(dissenting).
I am of the opinion that both the trial court and this court had jurisdiction herein, hence as I view it the appeal as to Count No. I should be determined on its merits and not dismissed for lack of jurisdiction.
In the first place I do not agree that the ■newly-enacted Arizona Insurance Code, Laws 1954, Ch. 64, Art. 2, Sec. 20, now Section 20-161, A.R.S.1956, requires a formal hearing under the peculiar facts of the instant case, as no “report, rule, regulation or order of the director” is involved. As- ’ suming, arguendo, that I am in error on this ‘premise and that under the law an administrative hearing would ordinarily be necessary as a preliminary prerequisite to testing the matter in court, still there are certain well-recognized exceptions to the rule relative to “exhausting the administrative remedy”, two of which apply in the instant case, viz.:
(1) “* * * where the question in dispute is purely a legal one, and nothing of an administrative nature is to be or can be done; * * 73 C.J.S., Public Administrative Bodies and Procedure, § 41, Exceptions to Rule, p. 354; and see, § 173 of the same volume.
(2) “ * * * where it plainly appears that the administrative remedy would be of no value and fruitless, the party seeking judicial, relief does not have to complete administrative procedure before resorting to the courts, * * *.” 42 Am.Jur., Public Administrative Law, section 200, “Limitations on Doctrine”.
Stripped to its bare bones this record indubitably shows that the only question presented is which tax law applies, the old or the new. This question demands no exercise of administrative discretion requiring special knowledge or experience in the field of insurance. The director had consulted the attorney general on the matter and defense counsel were informally advised that he was going to be governed by the latter’s opinion. It should be noted that there is not the slightest dispute as to the amount *305of the total direct premium income collected. It was just a question of what tax rate applied. Only one rate could be legally applicable; ergo, a levy under another rate would be void as a matter of law. Under these circumstances I cannot conceive of a more futile thing than to* have asked for a formal hearing before the director to settle the legal question presented. It is obvious the director did not deem a hearing necessary or he would have, on his own motion, directed a hearing to be held, as he is empowered to do under section 20-161, supra.
As to Count I when the majority determined that plaintiffs’ failure to comply with the administrative procedure divested both the superior court and this court of jurisdiction to hear and determine the issues herein involved that settled this part of the appeal; hence the pronouncement as to the nonapplicability of section 73-841, supra (now Sec. 42-204, A.R.S.1956) is wholly dictum. If the matter were being determined on its merits, personally I would experience no difficulty in finding a legal basis either under the common law or under the last-mentioned statute for the recovery of taxes paid, as here, under protest, if such were illegally exacted.
As to Count No. II the majority finds no jurisdictional defect in the fact that no administrative remedy was followed, though in truth illegality of the tax levy was the basic issue of both counts. I agree with this result. However, I am of the view that on the record before us this court should not reverse with directions to enter judgment for the plaintiff. This by reason of a procedural difficulty. In the lower court plaintiff moved for a summary judgment and defendant moved to dismiss The court denied the motion for summary judgment and granted the motion to dismiss. A formal written judgment incorporating these rulings was then entered and the plaintiff appealed therefrom. It would seem therefore that if the trial court erred in dismissing Count No. II of the complaint, the proper order to be entered by this court would be to reverse that portion of the judgment with directions to reinstate the complaint and for further proceedings not inconsistent with the majority decision, rather than to direct the entry of judgment forthwith for plaintiff. Were it not for this procedural hiatus I would concur with the end result of permitting Sun Life Insurance Company to recover the taxes illegally exacted of them.
It is for these reasons I register this dissent.