Tozer v. Skagit County

• Decision Date: 24 February 1904
• Citation: 34 Wash. 147,75 P. 638
• Parties: TOZER v. SKAGIT COUNTY.
• Court: Washington Supreme Court

75 P. 638

34 Wash. 147

TOZER v. SKAGIT COUNTY.

Supreme Court of Washington

February 24, 1904

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Action by David Tozer against Skagit county. Judgment for defendant and plaintiff appeals. Reversed.

Million & Houser, for appellant.

J. C Waugh, for respondent.

FULLERTON C.J.

In this action the appellant sought to recover from Skagit county the sum of $464.88, paid as taxes on certain lands belonging to him situated in and subject to taxation in that county. The facts shown by the record upon which the appellant bases his right to recover are substantially these In 1900 the lands mentioned were regularly assessed for taxation by the assessor of Skagit county, and their values duly equalized and fixed by the board of equalization for the ensuing biennial period. In 1901 the board conceived that the lands were not assessed at their actual value, and proceeded to and did, without notice to the appellant, raise the value of the lands between 15 and 20 per centum over the valuation fixed in 1900. The auditor carried out the taxes for the year 1901 on the new valuation, increasing the tax on the property over what it would have been had the valuation of 1900 been allowed to remain by the amount above stated. In March, 1902 the appellant tendered to the treasurer a sum of money sufficient to pay the taxes on the land at the valuations of 1900, which sum the treasurer refused to receive, notifying the appellant that he would not accept any sum in payment of such taxes less than the full amount shown by the rolls to be due thereon. The appellant thereupon paid the full amount assessed against the land, notifying the auditor that he paid the difference between the sum actually paid, and the sum he would have been required to pay had the assessment been made on the valuation of 1900, under protest, and that he would forthwith bring an action against the county to recover back the same. Thereafter he presented to the county his claim for the amount overpaid, and on its rejection by the board of county commissioners brought this action. On the trial he was nonsuited, and a judgment of nonsuit entered against him, from which judgment he appeals.

It is not disputed that, in so far as is shown by the record before us, the attempted increase in the valuation of the appellant's property was without authority and therefore void, but it is contended that under the rule heretofore laid down by this court the payment was voluntary and cannot be recovered, even though the assessment be void; and it was on this ground that the trial court granted the nonsuit. The case which was thought to be controlling is Montgomery v. Cowlitz County, 14 Wash. 230, 44 P. 259. In that case we did hold that a payment of taxes to the county treasurer before they became delinquent, and before any proceedings were instituted looking to their enforcement, was a voluntary payment, although nominally paid under protest, and could not be recovered back even if the tax paid was illegal. That case undoubtedly followed the rule as announced in a majority of the states having statutes similar to the one then existing in this state relating to the assessment and collection of taxes, and, if the statute had been suffered to remain as it then was, we would be contented to follow it. But a radical, if not fundamental, change has been made in the statute since the time of that decision. Then all taxes were personal and assessed against the person, and it was necessary to exhaust the personal property of the individual against whom the taxes were assessed before...