Lewis v. Bishop , 19 Wash. 312 ( 1898 )

The opinion of the court was delivered by

Gordon, J.

The appellant instituted this proceeding in the superior court for Jefferson county for the purpose of obtaining a writ of certiorari to review the proceedings of the board of equalization. The lower court, on final hearing, gave judgment against the plaintiff, and thereupon this appeal was prosecuted. It appears from the record that the plaintiff is a citizen of the state of California, and the owner of 18.37 acres of land known as the “ Port Townsend Sawmill Property,” and that said property was assessed for the year 1897 as follows: Land, $1,600; improvements, $2,000; total, $3,600 — as appears from the return of the assessor for said county filed with the clerk of the hoard of equalization on the 1st day of August, 1897. From the return made to the writ by the respondents it appears that the following orders were made by that board concerning this property:

“ On Wednesday, August 11th, the following change in value was ordered: Myer Lewis, 18 and 37-100 acres, in section 1, township 30, range 1 W., from valuation by assessor of $3,600 to valuation of $9,300.”

“ Clerk of board to notify Myer Lewis that notice sent him August 11th, 1897, in reference to assessment on lands in section 1, township 30, range 1 W., was in error, and that said assessment is reduced from $18,000 to' $17,000. ...”

On Monday, August 16th, the following proceedings were had and done:

“ On motion the board reconsidered its action, taken August 11th, 1897, in the matter of the assessment of Myer Lewis on 18 and 37-100 acres in section 1, township 30, range 1 W., in which it raised the assessment on said land from $3,600 to $9,300; also order made August 12th, 1897, in reference to same matter. ...”

And the following final order was made:

“ Ordered by the board that the assessment of Myer Lewis on 18 and 37-100 acres in section 1, township 30, range 1 W., be raised from $3,600 to $17,000.”

Notice of this order was directed to be given by the clerk of the board by mail to Lewis, addressed to San Francisco, and also Port Townsend, citing him to appear .on or before August 21st, to show cause why his assessment “ should not be so raised.” These notices were placed in the postoffice at Port Townsend, August 17, 1897, at about tbe hour of 6 p. m., and on tbe 21st of August tbe board of equalization adjourned. Tbe lower court found tbat tbe true value of tbe land, according to tbe judgment of tbe assessor, was $16,000; tbat after delivering tbe assessment roll to tbe board of equalization and bis attention bad been called to’ tbe assessment tbe assessor added a cipher to the $1,600, thereby changing it to $16,000, and also changed tbe total from $3,600 to $18,000; and further found tbat be intended to assess it at tbat sum, and bad set down tbe figure $1,600 in lieu thereof through inadvertence and mistake. Tbe court further found

“that said defendants, as such board of equalization, between the 4th and 21st days of August, 1897, made several irregular and inconsistent orders in attempting to equalize tbe assessment, the intent and result of which was to equalize the same by leaving tbe valuation of said land stand at $16,000, and by reducing the valuation placed by the assessor on tbe improvements thereon from $2,000 to $1,000, thereby reducing tbe total assessed valuation of said land and improvements of plaintiff from $18,000 to $17,000; . . . tbat said valuation of $16,000 placed on said land and $1,000 placed on said improvements were fair and reasonable, and not above tbe value placed upon other property in tbe same neighborhood and similarly situated, and tbat plaintiff is in no wise wronged by tbe action of tbe said board.”

Respondents have moved to dismiss this appeal, contending tbat tbe court bad no authority to issue a writ of review in this case. In support of the motion to dismiss, it is urged that the board of equalization provided by § 58, ch. 71, p. 162, Laws 1897 (Bal. Code, § 1714), does not exercise judicial functions, and that § 4, p. 115, Laws 189b (Bal. Code, § 5741), restricts tbe granting of tbe writ to cases where

“ an inferior tribunal, board or officer, exercising judicial functions, bas exceeded tbe jurisdiction of sueb tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, . . . and there is no appeal, nor in tbe judgment of tbe court, any plain, speedy and adequate remedy at law.”

In Olympia Waterworks v. Thurston Co., 14 Wash. 268 (44 Pac. 267), cited by both counsel, it was held that an appeal did not lie from a decision of tbe board of equalization to tbe superior court. In tbe course of tbe opinion it was said:

“. . . . It is claimed by tbe water company that tbe equalization of tbe valuation is in tbe nature of a judicial proceeding, and within tbe proper jurisdiction of tbe courts. There are some cases which so bold, and there are others from courts of equal repute which bold directly to tbe contrary. But, in our opinion, it is not necessary for tbe purposes of this case that we should decide as to the nature of tbe proceeding before tbe board of equalization.”

Tbe disposition of tbe motion in tbe present case involves a determination of tbe character of function exercised by such board, and we have become satisfied that tbe overwhelming weight of authority is that such boards exercise judicial functions. Cooley, Taxation (2d ed.), p. 422; Hagar v. Reclamation District, 111 U. S. 701 (4 Sup. Ct. 663); Stanley v. Supervisors, 121 U. S. 535-550 (7 Sup. Ct. 1234); Stuart v. Palmer, 74 N. Y. 183 (30 Am. Rep. 289); State v. Jersey City, 24 N. J. Law, 662-666; State v. Morristown, 34 N. J. Law, 445; Griffin v. Mixon, 38 Miss. 424. See authorities given in note to Hagar v. Reclamation District, 111 U. S. 710 (4 Sup. Ct. 670).

