Mullen v. Sackett

• Decision Date: 24 February 1896
• Citation: 44 P. 136,14 Wash. 100
• Parties: MULLEN v. SACKETT, AUDITOR.
• Court: Washington Supreme Court

44 P. 136

14 Wash. 100

MULLEN v. SACKETT, AUDITOR.

Supreme Court of Washington

February 24, 1896

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by D. H. Mullen against C. E. Sackett, auditor, to compel the issuance of certain warrants. From a judgment overruling a demurrer to the answer, plaintiff appeals. Reversed.

Austin E. Griffiths, for appellant.

J. B Bridges, for respondent.

HOYT C.J.

Plaintiff was the owner of certain allowed claims against the county of Chehalis, and brought this proceeding to compel the auditor to issue warrants upon the county treasurer in his favor for their respective amounts. The sufficiency of the petition was not challenged, and the facts therein alleged were admitted by the answer of respondent and the only reason stated therein why he did not issue the warrants was that, at the time the services were rendered for which the claims had been allowed, the county was indebted in an amount in excess of 1 1/2 per cent. of the assessed valuation of the property therein, as shown by the last assessment roll. The fact that the indebtedness exceeded that amount was alleged in the answer, but it is clear from statements made in connection with such allegation that, in estimating the amount of such indebtedness, no deduction was made from the total on account of unpaid taxes for which the property against which they were assessed had not been sold to satisfy them. In State v. Hopkins (just decided by this court) 44 P. 134, it was held that the amount of indebtedness, within the meaning of the constitutional prohibition, was the total amount of indebtedness less the amount of such unpaid taxes. It follows that the facts stated in the answer were not sufficient to justify the action of the auditor in refusing to issue the warrants if there were any taxes remaining uncollected on any of the assessment rolls of the county. If there were such taxes remaining unpaid, it was the duty of the auditor to have shown the amount thereof, and that, after such amount had been deducted from the total indebtedness, the balance exceeded the 1 1/2 per cent.

The record is silent as to whether or not there were uncollected taxes upon any of the assessment rolls of the county, and, if the decision is to be founded upon the existence of such unpaid taxes, it will be because it is the duty of this court to take judicial notice of such fact. We think it our duty so to...