State v. Superior Court for Stevens County

• Decision Date: 22 November 1916
• Docket Number: 13754.
• Citation: 161 P. 77,93 Wash. 433
• Court: Washington Supreme Court
• Parties: STATE ex rel. FIRST THOUGHT GOLD MINES, Limited, v. SUPERIOR COURT FOR STEVENS COUNTY et al.

161 P. 77

93 Wash. 433

STATE ex rel. FIRST THOUGHT GOLD MINES, Limited, v. SUPERIOR COURT FOR STEVENS COUNTY et al.

No. 13754.

Supreme Court of Washington

November 22, 1916

Department 1. Original mandamus proceedings by the State of Washington on the relation of the First Thought Gold Mines, Limited, a corporation, against the Superior Court for Stevens County Washington, and W. H. Jackson, judge thereof. Writ issued.

L. C Jesseph, of Colville, for relator.

Howard W. Stull and H. Wade Bailey, both of Colville, for defendants.

CHADWICK J.

This case is an aftermath of the case of First Thought Gold Mines Ltd., v. Stevens County, reported in 91 Wash. at page 437, 157 P. 1080, reference to which should be made for all material antecedent facts. When the remittitur went down, counsel for the appellant, relator here, prepared a judgment for an amount equal to an assessment at the established rate upon the values fixed by this court. The prosecuting attorney objected to the form of the judgment, in that it did not provide for interest at the rate of 15 per cent. per annum covering the period of delinquency. The court was of opinion that the judgment should have provided for the payment of interest at the rate of 15 per cent. per annum on the taxes found by this court to be due, and accordingly refused to sign the judgment. Whereupon the appellant sued out an original writ of mandamus in this court to compel the entry of the judgment.

It is provided that all delinquent taxes shall draw interest at the rate of 15 per cent. per annum from the date of delinquency. Rem. 1915 Code, § 9219. There seems to have been no provision made by statute for the payment of interest, or the remission of interest, where the tax is questioned either in whole or in part, and we are driven to the general principles of the law as they are to be gathered from the adjudged decisions.

Cottle v. Union Pacific R. Co., 201 F. 39, 119 C. C. A. 371, is one of the best considered cases that has been called to our attention, and from the many authorities cited therein we gather the following as established principles: That a tax, void entirely, gives no rights and will carry no penalties either by way of interest or otherwise; that a tax valid in part and void in part will carry a penalty, either by way of interest or otherwise, to the extent that it is valid, if the amount of the tax which is valid can be reasonably ascertained, and, unless tender is made of the amount legally due, interest and penalties will attach from the date of delinquency; that where the amount of the tax is not divisible or the amount that ought to be paid cannot be readily ascertained, as where the tax is so excessive as to warrant a holding that it is arbitrary and therefore constructively fraudulent as to the excess, the tax is nevertheless legal within the legal power to tax, and is void only as to the unlawful excess. It is also well established that interest upon a delinquency is no part of a tax. It is sustained only as a penalty to insure prompt payment. People ex rel. v. Peacock, 98 Ill. 172. And this is so whether the penalty be in the way of interest, the addition of a certain per cent., or by doubling the tax. Desty on Taxation, § 130.

Interest upon delinquent taxes is a penalty, and not interest, within the general acceptation that it is a consideration for the forbearance of money. Evansville & Terre Haute R. Co. v. West, 139 Ind. 254, 37 N.E. 1009. This principle is most frequently illustrated in that line of cases holding that, where the Legislature passes a law for the taxation of property theretofore omitted as a subject of taxation, it cannot provide for interest from some antecedent date, but must provide some future time within which the tax must be paid after which interest may be demanded. In other words, even the state cannot take more than the actual tax, whether under the guise of interest or otherwise, until the taxpayer has failed or omitted to perform a duty imposed by law.

Where a taxpayer has suffered an excessive assessment, he may tender a sum that he considers to be fair, considering the value of his property and the assessment of other like property. Landes Estate Company v. Clallam County, 19 Wash. 569, 53 P. 670. See, also, Miller v. Pierce County, 28 Wash. 110, 68 P. 358.

By resorting to the record in the main case, we find that relator made a tender, based upon a valuation which it is alleged is consistent with the valuation put upon other like property, which was refused, and which was made good by a tender in court. This, under any theory, ought to satisfy the law, for, if it be the duty of a taxpayer to make tender at all where a tax is alleged to be fraudulently excessive, a show of willingness, accompanied by tender, is all that can be required, for the actual amount due, being a subject of judicial inquiry, cannot be determined by the taxpayer. It may be greater or less.

There is another rule that is pertinent, that is, if a penalty is 'illegal in part it is wholly void.' Cooley on Taxation (3d Ed.) vol. 2, p. 902; Michigan Central R. Co. v. Slack, Holmes' U.S.C. C. 231, F. Cas. No. 9527. This is evidence, for the penalty is a a thing which is essentially entire, and therefore indivisible, and attaches only when the obligation is certain or can be made certain by proper calculation.

Respondent relies primarily upon the case of Western Union Telegraph Co. v. State, 64 N.H. 265, 9 A. 547. It was there held that, although an assessment was excessive to the extent that it was reduced after judicial inquiry to the extent of two-fifths, the taxpayer was nevertheless chargeable with interest on that it was finally held he should pay. The court said:

'All other taxpayers either paid their taxes on or before the 1st of December of these years, or became liable to pay interest thereafter till they did pay them, and justice requires that the plaintiffs should pay interest on their just and equal portion of the public burden due the state on or before the 1st of December in each of these years. Had the plaintiffs tendered or offered to pay, when due, the sum afterwards found to be their

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