Weber v. School Dist. No. 7 of Yakima County, 25989.

• Decision Date: 15 April 1936
• Docket Number: 25989.
• Citation: 185 Wash. 697,56 P.2d 707
• Parties: WEBER et al. v. SCHOOL DIST. NO. 7 OF YAKIMA COUNTY et al.
• Court: Washington Supreme Court

56 P.2d 707

185 Wash. 697

WEBER et al. v. SCHOOL DIST. NO. 7 OF YAKIMA COUNTY et al.

No. 25989.

Supreme Court of Washington, En Banc.

April 15, 1936

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

Action by J. H. Weber and others, trustees of the Yakima Athletic Association, against School District No. 7 of Yakima County and H. H. Henneford and others, members of the State Tax Commission. From the judgment, defendants H. H. Henneford and others, members of the State Tax Commission, appeal, and defendant School District cross-appeals.

Reversed and remanded for dismissal.

G. W Hamilton and R. G. Sharpe, both of Olympia for appellants.

Cheney & Hutcheson and Rigg, Brown & Halverson, all of Yakima, for respondents.

MILLARD Chief Justice.

This action was instituted by the plaintiffs as trustees of a voluntary althletic association. Summarized, the allegations of the complaint are as follows:

The plaintiffs are not engaged in any activity for the object of gain, benefit, or advantage to themselves or to any other person or class, directly or indirectly. The defendant school district is a duly organized and existing municipal corporation. The defendants Henneford, Hedges, and Jenner are members of the state tax commission. For the purpose of providing recreation and amusement for the people of Yakima and vicinity, and for the purpose of providing revenue for the defendant school district from the use of an athletic field owned by defendant school district in the city of Yakima, the plaintiffs, during the months of April to August 1935, conducted a series of baseball games in the city of Yakima. The defendant tax commissioners, without warrant of law, claim that the plaintiffs are liable for a tax on admissions to the baseball games and a business tax on their activities under the provisions of chapter 180, Laws 1935 (page 706). In order to protect themselves, the plaintiffs have retained the amount of the tax from the proceeds of the games and tender the same into court. If by its terms chapter 180, Laws 1935, applies to the conduct of the baseball games the law is unconstitutional as a tax on the property of a school district, a municipal corporation. Plaintiffs pray that the court adjudge them not to be liable for the tax, and that the amount tendered into court be decreed to be the property of the defendant school district. The plaintiffs further pray that the defendant tax commissioners be enjoined from harassing plaintiffs or interfering with them in the conduct of baseball games.

The defendant school district answered, admitting all the allegations of the complaint and affirmatively alleging that the athletic park referred to in the complaint was owned by the school district and operated by it as a part of its activity; and that, in order to provide for the improvement and maintenance of the property, the school district arranged with the plaintiffs to conduct baseball games thereon and to pay all proceeds therefrom in excess of the actual expenses of the games to the school district.

The defendant school district further alleged that all moneys derived from the games should go into the general fund of the school district, and that the attempt of the tax commission to levy and collect taxes on admission fees was a direct taxation upon the property of the school district.

Defendant tax commissioners appeared specially and separately moved for an order quashing the summons upon the grounds: (1) That the court has no jurisdiction of the subject-matter; (2) that the action was in truth and in fact an action against the state, of which defendant tax commissioners were merely agents for the collection of state revenues, and that the action could therefore be maintained, if at all, only in the superior court for Thurston county; and (3) that under sections 198 and 199, chapter 180, Laws 1935 (page 837), the action was maintainable, if at all, only in the superior court for Thurston county. The motion was overruled. Still reserving their special appearance, defendant tax commissioners demurred to the complaint. The demurrer was likewise overruled. Still reserving their special appearance, defendant tax commissioners answered, claiming that plaintiffs were liable for an admission tax and a business tax under the provisions of chapter 180, Laws 1935. Thereafter plaintiffs filed a supplemental complaint, alleging that they were then depositing in court the additional sum of $430.28, retained from the proceeds of said games, which sum equaled the amount of the tax if plaintiffs or any other persons were liable therefor, from the date of the complaint until the end of the season, September 15, 1935.

The cause was tried to the court, which entered its judgment decreeing that the moneys paid into court by plaintiffs belonged to the defendant tax commissioners as admission taxes, but that plaintiffs were not liable for the occupational tax, and restraining the defendant tax commissioners from attempting to collect same from plaintiffs or any of them. Defendant tax commissioners have appealed. Defendant school district has cross-appealed from that portion of the judgment requiring payment of the admissions tax.

Clearly the superior court for Yakima county was without jurisdiction to proceed in the cause. The sole purpose of this action was to determine the title to the amount of money deposited by the respondents in the superior court for Yakima county. It was not alleged or contended in the trial court, nor was it argued on appeal, that the appellant tax commissioners claimed this money as individuals. They claimed it only as agents of the state. It follows that the action was in fact an action against the state; hence could only be maintained in the superior court for Thurston county.

The case at bar is not distinguishable in principle from State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d 693. In the cited case we held that an action against the regents of the State University to enjoin them from collecting a $50 tuition fee from a student domiciled in this state, contrary to the provisions of Laws 1931, p. 162, § 1, was in effect an action against the state which must be brought in Thurston county, since the relief sought affects the right of the state to collect revenue paid into the state treasury.

State ex rel. Robinson v. Superior Court for Spokane, 181 Wash. 541, 43 P.2d 993; and State ex rel. Robinson v. Superior Court for King County, 182 Wash. 277, 46 P.2d 1046, upon which respondents and cross-appellants rely, are not in point. Those two cases did not involve the general revenues of the state.

We held in State ex rel. Slade v. Jones, Judge of Superior Court for King County, 182 Wash. 94, 45 P.2d 30, 31, that one bringing an action against the state for damages for taking real estate in its sovereign capacity can maintain his action only in Thurston county, in view of Rem.Rev.Stat. § 886, which provides that persons having claims against the state shall have a right of action against the state in the superior court for Thurston county. That statute was enacted pursuant to the permission, without which no suit may be maintained, granted by our State Constitution.

The pertinent constitutional provision is to the effect that the Legislature shall direct by law in what manner and in what courts suits may be brought against the state. Article 2, § 26, Washington Constitution.

In the case just above cited we said:

' In State ex rel. Robinson v. Superior Court 43 P.2d 993, we held that an action against a state officer, acting without the scope of his lawful authority, was not one against the state and was properly maintainable in the county where the unlawful acts were being committed, citing as one of the authorities therefor the Walla Walla Case, supra [167 Wash. 334, 9 P.2d 70].

'This is not such a case, but is an action against the state purely upon money claims. In such cases the state has an undoubted right to determine the forum in which it will be sued. It has declared that the superior court for Thurston county is the forum in which it consents to be sued upon such money demands as are involved herein.'

In State ex rel. Robinson v. Superior Court for King County, 182 Wash. 277, 46 P.2d 1046, 1049, we distinguishe...