Peterson v. Central Arizona Light & Power Co., Civil 4202

• Decision Date: 12 November 1940
• Docket Number: Civil 4202
• Citation: 107 P.2d 205,56 Ariz. 231
• Parties: C. W. PETERSON, JOHN A. FOOTE and GEORGE FRYE as Members of and Constituting the Board of Supervisors of Maricopa County, Arizona; ED OGLESBY, as County Treasurer and Ex-officio Tax Collector of Maricopa County, Arizona, and MARICOPA COUNTY, ARIZONA, Appellants, v. CENTRAL ARIZONA LIGHT AND POWER COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

107 P.2d 205

56 Ariz. 231

C. W. PETERSON, JOHN A. FOOTE and GEORGE FRYE as Members of and Constituting the Board of Supervisors of Maricopa County, Arizona; ED OGLESBY, as County Treasurer and Ex-officio Tax Collector of Maricopa County, Arizona, and MARICOPA COUNTY, ARIZONA, Appellants, v. CENTRAL ARIZONA LIGHT AND POWER COMPANY, a Corporation, Appellee

Civil No. 4202

Supreme Court of Arizona

November 12, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgment affirmed.

Mr Richard F. Harless, County Attorney, and Mr. Leslie C. Hardy Deputy County Attorney, for Appellants.

Messrs Armstrong, Kramer, Morrison, Roche & Duffy, for Appellee.

OPINION

LOCKWOOD, J.

Central Arizona Light and Power Company, a corporation, hereinafter called plaintiff, filed an action in the superior court of Maricopa county for a declaratory judgment against the members of the board of supervisors, the county treasurer and the county itself, hereinafter called the defendants. Judgment was rendered for plaintiff, and defendants have appealed. The facts are very little in dispute, and may be stated as follows: Plaintiff is a corporation with its principal office in Phoenix. For the years 1933-34-35 the board of supervisors, hereinafter called the board, levied certain taxes upon plaintiff's property situated in the county. Plaintiff, being dissatisfied with the assessment and taxes for these years, protested them before the county and state boards of equalization because, as it was claimed, they were illegal, arbitrary and discriminatory, which protests were denied. In November, 1933, an attorney for plaintiff conferred with a deputy county attorney of the county and advised him that plaintiff intended to make a tender of the amount which it admitted to be due, in order to protect its rights in an injunction suit which it intended to file in the federal court. The deputy stated he would advise the county treasurer not to accept the amount tendered, as the law forbade him to accept less than the full installment of taxes due. Plaintiff's attorney then proposed that it would pay the amount without prejudice to the county's right to collect the balance, or plaintiff's right to contest the validity of the proposed collection. The effect of chapter 60, of the Session Laws of 1933, was discussed with the deputy, and was stated by plaintiff to be the reason the tender was to be made without prejudice. Thereafter, and on November 6, 1933, and before the first installment of taxes for that year were delinquent, plaintiff tendered, in writing, to the county treasurer $97,381.45, which was $82,030.85 less than the taxes levied for that installment. This tender was rejected, on the ground that the amount tendered was less than the amount shown by the roll.

Subsequently plaintiff filed separate suits in the District Court of the United States, praying for an injunction against the collection of the taxes as levied. While the suit relating to the 1933 taxes was pending, and about May 3, 1934, an attorney for plaintiff conferred with a member of the state tax commission, an assistant attorney general, the county treasurer of Maricopa county, and a deputy county attorney of that county concerning the payment without prejudice of the amounts tendered in November, 1933, and April, 1934. As a result it was agreed that it should be stipulated that the United States district court might enter an order authorizing the county treasurer to accept the amounts tendered, without prejudice to either party, and a stipulation was duly entered into and the county treasurer accepted the amounts tendered from time to time for the taxes for the three years in question, and gave his temporary receipt therefor. During the pendency of all these suits in the United States district court, defendants filed motions to dismiss, all of which were denied.

On August 31, 1937, plaintiff paid the balance of the taxes levied and assessed for each of the years in question and which it had previously disputed, together with the statutory penalties thereon. This amount was paid in accordance with the statement rendered by the county treasurer's office, but it did not include any penalty computed upon the amounts which had been tendered and accepted subject to stipulation as above, from their respective tax installment delinquency dates. Shortly thereafter the suits in the federal court were dismissed. After these payments had been made, the board demanded payment by the plaintiff of the statutory penalties on the amounts tendered without prejudice, but plaintiff denied that any further amount was due from it. No action to collect the penalties having been brought by defendants, plaintiff instituted this action, praying for a declaratory judgment to determine whether the penalties were due.

The first question for our consideration is whether a declaratory judgment will lie in a case of this nature. Our declaratory judgment statute, being section 4385, Revised Code of 1928, so far as material to this case, reads as follows:

"Declaratory judgments authorized; form and effect. Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed, and the action shall not be open to the objection that a declaratory judgment only is prayed for. The judgment may be either affirmative or negative, and has the force and effect of a final judgment, subject to appeal as in other actions."

It is urged by defendants that at the time plaintiff made the tender of the amounts on which a penalty is now sought to be collected, it had an adequate remedy by paying the taxes involved, under protest, and appealing to the superior court to litigate the correctness of the valuation placed on its property, under sections 3090 and 3065, Revised Code of 1928, or it might have paid them under protest and sued to collect the back taxes illegally assessed, under section 3136, Revised Code of 1928, and that a declaratory judgment action does not lie in such circumstances.

We are of the opinion that in the absence of a statute expressly forbidding it to use that remedy, plaintiff might invoke the provisions of the Declaratory Judgment Act. In the first place, the total tax has been paid, and thereby its validity admitted; it is the validity of the penalty only on the tax tendered which is now in question. The amount which a taxpayer is required by our statutes to pay, in addition to the tax imposed when such tax is not paid before the date of delinquency, has been held by this court to be a penalty and no part of the taxes themselves. Biles v. Robey, 43 Ariz. 276, 30 P.2d 841. The sections above referred to provide a method to recover only taxes illegally assessed and paid, and do not cover any penalties alleged to be due on taxes tendered but not accepted.

In the second place, the Declaratory Jugment Act expressly provides that it may be resorted to whether further relief is or could be claimed, and that it "shall not be open to the objection that a declaratory judgment only is prayed for." The original act, adopted as chapter 10 of the Session Laws of 1927, reads, in part, as follows:

"Section 12. This Act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered."

We have held that when a previously existing law is carried forward into the Revised Code of 1928, it is presumed to be the...