000. The corporation was formed for the purpose of acquiring and conveying water by conduits through pipes and canals on Asotin creek, in Asotin county, to and upon adjacent lands, for irrigation and domestic uses and for manufacturing purposes; to generate electric and other power for manufacturing and other purposes; to convey, use, and sell water for mining purposes to hold, convey, and condemn real estate in the states of Washington and Idaho; to borrow money on notes and bonds; and to mortgage property of the company therefor. It is alleged that in March, 1897, plaintiff owned in Asotin county a large amount of real estate subject to assessment, and that it was returned by the assessor at the aggregate value of $58,670 (and a description of the real estate so assessed is set out); that during the same month the personal property of the appellant was assessed; that at the same time the assessor listed and assessed the capital stock of plaintiff at $10,000, and the amount of the tax levied thereon was $256.60; that all the proceeds of the capital stock were invested in the real and personal property assessed; that in August, 1897, the appellant duly appeared before the county board of equalization as the proper time and demanded of the board that the capital stock so listed and assessed be stricken from the rolls and the tax be not extended thereon which request was refused by the board; that all the taxes due have been paid, except the sum of $12.06 assessed and due on the personal property other than the capital stock, which has been duly tendered. Demurrers were filed separately by the respective respondents, each setting up two grounds: (1) That the court has no jurisdiction of the subject-matter of the action; (2) that the amended complaint does not state facts sufficient to constitute a cause of action. The complaint alleges, also, that the assessment of the capital stock of the appellant corporation is illegal and void.

1. Relative to the first ground of demurrer, it may be noted that the complaint alleges that the assessment upon the capital stock is illegal and void. 2 Ballinger's Ann. Codes & St. § 5678, requires the payment or tender of what is justly due on property assessed, but where the assessment is alleged to be void there is no payment or tender required. The plea of payment and tender of the taxes justly admitted to be due, as stated in the complaint, was sufficient, under the rule announced in Landes Estate Co v. Clallam Co., 19 Wash. 569, 53 P. 670. That an action may be maintained against a void assessment or tax levied has been ruled in Benn v. Chehalis Co., 11 Wash. 134, 39 P. 365, and Kinsman v. City of Spokane, 20 Wash. 118, 54 P. 934. The court had jurisdiction of the subject-matter of the action.

2. The complaint is not so clear in its statements as it should be but its allegations, taken together, and as understood by counsel for both parties, seem to sufficiently charge that the assessment levied upon the capital stock of the appellant corporation is void; that the corporation having been duly assessed upon all its property, both real and personal, the valuation of the capital stock could not be added thereto. It is alleged that the capital stock or the proceeds is invested in the real and personal property assessed. It is true that counsel for respondents criticise the language of the complaint as not averring properly that the capital stock is invested in all the property. We think, however, as against a general demurrer, the allegations must be taken to state this fact. It is maintained by counsel for appellant that in the assessment of the shares of capital stock of a domestic corporation, where the property is all assessed to the corporation in which such capital stock is invested, a duplicate assessment and double tax are levied. We think this is correct. Judge Cooley (Cooley, Tax'n [2d Ed.] p. 225) observes of double taxation: 'The same may be said of a tax on the property of a corporation, and also on the capital which is invested in the property. If the latter is taxed as property, this, also, is duplicate taxation, and as much unequal as would be the taxation of a farmer's stock by value, when on the same basis it is taxed as a part of his general property. When, for instance, the money paid in as capital of a manufacturing corporation has been...