Pierce County v. Newman

• Decision Date: 27 September 1946
• Docket Number: 29978.
• Citation: 173 P.2d 127,26 Wn.2d 63
• Parties: PIERCE COUNTY v. NEWMAN et al.
• Court: Washington Supreme Court

173 P.2d 127

26 Wn.2d 63

PIERCE COUNTY v. NEWMAN et al.

No. 29978.

Supreme Court of Washington

September 27, 1946

Department 1

Rehearing Denied Dec. 9, 1946.

Action by Pierce County against Paul Newman, a former county treasurer, and the Massachusetts Bonding & Insurance Company as surety on his bond, to recover amount of certain delinquent taxes, interest and penalties which individual defendant failed to collect. From a judgment of dismissal plaintiff appeals.

Reversed and remanded with directions.

Appeal from Superior Court, Pierce County; H. G. Sutton, judge.

Thor C Tollefson, Theo L. DeBord, and Hardyn B. Soule, all of Tacoma, for appellant.

Bertil E. Johnson, of Tacoma, for respondents.

MILLARD, Justice.

This action was instituted by Pierce county against a former treasurer of that county and his surety to recover on two causes of action: First, defendant treasurer, during the period January 10, 1939 to December 31, 1942, received and collected certain delinquent taxes on the tax rolls of plaintiff county on both real and personal property, but failed to charge, receive or collect, as required by statute interest or penalties on such delinquent taxes, which interest and penalties were unlawfully misappropriated by defendant county treasurer to the benefit of the respective delinquent taxpayers in the amount of $15,268.41. Second defendant county treasurer refused and neglected to collect for the period January 10, 1939 to December 31, 1942 taxes levied and assessed on certain personal property in Pierce county and failed to file the delinquent lists and affidavits of uncollected taxes in the amount of $69,129.86.

The appeal is from the judgment of dismissal rendered upon the plaintiff's refusal to plead further after a demurrer had been sustained to both causes of action on the ground that same had not been commenced within the time limited by statute.

The allegations of fact admitted by the demurrer to be true are as follows: Respondent Newman assumed the duties of a county treasurer for Pierce county January 10, 1939 after having filed his official bond. During his term of office, which expired December 31, 1942, the board of county commissioners for Pierce county levied certain taxes against real and personal property in Pierce county. The county assessor prepared and extended the tax rolls and delivered same to the county auditor who, as required by statute, checked and certified the tax rolls and delivered same to respondent Newman with his warrant attached thereto authorizing the collection of taxes. During the period January 10, 1939 to and including December 31, 1942, respondent treasurer collected real and personal property taxes on property located in the county but did not collect, as required by statute, the interest and penalties on a portion of the real and personal property delinquent taxes in the amount stated above. During the same period of time respondent treasurer refused and neglected to collect taxes levied and assessed against certain personal property in Pierce county and failed to file the delinquent lists and affidavits of uncollected taxes on such personal property.

The complaint was filed May 16, 1945, two years, four and one-half months after the date of expiration of respondent's term of office. The statute of limitations commenced to run against an action on the official bond of respondent treasurer at the end of the term of office in which the cause of action arose.

Counsel for respondents contends that as the action was not commenced until more than two years after the expiration of the county treasurer's term of office it is barred by the statute (Rem.Rev.Stat. sec. 165) which provides that 'An action for relief not hereinBefore provided for shall be commenced within two years after the cause of action shall have accrued.'

It is respondents' position that the gravamen of this action is the failure and negligence of respondent treasurer to perform the duties required of him by statute, hence the action is not upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument, but is an action sounding in tort, therefore governed by the two-year statute of limitations (Rem.Rev.Stat. sec. 165).

In Noble v. Martin, 191 Wash. 39, 70 P.2d 1064, upon which respondents rely, we held that an action to enforce the individual liability of officers of an insolvent bank who knowingly accepted deposits after insolvency was not an action upon a contract in writing or liability, express or implied, arising out of a written instrument, therefore the action was subject to the two-year limitation provided by Rem.Rev.Stat. sec. 165.

To the same effect are the following cases also cited by respondents: Northern Grain & Warehouse Co. v. Holst, 95 Wash. 312, 163 P. 775; Constable v. Duke, 144 Wash. 263, 257 P. 637; and Oregon Washington R. & Nav. Co. v. Seattle Grain Co., 106 Wash. 1, 178 P. 648, 185 P. 583. The cases cited by respondents were instituted by individuals or corporations to recover for damages resulting from the defendant's breach of official duty and were treated as actions sounding in tort, hence, they were within the two-year limitation of Rem.Rev.Stat. sec. 165.

Appellant contends that this is an action upon an express liability and that the limitation applicable to the action is found in Rem.Rev.Stat. sec. 159(3), which reads as follows 'Within three years: * * * An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument;...