Salthouse v. The Board of County Commissioners of The County of McPherson

• Citation: 224 P. 70,115 Kan. 668
• Decision Date: 08 March 1924
• Docket Number: 25,124
• Parties: JOHN T. SALTHOUSE, Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MCPHERSON, Appellant
• Court: United States State Supreme Court of Kansas

224 P. 70

115 Kan. 668

JOHN T. SALTHOUSE, Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MCPHERSON, Appellant

No. 25,124

Supreme Court of Kansas

March 8, 1924

Decided January, 1924.

Appeal from McPherson district court; WILLIAM G. FAIRCHILD, judge.

Judgment modified and affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAXATION--Action to Recover Taxes Unlawfully Collected by Reason of Plaintiff Having Purchased Government Bonds--Exemptions--Injunction--Limitation of Action. The fact that the statute authorizes an aggrieved taxpayer to apply to the state tax commission for relief from various errors including those whereby taxes have been charged upon exempt property, does not prevent one who under compulsion has paid taxes which were invalid because imposed with respect to the ownership of government bonds, under no authority but that of an unconstitutional act, from maintaining an action against the county for its recovery. Nor is such action barred by the fact that the plaintiff might have obtained an injunction against the collection of the taxes.

2. SAME--Action Against County--Treasurer Not a Necessary Party. In an action against the county for the recovery of money unlawfully exacted from a taxpayer the county treasurer is not a necessary party.

3. SAME--Taxes Paid Under Protest--Protest Need Not Be in Writing. Where a tax is paid under protest at a time when such payment is necessary in order to avoid additional expense it is not essential to a right of recovery that the protest should be in writing.

4. SAME--Recovery of Illegal Taxes--Limitation of Action. The fact that a remedy for a void assessment might have been had by application to an administrative body within a limited time does not affect the running of the statute of limitations on a claim against a county for the repayment of the taxes based thereon which were illegally collected.

5. SAME--Claim for Recovery of Illegal Taxes an "Account"--Appeal From County Commissioners. A claim against a county for having collected an illegal tax is an "account" which may be presented to the board of commissioners for allowance or rejection, an appeal to the district court lying from its action.

6. SAME--Judgment Against County--Does Not Bear Interest. A judgment against a county in an action for the repayment of a void tax does not bear interest, the statute providing in general terms that judgments shall bear interest not applying where the state or county is the debtor.

Alex S. Hendry, of McPherson, for the appellant.

G. F. Gratton, of McPherson, for the appellee.

OPINION

MASON, J.:

John T. Salthouse sued McPherson county for the recovery of taxes he had been compelled to pay by reason of having purchased government bonds. Judgment on the pleadings was rendered in favor of the plaintiff and the defendant appeals.

The statute under which the tax was collected has been held to be unconstitutional, being an attempt by the state to tax property which is by the federal law exempt. (Lantz v. Hanna, 111 Kan. 461, 207 P. 767.) The plaintiff was entitled to a return of his money unless his recovery was prevented by purely procedural considerations.

1. The defendant asserts that the plaintiff could not maintain an action against the county for the return of the money illegally taken from him because he was afforded a specific remedy, which was exclusive, by the following statutory provisions:

"The county clerk at any time previous to November 1 may correct any . . . errors whereby taxes have been charged upon property which the constitution or the law specifically exempts from taxation: Povided, That no property shall be stricken from the roll as exempt until authority to so do is obtained from the tax commission; . . ." (R. S. 79-1701.)

"If any taxpayer shall have a grievance not remediable or which has not been remedied under section 1 of this act [of which the foregoing quotation is a part] such grievance may be presented to the tax commission at any time prior to the first day of August of the year succeeding the year when the assessment was made and the taxes charged which are the basis of the grievance, and the said commission shall have full authority to inquire into the grounds of complaint, and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax if uncollected together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected. . . ." (R. S. 79-1702.)

It is argued that one of the purposes of the statute quoted was by a special statute of limitation to impose a requirement of speedy action upon those who wish to challenge the legality of an assessment made against them. The general rule is that the existence of a statutory remedy, in connection with the proceedings for the imposition of the tax, for the correction of an error is exclusive and one who does not avail himself of its benefits has no standing to invoke the aid of the courts to relieve him from the results of the wrongful proceeding. (37 Cyc. 1177.) This is ordinarily applied, however, where the tax is merely irregular and not where it is void. It applies where the wrong consists in an irregularity of procedure, a mistake of fact, or an excessive estimate or other error of judgment, but not where the tax is imposed without jurisdiction, as in the case of an attempt to reach property which is exempt as a matter of law upon the admitted or established facts, or to enforce an unconstitutional statute. In this connection it is said:

"This rule applies to all cases of excessive valuation where the assessing officer or board acts within its jurisdiction. On the other hand, where the defects or errors are jurisdictional, rendering the assessment invalid, the party aggrieved has the right to invoke judicial remedies against the illegal acts of such officer or board." (Clay County v. Brown Lumber Company, 90 Ark. 413, 417, 119 S.W. 251.)

"We do not understand that the property owner or taxpayer is confined to the statutory remedies, where there is an illegal assessment, or attempted assessment, of property or the collection of a tax, and the property is exempt from taxation." (Ryan, &c., v. City of Louisville, 133 Ky. 714, 718, 118 S.W. 992. See, also, Tobey v. Kip, 214 Mass. 477, 101 N.E. 998; Preston v. Boston, 29 Mass. 7; Graham v. City of West Tampa, 71 Fla. 605, 71 So. 926; Layman v. Iowa Telephone Co., 123 Iowa 591, 99 N.W. 205; Powder River Cattle Co. v. Board of Commissioners, 45 F. 323.)

The plaintiff argues, however, that a purpose of the legislature to make the appeal to the tax commission an exclusive remedy is to be inferred from this circumstance: Section 79-1702 as originally enacted concluded with this provision: "No remedy herein provided for shall prevent any taxpayer from pursuing any remedy which can now be given by any court in this state." (Laws 1913, ch. 322, § 2.) When the section was converted into its present form a number of changes were made and the sentence just quoted was omitted. From this the plaintiff infers an intention to forbid a resort to any remedy other than that given by this statute. To us the more reasonable view appears to be that if the legislature--its attention having been specifically directed to the matter--had desired to make the remedy of this statute exclusive in all cases it would have said so expressly; that in merely omitting all reference to the subject it intended the ordinary rule to prevail--that in respect to irregularities a failure to invoke this remedy should be a bar to any other, while in the case of a want of jurisdiction, as where an effort is made to enforce an unconstitutional statute, an action to recover money illegally exacted may still be available. The withdrawal of the express provision left the statute as though it had never been inserted, going neither to the extreme of making the remedy exclusive in all cases on the one hand, nor to...