APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment reversed.
Mr. John W. Corbin, County Attorney, and Mr. Lin Orme, Jr., his Deputy, for Appellant.
Mr. L. J. Cox and Mr. Elijah Allen, for Appellees.
[52 Ariz. 29] LOCKWOOD, J.
This is an appeal from a judgment of the superior court of Maricopa county for the recovery of the sum of $390.82 taxes, which it is claimed were paid under protest. The question presented is solely one of law and the undisputed facts may be stated as follows: Ed C. Bloomer was for many years the owner of certain real estate situate in Maricopa county. During the years 1928, 1929, and 1930 there were levied certain state and county taxes against such property, which taxes the defendant county claimed were a lien against it on March 23, 1936. Bloomer had died in the meantime, and Victor Shill, as his administrator, on that date brought an action to quiet title to the premises above referred to against Maricopa county. The complaint alleged:
"That the defendant Maricopa County, Harry Moore, Treasurer, claims taxes for the years 1928, 1929 and 1930, all of which are subject to the statutes of limitations and are not collectible."
The county appeared and demurred to the complaint on the ground that the statute of limitations could not be pleaded as a basis for a suit to quiet title under the circumstances shown by the complaint, as the statute did not provide for the removal of the tax lien at the end of five years, but only stated that the county treasurer could not bring an action to recover the taxes after that period. The matter came on before the court, which quieted the title of the plaintiffs as requested, and further decreed as follows:
"And it is further ordered, adjudged and decreed that the taxes levied against the property hereinafter [52 Ariz. 30] described for the years 1928, 1929, and 1930 are not a lien on the said premises; and that the State of Arizona and the County of Maricopa are hereby barred from attempting to collect said taxes and the Treasurer and Ex-officio Tax Collector of Maricopa County, Arizona, is hereby ordered to cancel and remove from the tax rolls the taxes levied against the said premises for the said years of 1928, 1929, and 1930. Said premises are bounded and described as follows:
"The South Half (S1/2) of the Southeast Quarter (SE1/4) of the Northeast Quarter (NE1/4) of Section 28, in Township 1 North, Range 5 East, of the G. & S. R. B. & M., in Maricopa County, Arizona."
Thereafter an attempt was made to sell the property but the title company which examined the title refused to approve it until payment of the delinquent taxes notwithstanding the judgment aforesaid. For that reason, on July 3, 1936, the administrator paid said taxes under protest to the county treasurer, and brought this suit to
recover them, on the ground that the county had demanded their payment, and that said payment had been made under protest, although the tax was illegal and invalid. The case was heard and judgment rendered in favor of the plaintiffs for the recovery of the amount sued for from the county, whereupon this appeal was taken.
It is the theory of plaintiffs that on the 3d day of July, 1936, when the payment was made, the tax which was paid was illegal and invalid for the reason that in the action previously referred to the court had determined that the taxes were not a lien on the premises, and that the state and county were barred from attempting to collect them; that the payment thereof was made under protest, and that therefore by the provisions of section 3136, Revised Code of 1928, they were entitled to recover the taxes so paid. This section reads as follows:
[52 Ariz. 31] "Tax not to be contested unless paid; collection may not be enjoined. No person upon whom a tax has been imposed under any law relating to taxation shall be permitted to test the validity thereof, either as plaintiff or defendant, unless such tax shall first have been paid to the proper county treasurer, together with all penalties thereon. No injunction shall ever issue in any action or proceeding in any court against this state, or against any county, municipality, or officer thereof, to prevent or enjoin the collection of any tax levied. After payment an action may be maintained to recover any tax illegally ...