State ex rel. Yakima Amusement Co. v. Yakima County

• Citation: 192 Wash. 179,73 P.2d 759
• Decision Date: 15 November 1937
• Docket Number: 26539.
• Parties: STATE ex rel. YAKIMA AMUSEMENT CO. et al. v. YAKIMA COUNTY et al.
• Court: United States State Supreme Court of Washington

73 P.2d 759

192 Wash. 179

STATE ex rel. YAKIMA AMUSEMENT CO. et al. v. YAKIMA COUNTY et al.

No. 26539.

Supreme Court of Washington, En Banc.

November 15, 1937

Appeal from Superior Court, Yakima County; Dolph Barnet, Judge.

Proceeding by the State of Washington, on the relation of the Yakima Amusement Company and another, against Yakima County, a subdivision of the state of Washington, and others. From a judgment of dismissal, the relators appeal.

Reversed.

Cheney & Hutcheson and Walter J. Robinson, Jr., both of Yakima, and Allen & Wilkins, of Seattle, for appellants.

Robert J. Willis and Don M. Tunstall, both of Yakima, for respondents.

MILLARD Justice.

The relators, owners of the property in question instituted this proceeding to restrain the Yakima county board of equalization from proceeding in the matter of increasing the assessed valuation of an unfinished hotel structure on the relators' property, and to obtain, as applied to a situation presented by the facts herein, a declaratory judgment as to the validity of subdivision 5, section 1 chapter 15, pages 55, 57, Laws of 1931 (Rem.Rev.Stat. § 11091, subd. 5). Respondents' demurrer to the relators' second amended and supplemental application for writ of prohibition and for declaratory judgment was sustained by the trial court, which expressed the view that the challenged statute 'would not be unconstitutional in so far as it gives the said tax commission a right to reconvene the board [county board of equalization] for the purpose of considering an increase in valuation.' The relators appealed from the judgment of dismissal following the sustaining of the demurrer.

The facts are as follows: The assessor of Yakima county assessed the unfinished hotel structure upon appellants' land in Yakima, as of the value of $10,000 as of March 1, 1935. Pursuant to the statutory (Rem.Rev.Stat. § 11220) requirements, the county board of equalization convened Monday, July 1, 1935. The matter of the assessment of relators' property was considered by the board, which decided that the question of the reassessment of the property should be brought Before the county board for consideration in the regular way. On July 5, 1935, the relators were served with written notice that on July 9, at 10 a. m., the board would consider the reassessment of relators' property. In that session of the board, the valuation of the property was increased to $50,000. That action was illegal, because service on the relators was not completed in time to give the necessary statutory five days' notice. On the same date the board adjourned its 1935 session. On July 21, 1935, which was subsequent to the expiration of the statutory two weeks' period of the board of equalization, the board petitioned the State Tax Commission to reconvene the Yakima county board of equalization for the purpose of considering and acting upon the question of raising the assessed valuation of the improvements upon the property in question. On July 23, 1935, the State Tax Commission entered an order reconvening the county board of equalization. The reconvened meeting of the county board of equalization could not be held at the time ordered by the State Tax Commission because of the issuance by the trial court of an alternative writ of prohibition. Subsequently, the respondents' demurrer to the amended application and affidavit was sustained. Thereafter, a like petition of the county board of equalization resulted in an order by the State Tax Commission reconvening the county board of equalization, 'for the sole purpose of considering and upon the matter of increasing the assessed valuation of the improvements upon the above described property to such figure as in its judgment and discretion may be deemed proper.'

Pursuant to that order of the State Tax Commission, reconvening it, the county board of equalization met August 24, 1935, and raised the assessed valuation of the hotel property from $10,000 to $50,000.

We are first confronted with a motion by respondents to dismiss the appeal upon the ground that all questions involved in the cause have become moot by virtue of the payment, without protest, by appellant Yakima Amusement Company of all of the taxes, the assessment of which the appellants attack in this action.

The first half of the 1935 taxes was paid without protest May 28, 1936, which was nine months after the commencement of this action, but prior to the date (September 26, 1936) of the entry of the judgment of dismissal. On November 27, 1936, which was subsequent to the entry of the judgment of dismissal, an employee of the Yakima Amusement Company paid, by check dated November 23, 1936, to the treasurer of Yakima county the second half of the taxes assessed against appellants' property. The following typewritten notation appears on the face of the second check: 'Last 1/2 1935 taxes Lots 1, 2, 3, 4 Block 91, Yakima. Paid under protest.'

It is a condition precedent to the maintenance of an action to recover the amount of alleged excessive or unlawful taxes paid by a taxpayer that the payment be made under written protest setting forth all of the grounds upon which such tax is claimed to be unlawful or excessive.

'In all cases of the levy of taxes for public revenue which are deemed unlawful or excessive by the person, firm or corporation whose property is taxed, or from whom such tax is demanded or enforced, such person, firm or corporation may pay such tax or any part thereof deemed unlawful, under written protest setting forth all of the grounds upon which such tax is claimed to be unlawful or excessive; and thereupon the person, firm or corporation so paying, or his or its legal representatives or assigns, may bring an action in the superior court against the state, county or municipality by whose officers the same was collected, to recover such tax, or any portion thereof, so paid under protest.' Laws 1931, c. 62, p. 201, § 2, Rem.Rev.Stat. § 11315-2.

It is argued by appellants that by the original complaint in this proceeding the county treasurer was apprised at the time of its service upon him of the grounds upon which the tax was claimed to be unlawful. Clearly, such information does not constitute the 'written protest' which is a condition precedent to the maintenance of an action to recover illegal taxes. It has been held, however, that when the questions involved are of great public interest, and the real merits of the controversy are unsettled, the court will consider the questions involved, notwithstanding the fact that they have become moot. O'Laughlin v. Carlson, 30 N.D. 213, 152 N.W. 675.

In the case cited, the defendant county auditor appealed from a judgment in a mandamus proceeding commanding the auditor to receive and file the nominating petition of the plaintiff and cause the plaintiff's name to be printed on the official ballot to be used at the general election on November 3, 1914. In the opinion filed April 16, 1915 (which was subsequent to the election), the Supreme Court of North Dakota said: 'The sole question presented by this appeal is whether or not chapter 123 of the Session Laws of 1913 (section 3264, Compiled Laws) is constitutional. The contention of the relator is that this law is unconstitutional, and that for that reason the term of office of said Johnson, as county commissioner of the second commissioner district, would be for the period of four years only, from and after the first Monday in January, 1915. The defendant, on the other hand, contends that this law is constitutional, and hence that the term of office of Johnson, as commissioner, does not expire until January 1, 1917, and hence necessarily no commissioner could be elected for this district at the election to be held on November 3, 1914. As the election has been held, the question of whether or not the judgment appealed from ought to be affirmed or reversed is to some extent moot; but as that decision directly involved the duration of the term of office of R. D. Johnson, the then incumbent, and also involved the constitutionality of the act in question, it is obvious that the real question presented is of great public interest, and still remains unsettled, and under such circumstances this court will determine the real questions at issue. State ex rel. Dakota Trust Co. v. Stutsman, 24 N.D. 68, 139 N.W. 83, Ann.Cas.1914D, 776. See, also, Re Madden, 148 N.Y. 136, 42 N.E. 534.' 30 N.D. 213, 152 N.W. 675, 676.

This is not an action for the recovery of...