(dissenting):
I dissent.
The main opinion disregards the law as it applies to appeals from and writs of review of decisions of taxing authorities.
Our statute1 provides:
Before making application to the Supreme Court for a writ, the full amount of the taxes, interest and other charges audited and stated in the determination or decision of the tax commission must be deposited with the tax commission and an undertaking filed with the tax commission in such amount and with such surety as the tax commission shall prove [sic] to the effect that if such writ is dismissed or the decision of the tax commission affirmed, the applicant for the writ will pay all costs and charges which may accrue against him in the prosecution of said case; or at the option of the applicant, such undertaking may be in a sum sufficient to cover the taxes, inter*231est and other charges audited and stated in such decision, plus the costs and charges which may accrue against him in the prosecution of such case, in which event, the applicant shall not he required to pay such taxes, interest and other charges as a condition precedent to his application for the writ.
The plaintiff did not comply with this statute but brought this writ of review without either depositing with the defendant the amount of taxes assessed or furnishing an undertaking large enough to cover the taxes, interest, and other charges which might lawfully be assessed against it.
This court has had a similar matter before it in two other cases. In Pacific Intermountain Express Company v. State Tax Commission, 7 Utah 2d 15, 316 P.2d 549 (1957), the taxpayer had paid a tax under protest and then sued in the district court to recover the amount paid. The lower court dismissed the complaint for failure to state a claim. This court on appeal affirmed on the ground that the Supreme Court has exclusive jurisdiction to review, reverse, or annul a decision of the Tax Commission.2 The Supreme Court at page 20 of the Utah Reports said, 316 P.2d 552:
It is our conclusion that the trial court correctly dismissed the action for the reason that the procedure set 'forth in the Sales Tax Act itself is the exclusive method of seeking redress from a sales tax assessment. This obviates our consideration of the validity of the tax. No costs are awarded.
In Lambert v. State Tax Commission, 16 Utah 2d 159, 397 P.2d 294 (1964), the trial court ordered the defendant to issue license plates and registration to plaintiff’s ve-hides, and the State Tax Commission appealed. The case involved the Use Tax Act, which covers property brought into the state for use herein, said act being complementary to the Sales Tax Act. Section 59-16-23, U.C.A.1953, provides in substance that no writ shall issue against the state or any officer thereof to prevent the collection of a tax required to be paid until after the tax is paid under protest In reversing the trial court, this court held at pages 160 and 161 of the Utah Reports, 397 P.2d 295:
* * * Under all the provisions of the Use Tax Act before recourse can be had to either this court or the district court for relief from a use tax assessment there must either be deposited with the Commission the amount assessed or payment made under protest. Here it is clear this action was brought to avoid these conditions precedent to recourse to the courts. * * *
*232'Taxation is an arbitrary matter. It is ■governed by statute, and the right of review in the" courts is limited by the provisions of the statute.3 The law is stated in .84 C.J.S.1 Taxation § 569, page 1129, as follows :
Where the statute requires the amount of the tax to be deposited as a condition precedent to the writ [certiorari], such deposit must be made.
If every litigiously inclined taxpayer could delay paying his taxes until the overworked courts could process his case, the operation of the government might be severely handicapped. The legislature in its wisdom provided that either the tax be paid or a bond filed before the courts are available to the defaulting taxpayer. In this case the plaintiff does not have any right to come into court until it complies with the statute: either pay under protest or file the bond. It has done neither.
In disregarding the law as set forth above, the prevailing opinion simply says the issue has already been disposed of. The facts are these: Shortly after the writ from this court was issued, the defendant moved to dismiss it. The plaintiff filed an affidavit in- which it claimed that the statute was unconstitutional and that the defendant was guilty of discrimination against the plaintiff in not entering into waivers, etc. ’ At that time no briefs had been-'filed by either party; and in order to 'assure plaintiff a full and fair opportunity to be heard, this court denied the motion to dismiss.
If by denying the motion at that time we committed error, we should now- acknowledge it and correct it. This court wrote no opinion as to why the motion was denied, and we should not by means of a simple minute entry overrule the statutes of this state and the prior decisions of this court.
If by that ruling we have bound ourselves, then we should reconsider our ruling. We ought not say that we are powerless to rulé correctly simply because we erred when we shot from the hip.
The defendant briefed the question of the standing of plaintiff before this court. However, the plaintiff simply ignored the matter just as the prevailing opinion now attempts to do.
I would dismiss the writ as having been improvidently granted.
. Sec. 59-15-16, U.C.A.1953.
. Sec. 59-15-15, U.C.A.1953.
. Lehigh Valley R. Co. v. Sohmer, 174 App.Div. 732, 161 N.Y.S. 557, affd. 220 N.Y. 689, 116 N.E. 1057. See West Digest, Taxation, @=493 (1).