Northern P. Ry. Co. v. Snohomish County

• Citation: 101 Wash. 686,172 P. 878
• Decision Date: 29 April 1918
• Docket Number: 14591.
• Parties: NORTHERN PAC. BY. CO. v. SNOHOMISH COUNTY.
• Court: United States State Supreme Court of Washington

172 P. 878

101 Wash. 686

NORTHERN PAC. BY. CO. v. SNOHOMISH COUNTY.

No. 14591.

Supreme Court of Washington

April 29, 1918

Department 2. Appeal from Superior Court, Snohomish County; Ralph C Bell, Judge.

Action by the Northern Pacific Railway Company against Snohomish County. Decree for plaintiff, and defendant appeals. Affirmed.

Holcomb J., dissenting.

Lloyd L. Black and John Sandidge, both of Everett, and E. W. Klein of Snohomish, for appellant.

Geo. I. Reid, J. W. Quick, L. B. Da Ponte, and C. A. Murray, all of Tacoma, for respondent.

ELLIS, C.J.

Plaintiff brought this action to cancel and strike from the tax rolls of Snohomish county certain taxes against its property based upon the levy for city purposes by the city of Snohomish, a city of the third class, for the year 1913, and extended upon the county tax rolls for the year 1916.

The agreed facts are as follows: The city made a levy for the year 1913 of 19.25 mills for all city purposes. That levy was certified for extension on the tax rolls of Snohomish county but at the suit of a taxpayer against the county assessor the extension as to all of the levy in excess of 4.8 mills was by the superior court enjoined as illegal and excessive. On appeal to this court the decree of injunction was affirmed. Whitfield v. Davies, Assessor, 78 Wash. 256, 138 P. 883. Thereafter the levy to the extent of the 4.8 mills which was not enjoined was extended upon the county tax rolls for the year 1913, and the resulting tax as against the property of the plaintiff herein was paid. No attempt was then or thereafter made by the city or county of Snohomish to extend or collect the 14.45 mills which had been so adjudged excessive and illegal until after the passage by the Legislature of 1915 of chapter 176, Laws of 1915, p. 587, entitled 'An act relating to the validation of certain tax levies in cities of the third class, and providing for their collection.'

Subsequent to the passage of the act of 1915 in an action styled State ex rel. Watson, Mayor of the City of Snohomish, v. Davies, County Assessor, a writ of mandate was issued from the superior court for Snohomish county directing the assessor to extend upon the county rolls for the year 1916 the excessive 14.45 mills of the 1913 levy. The extension was accordingly made upon the basis of the 1913 valuation; hence this suit.

Upon these facts the trial court in this action entered a decree canceling the tax levy as against plaintiff's property. The county appeals.

Appellant contends: (1) That the decree in State ex rel. Watson, Mayor, v. Davies, Assessor, supra, is res judicata in this case, or in any event should be followed on the principle of stare decisis; and (2) that the trial court placed an erroneous construction upon chapter 176, Laws 1915. We shall consider these in the order stated.

1. Is the mandate issued in the suit of the mayor of the city against the assessor of the county a bar to this action? We think not. To make a judgment res judicata in a subsequent action there must be a concurrence of identity in four respects: (1) Of subject-matter; (2) of cause of action; (3) of persons and parties; and (4) in the quality of the persons for or against whom the claim is made. 1 Freeman, Judgments (4th Ed.) § 252; 3 Bouvier's Law Dictionary, Rawles' 3d Rev., p. 2910; Atchison, etc., R. Co. v. Com'rs of Jefferson County, 12 Kan. 127, 135, 136; Turner Township v. Williams, 17 S.D. 548, 97 N.W. 842.

Manifestly there is no such concurrence of identity in these two suits. It may be conceded that the subject-matter is the same, and, in a broad sense, that the causes of action are identical, but there the identity vanishes. The parties are not the same either actually or by privity. Neither the plaintiff nor the defendant in the other action appeared in the same quality or capacity as does the plaintiff in this action. The mayor's action was not in his personal quality or capacity as a taxpayer on his own behalf and on behalf of others similarly situated, nor did the county assessor defend in the capacity of a taxpayer. The mayor did not sue nor the assessor defend as a member of a class for himself and others of the same class, as, for instance, in the case of a stockholder's action. Respondent was not a party to the other action either actually or potentially by representation as a member of a class. On the contrary, respondent's interest was and is adverse to that of both parties to the other action in the capacity in which they there appeared. In fact, that whole proceeding was in its purpose adverse to respondent's interest. Respondent had no day in court in that action. The judgment there is not a bar to its action here.

'Of course, to say that a decree rendered pro confesso in an action between two parties, both of whose interests are adverse to the plaintiff's concludes this plaintiff, and bars its rights, is absurd.' Atchison, etc., R. Co. v. Com'rs of Jefferson County, supra.

The rule announced in Stallcup v. Tacoma, 13 Wash. 141, 42 P. 541, 52 Am. St. Rep. 25, relied upon by appellant, has no application to the facts here. The other case cited by appellant in this connection, Waldron v. Snohomish, 41 Wash. 566, 83 P. 1106, is even less apposite. It rested upon specific statutory provisions governing reassessments for local improvements. The general doctrine of res judicata was not involved.

The claim that the decision in the suit of the mayor against the county assessor which was not appealed from should be adhered to under the doctrine of stare decisis is untenable. That doctrine is invoked to preserve rules of law established by decisions of long standing, usually of courts of last resort. There is no evidence in this case that there has been any general acquiescence by the taxpayers affected, in the judgment entered in the mayor's action nor that any vested rights have been acquired thereunder.

2. Did the trial court place an erroneous construction on chapter 176 of the Laws of 1915? We think not. That act, omitting title, reads as follows:

'Section 1. That the tax levies made by cities of the third class for the years 1913, 1914 and prior years are hereby ratified and validated wherever the only reason of the invalidity of such tax levy or levies is that the same were made in excess of the limitation prescribed by statute, or were not apportioned according to the provisions of chapter 108, Laws of 1913; and upon the taking effect of this act, the proper officers are hereby authorized and directed to proceed with the extension, collection and enforcement of the lien of such taxes; and collections heretofore made are hereby ratified: Provided, this act shall not apply to such cities as did not attempt to collect such levies or which cancelled the same.'

It was sustained by this court as constitutional in Owings v Olympia, 88 Wash. 289, 152 P. 1019. Appellant relies upon the body of the act as validating the excess levy of 1913 as extended on the rolls for 1916. Respondent relies upon the proviso as excluding that excess from the purview of the act. The meaning of the body of the act is expressed with reasonable certainty, but it would be difficult to achieve a greater inaccuracy in terms in the same number of words than that presented in the proviso. In the first place, a levy is neither collected nor collectible until it is merged into a tax in specific sums against specific properties by the action of...