(concurring separately) — I write separately to submit a distinct interpretation of the protest statute. I also acknowledge that a rather aged, but by no means obsolete, opinion of the State Attorney General supports the majority's conclusion. Though the result we reach is consistent with that in National Bank of Detroit v. Detroit, *313272 Mich. 610, 262 N.W. 422 (1935), that opinion is devoid of any analysis on which we can rely. And while Morf v. Johnston, 173 Wash. 215, 22 P.2d 663 (1933) might indirectly support the dissent's position, under my proposed reading of the protest statute, the "or any part thereof deemed unlawful" language, on which the dissent relies, would not apply to Fibre's situation.
The language of the protest statute, quoted in footnote 2, is intended to describe two different types of taxes. First, taxes may be invalid or "unlawful", e.g., beyond the authority of the taxing district, or assessed against exempt property or an exempt taxpayer. Second, taxes may be "excessive”, i.e., based upon an overvaluation, as in the present case. The phrase "or any part thereof deemed unlawful" refers to the former category. The language was not intended to create divisible payments or portions of allegedly excessive assessments and therefore provides no solution to the issue posed. Indeed, in most cases of a valuation dispute, as was the case here, the extent to which the tax is excessive cannot be determined until the dispute finally is resolved. We are left, therefore, with the condition that all installments of taxes claimed to be excessive must be paid under protest before refunds will be authorized.
Further, the Attorney General Opinion quoted below directly tackles the issue presented in this case. AGO 234 (1956), responding to a request from the King County Prosecuting Attorney, provides as follows:
TAXES, TAX REFUNDS, PROTEST.
First-half payment of taxes must be made under protest if the taxpayer is to preserve his right to possible refund of such taxes, and an unlawful portion of taxes cannot be deducted from the total amount due the county treasurer, but the entire amount shown must be paid with no deduction or set off of illegal tax still due or already paid.
A short form of protest, referring to and incorporating by reference a comprehensive form already on file with the county treasurer, is valid.
*314You have requested our opinion in answer to the following questions which have arisen because of current litigation questioning the constitutionality of chapter 253, Laws of 1955:
1. If the first half of the [year's] taxes are paid without protest, and thereafter a portion of [the year's] taxes are determined to be invalid, can a taxpayer:
a. who has paid the first half of his taxes without protest, pay the second half of taxes under proper protest of the total invalid amount of both payments and thereby preserve his right to recover the amount protested . . .
Analysis
1. Your first question must be answered in the negative. There is no specific statutory provision pertaining to the factual situation posed by your question nor have we found any applicable court decision. However, general principles controlling tax protests and actions for refund of tax coupled with the provisions of RCW 84.68.020 indicate that if one is fully to preserve his right to refund of a void portion of tax, where he pays in two installments pursuant to RCW 84.56.020, he must make proper protest with each installment.
As stated in 84 C.J.S. 1290
"* * * the statutory requirement is intended not only [to] furnish proof that the payment was involuntarily made, but also to warn the tax collector that the tax is claimed to be illegal; and the filing of a protest has two purposes, to serve notice on the government of the dissatisfaction of the taxpayer, and to define the grounds on which the taxpayer stands."
RCW 84.68.020 provides in part:
"In all cases of the levy of taxes for public revenue which are deemed unlawful or excessive by the person whose property is taxed, or from whom the tax is demanded or enforced, such person may pay the tax or any part thereof deemed unlawful, under written protest setting forth all of the grounds upon which such tax is claimed to be unlawful or excessive; and thereupon the person so paying, * * * may bring an action in the superior court * * * against the state, county, or municipality by whose officers the tax was collected, to recover it or any portion thereof, so paid under protest. * * *" (Emphasis added)
RCW 84.68.070 makes this the exclusive method to contest the validity of the payment of any tax except with respect to cases *315covered by RCW 84.68.010. This section requires that if an action for refund of tax or portion thereof is to be maintained it must be paid under written protest and only if "so paid" may such action be maintained.
Whatever may have been the reason for legislative requirement of protest as a condition to the right to sue for refund of tax, it is apparent that permitting the first half of payment without protest would frustrate the legislative purpose. It is to be noted that this section was enacted by the 1931 legislature at a time when the legislature had already authorized by § 83, chapter 130, Laws of 1925, payment of taxes in two installments. Permitting recovery of taxes paid upon the first installment without protest would clearly defeat one of the purposes for the enactment of the statute as stated in the quotation from C.J.S., since it would then be possible for a taxpayer to not advise the county he was paying under protest until after the levies had been made. Cf. RCW 84.56.020 and RCW 84.52.030. The officials responsible for imposing a levy for the tax refund fund, RCW 84.68.040, would thus have no knowledge of the amount of potential refunds facing the district.
Thus, the purpose for requiring a protest as a condition to receiving a refund is to give officials responsible for imposing a levy for the tax refund fund knowledge of the amount of potential refunds facing the local agency. Allowing Fibre to recover taxes paid in the first installment without protest would, therefore, defeat that purpose of the protest statute because the Cowlitz County officials did not have notice of Fibre's dissatisfaction with the tax until payment of the second installment.
Attorney General Opinions, while not controlling, are entitled to considerable weight. Elovich v. Nationwide Ins. Co., 104 Wn.2d 543, 550, 707 P.2d 1319 (1985); Washington Educ. Ass'n v. Smith, 96 Wn.2d 601, 606, 638 P.2d 77 (1981). As the quoted AGO seems to answer directly the issue at hand, I find it to be dispositive. Strictly read, the AGO would suggest an all-or-nothing result; that is, given the purpose for requiring a taxpayer to protest each installment as expressed in the opinion, one who fails to protest the April installment would not be entitled to a refund of any invalid or excessive amount, even though the October installment is paid under protest.
*316Finally, I submit that RCW 84.68.020 is not a "taxing statute," as that term is used in the reported decisions. Accordingly, the dissent's reliance on the proposition that ambiguous "taxing statutes” are construed in favor of the taxpayer is not well placed.
Although the result here is less than equitable, the matter should be addressed to the Legislature. On the other hand, the County in this case has conceded that Fibre is entitled to one-half of the excessive tax. Thus, the judgment should be reversed, but only to the extent requested by the appellant.