Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1893-08-18
MUST BE RECORDED.
THE SUPREME COURT SUSTAINS
JUDGE GORDON:
The Matter of Using Arbitrary
Means for Collecting QuestiOna-
bic Tax Levfes Finally Settled.

The Matter of Using Arbitrary
Means for Collecting QuestiOna-
Bile Tax Levfes Finally settled.
The Supreme Court has sustained
Judge Gordon in his ruling that GER
titicate from the Treasurer that all
taxes have been paid is not essential
before the Auditor is empowered to
receive the same for record. The
matter came before the court on APP
peal OF the County.
The Supreme Court says:
The first point stated will be first
considered. If the act is held invalid
the second question becomes imma-
terial. No provision is made in the
act whereby an interested party can
test the validity of the tax or the
truthfulness of the record. No matter
how illegal or unwarranted the tax
may have been, even if void, 1T must
be paid before the grantee can have
his instrument recorded. If it has
been paid, and the records i'll the
Treasurers office fail to show it, the
same result must follow as the matter
is made to depend entirely upon what
is shown by the Treasurer's records.
Among the rights guaranteed the
citizen by the constitution Is the right
to acquire. hold and enjoy property,
and that no person shall be deprived
of his property without due process OF
law, and that private property shall
not be taken for public use without
just compensation having first been
made or paid into the court for the
owner.
The right to ALLEVIATE property ia o.
sential to its use and enjoyment as
well as the right to acquire it, and
both are constitutional rights. 1t
cannot be said that this law does not
interfere with the right to dispose of
and acquire property, for unless the
deed OF transfer is recorded, a subse.
quent purchaser for value without
notice will take the title, and this is
made 80 by other legislative enact
ments, and thus the original purchaser
is placed without the protection of
the law.
Surely such state of affairs will
most seriously interfere with and inn
pair the right to sell and acquire, and
when an unjust illegal burden or re.
straint is imposed thereon it is an I'M
warranted interference.
1t is argued that if the tax is illegal
the party must pay it and then bring
suit to recover it back, and in State vs..
Nelson, Al Mimi, 25, it was held that
a payment under protest OF illegal
taxes to secure the recording of deed
was not n voluntary payment. But
whether this ia within the weight of
the authorities there may be some
question. Only those payments which
have been made under a claim involv-
ing the use of force have generally
been regarded as involuntary, and not
those which are merely unwillingly
made, and q, choice OF evils or OF
risks. But however this may be, it is
no answer or justification if an action
will lie to recover it back after pay
ment, for if it is an illegal or void de-
mand the State has no right to collect
it in the first instance.
The law in question is not regula-
ton of the matter of recording, but it
imposes an independent, distinct bur-
den upon the privilege and protection
afforded by the recording acts which
may even amount to a prohibition.
The records may show tax amounting
to more than the value of the property,
and beyond the ability of the party to
pay, and there is no alternative, no
discretion being vested in the Auditor
or Treasurer. And although this is
but a possible or probable result, it is
entitled to consideration.
II II the law provided n means by
which the validity of the tax could
be determined before payment, and
protected the party meanwhile by
providing for q temporary receipt OF
the deed, or otherwise, it probably
could be sustained as constitutional
even though it should put the burden
of proving the illegali:y of the tax
upon the grantee, which however
would look like an unnecessary hard
ship when we consider the power pos
sessed by the State to enforce the col
lection OF its revenues.
In the case of small illegal charges
the act in question practically inaugu-
rates q system of petty robbery by the
State, for the costs of suit to recov, T
small sums paid would prevent parties
from bringing them.
1t is not a taking by due process OF
law, and it conflicts in measure with
the constitutional provision declaring
that private property shall not be
taken for public purposes without just
compensation having been first made
or paid into court for the owner. The
act is rather judicial than legislative
in character. 1t in effect declares or
adjudges all taxes shown by the rec
ords as charge upon real estate, 10
be lawful, or it practically authorizes
the State to compel payment Of illegal
demands. The constitutional provi.
sion declaring that no person shall be
deprived of life, liberty or property
without due process of law is not
limited to judicial proceedings but ex'
tends to every proceeding which may
interfere with those rights whether
judicial, administrative or executive.
i In the case of an illegal tax, pay.
ment is virtually compelled by the
situation as choice of evils, and the
money is turned into the public fund
!, for public purposes. If an action to
recover it back would lie it would re-
suit in obtaining a county warrant fol
;, the amount, generally payable after
u the lapse OF some time and perhaps
0 with deprecated value.
In Conway vs. Cable, 81 Ill. 81, il
n was held that the Legislature could
t not declare an illegal tax sale valid
K and doubtless the same rule would ap
ply to an illegal levy. This case also
holds that the Legislature cannot i'm
8 pose unreasonable terms to the asser
It ton of a right, and that in case of 9
q void sale for taxes could not require
e the owner to pay the redemption
y money as condition to the right tC
= assert his paramount title. In Wilson
II vs.. McKenna, 81 Ill. 43, holding the
J. same, it was said that the effect o.
: such rule was to compel man te
e buy justice.
: Such laws as this, which interferet
: with the citizen in the transaction O
l ordinary business, are not necessary
}. to enforce the collection of any lawfn