While I concur on the grounds last stated in the majority opinion, I am greatly perturbed by the results achieved, and it seems to me that we do less than our duty if we do not make clear what those results are.
On grounds of high public policy, we hold that approximately three mills of the 4.25 mills levied for the port of Tacoma for the year was illegally excessive, and that, in consequence thereof, there was collected from the taxpayers of Pierce county approximately two hundred fifty thousand dollars which should have remained in their pockets.
By this decision, some fifty-nine perspicacious and alert taxpayers will secure refunds of $29,227.56, because they discovered this illegally excessive tax and paid under protest the portion which was illegally levied. With this result I have no quarrel.
But the port of Tacoma will have the benefit of approximately two hundred twenty thousand dollars which we *Page 357 hold they had no right to collect, and all the other taxpayers of Pierce county are out of pocket the same amount. With this result I am greatly concerned. It puts a premium on knowingly making excessive levies, with the expectation that, at most, not more than ten or fifteen per cent of the amount illegally levied and collected will have to be returned. This presents a problem for the legislature.
A partial remedy may be available to the taxpayers of Pierce county by virtue of Rem. Rev. Stat. (Sup.), §§ 11241-1 to and including 11241-4 (Laws of 1939, chapter 16, p. 42, §§ 1, 2, 3, and 4), and Rem. Supp. 1941, § 11241-5 (Laws of 1941, chapter 154, p. 430, § 1), which set forth the procedure whereby a taxpayer may recover taxes up to two hundred dollars which have been "incorrectly extended against him on the tax-rolls." However, the amount involved in most cases is so small (although the aggregate is large) that the individual taxpayer, if he should discover the fact that there was an excessive levy, will not trouble to avail himself of the remedy. Taxing bodies should not be allowed to benefit by their own bad faith.
Respondent in this case relied on Weyerhaeuser Timber Co. v.Roessler, 2 Wn.2d 304, 97 P.2d 1070. With that case I am in entire accord. The plaintiff there sought to restrict the levy of the illegally excessive tax. Had that procedure been followed here, the port commission levy would have been reduced by approximately three mills, all taxpayers would have been protected, and the port would not have been permitted to profit by its illegal levy. This, it seems, is the procedure that should be commended to those tax-watching agencies which are on the alert to detect illegal levies.
I am not convinced that the budgeting procedure provided for first-class school districts was intended to be applicable to or is appropriate for port districts. I have based my concurrence solely on the ground, as stated in the Weyerhaeuser Timber Co. case, supra, that:
"While the power to levy taxes is an inherent attribute of sovereignty, there is implicit in the constitutions of all free governments the limitation that the property of the *Page 358 citizen may be taken from him under the guise of taxation only to meet definite public needs."
and, as stated in the majority opinion,
". . . that it is contrary to public policy, and unlawful, for municipalities to accumulate large surpluses unless they have legislative sanction so to do."