Port Angeles Western R. v. Clallam County

The following opinion, prepared by DIETRICH, Circuit Judge, is adopted as the' opinion of the court by WILBUR, Circuit Judge, and WEBSTER, District Judge:

The appeal is from a judgment of dismissal following an order sustaining a motiop by which defendants challenged the sufficiency of the bill of complaint. By the suit appellant seeks a decree adjudicating as void, and restraining the enforcement of, assessments of taxes made by the defendant county and its *29 officers in the years 1927 and 1928, pursuant to the provisions of chapter 130 of the Washington Session Laws for 1925, p. 244, and particularly section 33 thereof, which is as follows: “A contract for the purchase of real property belonging to the United States, the state, or any county or municipality, shall for purposes of taxation be considered as personal property of the person holding the same, and no deed of the property described in such contract shall ever be executed and delivered by the state or any county or municipality until all taxes assessed against such contract and local assessments assessed against the land described therein are fully paid.”

The assessments relate to rigid s arising out of an executory…

On Petition for Rehearing.

The court below dismissed the complaint on (he merits, upholding the validity of the tax complained of, whereas the complaint should have been dismissed for want of equity and without prejudice to the right of the appellant to maintain an action at law for the recovery of the tax when, and if, paid. The decree will be modified accordingly, and affirmed as modified.

With this modification of the decree, the petition for rehearing is denied.