I concur but I place my concurrence in the order recalling the alternative writ on the ground that it was improvidently issued. Ordinarily, I would express concurrence or dissent on the substantive question since it must sometime be finally resolved, but we have lately indulged in the practice of issuing writs of prohibition on ex parte applications against the Tax Commission and other agencies of government when adequate remedies at law exist for redress of injury due to unwarranted agency action. I think a halt is in order.
The Tax Commission and other governmental agencies are charged with a duty to carry out the functions which the law imposes upon them. Incidental to that duty is the duty preliminarily to interpret the law in order to determine what duties and functions are imposed upon or vested in them. They must pass on the question of their jurisdiction and delineate as best they may in ambiguous cases the scope and extent of their powers. We have our sphere of *Page 348 action as has the legislature, the other courts, the juries, and administrative agencies. It is, of course, one of our duties to ascertain when any of these agencies steps "out of bounds" but it is neither our province to function for them in their various fields nor interfere with their normal processes even in cases of doubt by a writ which will entirely stop any future action, unless it is clear that such action is unauthorized, and unless there is no adequate redress by the ordinary course of law or no adequate method of trying out the question upon which it is claimed the power or lack of it depends. Mercur Gold Mining Milling Co. v. Spry, 16 Utah 222, 52 P. 382. When we do otherwise we may prevent for a time the functioning of an agency in matters which we may later determine it was permitted to do and which the law enjoined upon it. In that way we become an instrumentality of obstruction in the processes of government and democracy, rather than an agent for interpretation which is our most important field of action. I could find few better examples to illustrate my point than the instant case. Here the petitioner would not have suffered even if the position it took were all the while correct. It could have paid the tax under protest and tried out the point and obtained the return of its payment and the Tax Commission would not have been delayed in its processes. Taxation proceedings are on a time table. When an agency charged with a series of duties in relation to a taxation plan or program is stopped at the beginning or before the final step in the process of the execution with which it is charged, much public harm may result. But ordinarily little public harm will result if such agency is permitted to proceed and the taxpayer required to pay under protest and then bring an action for the return of his money. Certiorari may not stop these processes if no injunction attends it. The record may be certified up and the agency permitted to proceed the while.
Certainly Sec. 80-11-10, R.S.U. 1933, is expressive of public policy in relation to the restraining of a taxing *Page 349 agency. It will be noted that the courts are admonished not to restrain
"the collection of any tax * * * nor * * * the sale of any property for the nonpayment of the tax, except where the tax, or some part thereof sought to be enjoined, is illegal, or is not authorized by law, or the property is exempt from taxation." (Italics added.)
This section by implication would certainly prevent judicial restraint of steps leading up to collection and sale. What would happen to the whole of our taxing machinery if at any stage of its functioning a taxpayer could by injunction or writ of prohibition, hold up all succeeding steps until the court got around to determining whether the step was legal? Payment under protest is an adequate and speedy remedy. See Bancroft's Code Pleading, Practice and Remedies, Ten Year Supplement, Vol. 5, page 3810, § 5620. Certainly the taxpayer can wait the fulfillment of the process, then pay under protest and use his litigious energies in bringing a suit for recovery, better than the public be delayed in its taxing program, only in many cases to find that in the end the delay was unjustified and perhaps irretrievable. I do not mean to say that there may not be rare cases when the act or step threatened by a taxing agency is so palpably unauthorized as to warrant injunction by writ of injunction in equity, but if there is the least doubt it were better to send the petitioner to his ordinary legal remedies. Also, I do not mean to say that there are not rare cases where the taxing agency while proceeding jurisdictionally may not be delayed while the question of the correstness of its procedure is tested if the situation is such that if permitted it will involve the taxpayer in a position from which he cannot be extricated.Atwood v. Cox, 88 Utah 437, 55 P.2d 377; Mayers v.Bronson, 100 Utah 279, 114 P.2d 213, 136 A.L.R. 698. But such cases are rare indeed. Ordinarily some method may be found which will not hinder the taxing agency in the course it sincerely believes to be its duty to follow, and will at the *Page 350 same time preserve to the taxpayer an adequate remedy. Payment under protest was devised in part for this very purpose.
Coming to the conclusion I do, I need say nothing concerning the substantive question. I would not want what I have said above to be interpreted as disagreeing with the conclusion of the main opinion on the substantive question. While the definition of "car company" is left more to the ingenuity of the courts than to legislative exactitude, I can see great practical merit in the Tax Commission assessing moving railroad cars. It would seem as if the legislature should have intended that. The practicality of local county assessors each assessing these cars which really have no county taxation situs is not appealing. The strongest argument which the petitioner advances outside of legislative paucity of definition of "car companies" is that if the definition does not revolve about a public service ingredient, any vehicle of any company used inter-county could equally as well be made taxable by the Tax Commission. The answer is that the law did not do so. Also, I seem to discern some distinction on the one hand between vehicles owned by a company and used solely for the distribution of its own products, but controlled, directed, and operated by the company in the very function of distribution, and on the other hand railroad cars which, though owned by such company, are transported under the direction and supervision of railroad companies and become for such purposes as if part of its own rolling stock. Sec. 80-5-3, R.S.U. 1933, may have intended to put such cars in exactly the same situation as the rolling stock of the railroads as far as method of assessment, and I see good reasons for doing so. To have a local assessor valuing roving tank cars of the Sinclair Refining Company whilst the Tax Commission assessed the same type of car belonging to a railroad company which was little if any more transient, would seem to involve inequality.
I must confess that I cannot get any meaning out of the phrase in Sec. 80-5-3 which reads "when they are operated *Page 351 as a unit." I think it must be ignored. Nor can I derive more meaning out of the phrase used in the main opinion reading "which by its situs or nature is operated as a unit." The number of cars of the Sinclair Refining Company and companies similarly situated, operating in the State of Utah inter county at different times varies greatly and may seldom consist of the same specific cars. How any changing group of cars with a varying constituency, separately bound for many different and changing destinations can be said to "operate as a unit", I am at loss to understand. If the phrase means that they all operate for the same company in the unitary business of distribution of its own products, it lends even more support to the interpretation of "car company" as embracing that part of the business of a producer which uses its own cars in our state for inter-county distribution of its own products.
PRATT, J., on leave of absence.