Laws of 1931, chapter 62, p. 201 (Rem. Rev. Stat., §§ 11315-1 to 11315-8 [P.C. §§ 6882-189 to 6882-196]), entitled, "Actions to Recover Illegal Taxes," was considered by this court in the case of Casco Co. v. Thurston County, 163 Wash. 666, 2 P.2d 677, 77 A.L.R. 622, and was by the court, sitting En Banc, held valid, as within the constitutional power of the legislature. In the recent case of Western Machinery Exchange v. Grays HarborCounty, 190 Wash. 447, 68 P.2d 613, this court, sitting EnBanc, seven judges concurring and two dissenting, held that the proviso contained in § 7 of the act of 1931, p. 204 (Rem. Rev. Stat., § 11315-7 [P.C. § 6882-195]), should not be construed as allowing an owner of personal property to maintain an action in equity, based upon an alleged excessive valuation, in which it was sought to enjoin a county treasurer from proceeding to sell certain property, pending the entry of final decree, the *Page 273 main purpose of the action being to procure a decree requiring the county treasurer to accept a reduced amount in full of unpaid taxes for certain designated years. It was held that, considering the act as a whole, the proviso contained in § 7 referred to defenses other than that the property had been taxed in an excessive amount.
In the case at bar, the majority distinguish the case last cited, upon the ground that, in that case, the taxpayer instituted an independent action, while in the case at bar it is sought to interpose the defense of excessive valuation in the tax foreclosure proceeding itself. In my opinion, the two cases are identical. In seeking to enforce the payment of taxes against personal property, the county proceeds by way of distraint, seizing the property and selling it under summary process. Under those circumstances, no opportunity is afforded to interpose any defense, because there is no foreclosure proceeding before the court. In foreclosure of chattel mortgages commenced by notice and sale, this court has held that, when a mortgagor files before the superior court a complaint alleging that foreclosure is sought against his personal property by summary means, and setting forth a defense to the foreclosure, while the mortgagor is nominally the plaintiff in the action instituted before the superior court, he in fact occupies the position of defendant in a chattel mortgage foreclosure. It seems to me that the same is true of such a proceeding as that instituted by the Western Machinery Exchange. The only way that corporation could bring the matter before the court was by instituting such an action as it did commence. Otherwise, its property would have been sold under summary distraint and sale, and it would have been helpless in the matter. Western Machinery Exchange was, in fact, the defendant in a *Page 274 tax foreclosure proceeding. In my opinion, it is impossible to distinguish the case last cited from the case at bar.
The Western Machinery Exchange case was argued to a department of this court, and later heard before the court sitting En Banc. The opinion in the case was filed May 25, 1937, the court having held that the proviso above referred to conferred upon the taxpayer no right to interpose in a tax foreclosure proceeding any defense based upon a claim that the tax was excessive. One of the dissenting judges expressed himself as being of the opinion that in the Western Machinery Exchange case, the taxpayer was in fact the defendant in a tax foreclosure proceeding, but was of the view that under the provisions of § 7, the taxpayer may interpose the defense of excessive valuation.
The statute of 1931 was enacted to expedite the raising of public revenue. Under the construction of the act placed thereon by the majority in the case at bar, the collection of taxes will be greatly delayed, and the enforcement of tax liens made a slow and difficult process. Counties will feel obliged to institute tax foreclosure proceedings at the earliest possible moment, as a delayed foreclosure may be met by a defense of excessive valuation, and the course of foreclosure greatly prolonged. There will be little incentive to pay taxes promptly, and often a chance to gain by delay in payment. The act of 1931, instead of expediting the collection of public revenue, will delay its receipt.
While the opinion might well be entertained that the act of 1931 is the exercise of high and somewhat arbitrary prerogative on the part of the state, such acts have repeatedly been held good, and have undoubtedly resulted in bringing tax money into the public treasury without the delays which frequently took place under prior laws. *Page 275
In my opinion, the case at bar cannot be distinguished from the case of Western Machinery Exchange v. Grays Harbor County,supra, and I am still of the opinion that the latter case was correctly decided and laid down the rule which should govern in the case at bar. The Western Machinery Exchange case should be followed, or expressly overruled.
I accordingly dissent from the conclusion reached by the majority.
MAIN, BLAKE, and SIMPSON, JJ., concur with BEALS, J.