Nathan v. Spokane County

• Citation: 35 Wash. 26,76 P. 521
• Parties: NATHAN v. SPOKANE COUNTY et al.
• Decision Date: 19 April 1904
• Court: United States State Supreme Court of Washington

76 P. 521

35 Wash. 26

NATHAN v. SPOKANE COUNTY et al.

Supreme Court of Washington

April 19, 1904

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by A. E. Nathan against Spokane county and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Robertson, Miller & Rosenhaupt, for appellant.

Horace Kimball and Miles Poindexter, for respondents.

PER CURIAM.

This is an action instituted in the superior court of Spokane county by A. E. Nathan, appellant and plaintiff below, against Spokane county, George Mudgett, as county treasurer, and A P. Williams, county assessor of such county, defendants and respondents. The object of the suit is to enjoin the collection of $750 taxes levied upon plaintiff's property for the year 1901. The court below sustained a general demurrer to the complaint. The plaintiff elected to stand on his complaint. The action was thereupon dismissed, and an appeal taken to this court.

The assignments of error present but the one question whether the complaint states sufficient facts to entitle appellant to relief. His brief in this court contains the following statement. 'The action was presented in the court below and is presented now to this court, to determine the constitutionality of section 12, c. 141, p. 295, Sess. Laws 1899.' The transcript discloses that appellant, in order to prevent distraint of his goods and merchandise, deposited $750 in the hands of the county treasurer which, by stipulation, stands in lieu of a levy, if the appellant shall be adjudged to pay the tax. The complaint among other things, alleges that on or about the 10th day of November, 1901, appellant, A. E. Nathan, brought a stock of goods and merchandise from the state of Montana to the city and county of Spokane; that the value placed on such stock by appellant was $8,000; that appellant, immediately upon his arrival in Spokane, commenced doing business as a merchant under the style of A. E. Nathan & Co., and proceeded in the regular and ordinary course of business to dispose of his merchandise at a place of business in said city temporarily used for that purpose, without the intention on the part of appellant of permanently engaging in trade at such place that on or about the 12th day of November, 1901, respondent A. P. Williams, the county assessor of Spokane county, by himself and deputies, came into the store of appellant and notified him that he (the assessor) would forthwith proceed to assess such stock of goods; that appellant then and there offered to show to said assessor the value of such stock, and that the same had been assessed and taxes paid thereon in Montana for the then current year (1901); that such assessor proceeded to assess such merchandise, and on the 12th day of November, 1901, the county treasurer, George Mudgett, came to appellant's said place of business and threatened to distrain appellant's goods unless such taxes were paid; that, in order to prevent such levy, appellant, under protest, deposited the sum of $750 in hands of said Mudgett, not as county treasurer, but as a private individual, pending the final determination of this controversy; and that this has been done with the consent of the prosecuting attorney of Spokane county. The complaint further alleges that the above statute under which this tax levy was made is unconstitutional, for the following reasons: (1) The said enactment provides a different mode and manner of the assessment levied against the property of appellant than is provided for other persons and property similarly situated; (2) that there is no provision made for any board of equalization or other person to hear and determine the matter as to the justness of such tax, and the value of the property sought to be assessed; (3) that it provides for a rebate to persons residing permanently in this state, and is a discrimination against persons temporarily residing therein; (4) that this law is special in its character, and unequal in its application.

The provision of law attacked by appellant is as follows: 'Whenever any person, firm or corporation shall, subsequent to the first day of March of any year, bring or send into any county any stock of goods or merchandise to be sold or disposed of in a place of business temporarily occupied for their sale, without the intention of engaging in permanent trade in such place, the owner, consignee or person in charge of the said goods or merchandise shall immediately notify the county asssessor, and thereupon the assessor shall at once proceed to value the said stock of goods and merchandise at its true value, and upon such valuation the said owner, consignee or person in charge shall pay to the collector of taxes a tax at the rate assessed for state, county and local purposes in the taxing district in the year then current. And it shall not be lawful to sell or dispose of any such goods or merchandise as aforesaid in such taxing district until the assessor shall have been so notified as aforesaid and the tax assessed thereon paid to the collector. Every person, firm or corporation bringing into any county of this state goods or merchandise after the first day of March shall be deemed subject to the provisions of this section: provided, that all persons having paid the tax as herein provided for, shall at the time of the regular assessment next succeeding said payment, be allowed by the county assessor in making his assessment a deduction in a sum equal to that part of the entire assessment of the previous year as the number of days of the previous assessment year he was not in such county bears to the whole of such assessment year.' Laws 1899, p. 295, c. 141, § 12 (Pierce's Code, § 8679; 3 Ballinger's Ann. Codes & St.§ 1740a).

Article 7, § 1, of the Constitution of the state of Washington, provides: 'All property in the state not exempt under the laws of the United States, or under this Constitution, shall be taxed in proportion to its value, to be ascertained as provided by law.' The object and intent of the framers of the Constitution were that all property not exempt by virtue of the provisions of such instrument should bear a tax in proportion to its value; that the listing, assessment, levy, enforcement, and collection of taxes, subject to certain limitations unnecessary to notice in this connection, were and are in the discretion of the Legislature. The expediency of such enactments, within the limitations prescribed by this Constitution, constitutes a subject-matter with which the courts will not intermeddle. The Legislature is a branch of our state government co-ordinate with the executive and judicial. Each department is supreme within its proper sphere. The lawmaking power is vested in the Legislature, under the provisions of our fundamental law. Judge Cooley, in his able treatise entitled Constitutional Limitations (5th Ed.) p. 593, uses the following pertinent language: 'The power to impose taxes is one so unlimited in force and so searching in extent that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation; to every object of industry, use, or enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property.' Again, at page 645 of the same treatise, the learned jurist observes: 'What method shall be devised for the collection of a tax, the Legislature must determine, subject only to such rules, limitations, and restraints as the Constitution of the state may have imposed. Very summary methods are sanctioned by practice and precedent.'

This court, in the case of Johnston v. Whatcom County, 27 Wash. 95, 67 P. 569, construed the above statutory provision as applying to persons, firms, or corporations bringing their goods and merchandise into this state from beyond its boundaries after the 1st day of March, to be sold or disposed of in a place of business temporarily occupied for their sale, without the intention of engaging in permanent trade at such place; holding it did not apply to merchants moving their goods from one county into another within the state after the 1st day of March, when such goods had already been listed and assessed for taxes is the county of the situs of the property at that date for the then current year. It is true that the constitutionality of this statute was not considered in the above case, but the contention of appellant that this enactment is unconstitutional, because it 'provides a different mode and manner of the assessment levied against the property of this appellant than is provided for other persons and other property similarly situated,' is met by the decision of this court in Wright v. Stinson, 16 Wash. 368, 47 P. 761. We held in that case that the migratory stock act (Laws 1895, p. 105, c. 61) was not unconstitutional on account of making distinctions as to the manner of assessment and collection of taxes levied against the different kinds of personal property.

The case of Kelley v. Rhoads, 7 Wyo. 237, 51 P. 593, 39 L. R. A. 594, 75 Am. St. Rep. 904, was in many of its features similar to the case at bar. The court held that the provision of the state Constitution of Wyoming requiring property to be uniformly assessed for taxation does not mean that, in the case of the assessment of all kinds of taxable property, the same officers shall act, or that the proceedings touching the assessment shall be the same; that there is...