In further support of tbe motion to dismiss, it is urged that tbe plaintiff has a remedy against tbe treasurer to prevent tbe sale of tbe property, if improperly assessed. We think, however, that the remedy which would he afforded by injunctive relief in such cases is neither speedy nor adequate, and it is doubtful if that remedy could be invoked until some actual interference was threatened. Nor does the fact that the law requires the tax lien to be foreclosed by action in court constitute a sufficient objection to the allowance of the writ. Under the present revenue act, proceedings to foreclose the tax lien cannot be instituted until three years after the 1st day of December next following the date of delinquency. Sess. Laws 1897, p. 182, § 96 (Bal. Code, § 1751). And to require the taxpayer to await the institution of an action to foreclose the tax lien before he can urge the objection to the tax would, in many cases, amount to a denial of justice, and it might often occur that it would be more to the advantage of the property owner to submit to the unjust and illegal tax than to await the institution of the action to foreclose. A tax upon real estate is a first lien upon the property (§ 78, supra, Bal. Code, § 1734) and its existence might interfere materially with the right of the owner of the property to dispose of or incumber it. It follows that the motion to dismiss must be denied.

Passing to the merits, the first question to be considered is the right of the assessor to alter or change the assessment after he has returned it and filed the lists and books with the clerk of the board. Laws 1897, p. 160, § 54 (Bal. Code, § 1710) requires him to file the same on or before the first Monday in August, and to verify it' by his affidavit. We think that when this has been done it is beyond the power of the assessor to make any corrections therein or additions thereto. The statute nowhere authorizes him to interfere with the rolls after the same have been filed, and there are many reasons why he should not be permitted to do so. No notice of his assessment is required to be given to the property owner. The law fixes the time when the assessor shall file in a public office his return of the assessment. That operates as notice, and affords opportunity to the property owner to ascertain what his assessment is. If satisfied therewith, he need give, the matter no further consideration, unless thereafter he receives notice of any proposed increase.

The various orders made by the respondents in this case were inconsistent, but by their final order all former action in reference to plaintiff’s property was rescinded, and as a substitute for former orders, and in lieu thereof, they proceeded to raise the assessment from $3,600 to $17,000. Respondents are not, therefore, in the position to say that the assessment as returned by the assessor was $18,000 or anything excepting what they finally recognized it to be, viz., $3,600.

The remaining question is, in proceeding to raise the assessment did they exceed their jurisdiction? Laws 1897, p. 162, § 58, provides:

“ First. They shall raise the valuation of each tract or lot of real property which in their opinion is returned below its true and fair value to such price or sum as they believe to be the true and fair value thereof, after at least five days’ notice shall have been given in writing to the owner or agent.”

The so-called notice mailed to plaintiff was wholly insufficient under this statute, and amounted to- no notice whatever; in fact, no effort to sustain it has been made in this court. It was not mailed until the 17th, and required the plaintiff to show cause on or before the 21st. Had it been actually served on the 17th, it would still have been insufficient, because the time afforded was but four days, when the statute entitled the plaintiff to five days’ notice. But we think where such notice is given by mail it is governed by § 21, ch. 127, p. 414, Sess. Laws 1893 (Bal. Code, § 4891) wbicb requires:

“ In case of service by mail, tbe papers shall be deposited in tbe postoffice, addressed to the person on whom it is served, at bis place of residence, and tbe postage paid; and in such case tbe time of service shall be double that required in a case of personal service.”

But it is claimed by respondents that tbe proceedings show an honest effort to get tbe proper value and a fair and just assessment, and that substantial justice has been done; that there is no claim that tbe property was assessed at a higher rate than tbe adjoining property; or that tbe value of tbe improvements placed upon tbe land was not fair and reasonable. It is sufficient answer to say that tbe statute, in accord with tbe spirit of tbe constitution, contemplates that tbe property owner shall have a right to be beard before tbe value of bis property as fixed by tbe assessor is raised, and it is no justification of tbe action of tbe respondents proceeding without notice, where notice was required to be given, to say that tbe conclusion reached by them was fair and accords with substantial justice. It will be time enough to determine those questions after tbe opportunity for bearing wbicb tbe law has afforded tbe parties has been given. Tbe granting of tbe writ in tbe present case is simply to place tbe parties in tbe position that they were in before tbe board of equalization took any action in tbe premises, and under such circumstances tbe statute affords ample provision for tbe correction of any mistakes that may have occurred, and makes it possible that plaintiff’s property shall be charged with its just burden of taxation.

Tbe judgment dismissing tbe writ must be reversed, and tbe cause remanded for further proceedings.

Scott, O. J., and Anders, Dunbar and Tea vis, JJ., concur.