State v. Wiley , 176 Wash. 641 ( 1934 )

To begin with, I do not accept the statement of the majority that the basic facts in this case are identical with the facts in the case of State ex rel. Showalter v. Cook, 175 Wash. 364,27 P.2d 1075.

It is clear that the state tax commission, as the state board of equalization, conceived from the decision in the Showalter case that it had carte blanche authority to raise the assessed valuations in all the counties in the state without inspection, information or knowledge, but simply from choice or supposed necessity as arbitrarily determined by it.

The decision by the majority, by its mere fiat, makes the county assessors mere figureheads in the assessment of property for taxation purposes. They are much more than ministerial officers under our statutes. Under Rem. Rev. Stat., § 11140, it is their sworn duty to list and assess all property in their counties, requiring each person whose property is listed to make oath to the correctness of the list and the valuations therein, upon which the assessors determine the value of the property and enter fifty per cent of the same in the assessment books opposite the name of the party assessed as the taxable value. Great latitude has always been granted by the courts in the assessment of property by the county assessors, as presumptively honest and correct.

The answering affidavits of the assessor and the affidavit of the intervener, having been demurred to by appellant, must be considered as true. The state board, having had no evidence nor knowledge of the subject matter, manifestly acted arbitrarily and capriciously. DotyLumber Shingle Co. v. Lewis County, 60 Wash. 428,111 P. 562, Ann. Cas. 1912B, 870.

The cases cited from outside jurisdictions announce a rule which is contrary to the practice and procedure which has been consistently followed in this state until now. This is a question of procedure rather than of substantive law.

In MacLaren v. Ferry County, 135 Wash. 517, 238 P. 579, we upheld the county assessor in disregarding and refusing to follow an act of the legislature which commanded him to do that which was forbidden by the constitution. In State ex rel. State TaxCommission v. Redd, 166 Wash. 132, 6 P.2d 619, we upheld the county treasurer-assessor in his refusal to enter upon the assessment roll a valuation certified to him by the state tax commission because that body had no power or right to fix such a valuation. The same is true of the Showalter case, supra, so much relied upon. We there recognized the right of the county assessor to challenge the action of the state board of equalization and contest the suit brought to enforce the order of the state board. In Denny v. Wooster, 175 Wash. 272,27 P.2d 328, we recognized the right of a taxpayer to bring and maintain such an action. In the case at bar, we have an intervening taxpayer challenging the action of the board.

In the Showalter case, supra, the undervaluation having been strangely admitted by the assessor, or some one on his behalf, there was nothing but a question of law to decide. In the case before us, there is an issue of fact.

The case of People ex rel. v. Pitcher, 61 Colo. 149, 156 P. 812, Ann. Cas. 1918D, 1185, shows in its first head-note that:

"While a valuation of property for purposes of taxation in a capricious or arbitrary way, through chance and guess, and without exercising any judgment, may and should, in the absence of waiver of such irregularities, be set aside, it can be done only in an appropriate proceeding, and not collaterally in mandamus to enforce the order of such taxing officials." [Syllabus, 156 P. 812.]

So that it clearly appears in that case that the court recognized that such arbitrary and capricious action on the part of the taxing authority should be set aside in an appropriate proceeding, but that the court differed from our long established rule.

The lengthy quotation of language by the supreme court of Illinois in People ex rel. Attorney General v. Salomon, 54 Ill. 39, is nothing but the ipse dixit of the author of that opinion, which was addressed from the bench to the defendant, there present to receive judgment. It was evidently intended to awe the local officer. An examination of the case, however, discloses that the judgment was pronounced in January, 1870, by that court and was based upon a previous judgment in January, 1868, by the same court, adjudging Salomon, who was county clerk and ex officio clerk of the board of supervisors of Cook county in that state, guilty of contempt of that court, for disobedience of its mandate. That decision was reported in (People ex rel.Miner v. Salomon) 46 Ill. 333.

It appears from that decision that the local officer, who was manifestly purely a ministerial officer, whose duty it was to extend the tax-rolls as equalized by the county and state boards of equalization under a law which had been enacted by the legislature in 1867, refused to do so. Salomon contended that the law was unconstitutional, and that he was justified in disregarding it. That question was presented to the supreme court, which assumed jurisdiction upon his challenge, and determined it adversely to Salomon, just as was done in the Ferry County case, supra, except that, in that case, the law was held unconstitutional. Hence, the law of 1867 having been determined to be valid, a peremptory mandamus was directed by the court in the first case, which Salomon disobeyed. The result reached in the second case by that court was a correct result under the former decision, because of the local officer's manifest disobedience to the peremptory writ. Under the same circumstances, this court would, justly, do the same thing.

The other cases from Mississippi, Maine, New York and Oklahoma, are no more in point under their varying statutes and different modes of procedure from those obtaining here.

To compel the assessor to extend the rolls upon the basis of the state board's arbitrary finding, would be to compel him to admit that he had acted illegally and wrongfully and in plain violation of the mandatory provisions of the law governing such assessments. Where the facts upon which the application for mandamus rests are in dispute, the writ does not lie, but only in the case where the facts are conceded and merely a question of law is involved. Bardsley v. Sternberg, 17 Wash. 243, 245,49 P. 499.

Another deplorable result of this decision will be that only in sporadic instances where certain taxpayers are watchful enough and financially able to initiate litigation will relief ever be obtained from such arbitrary action by the state boards, and all other ordinary taxpayers will be practically remediless.

For these reasons, I dissent.