Ott, J.
This is an action for damages for an allegedly wrongful distraint and sale of personal property to satisfy a tax lien. At the close of plaintiffs’ case, the court granted a nonsuit. From the order of dismissal, plaintiffs have appealed.
Plaintiff Richard B. Metzger died October 6, 1954, subsequent to this appeal. F. D. Metzger qualified as administrator of his estate and, as such, has been substituted as one of the appellants, by order of this court. For the purpose of this opinion, we shall refer to Richard B. Metzger as though he were the sole appellant.
July 28, 1948, appellant leased an abandoned mill and millsite, located in Lewis county, for a period of one year. In September, 1948, appellant had moved sufficient equip[479]*479ment to the mill to start production. Late in 1949, he had moved in and was using all of the personal property involved in this cause of action.
In February, 1951, the treasurer of Lewis county observed a sheriff’s notice of execution sale which described resaw mill equipment belonging to appellant. An investigation disclosed that the personal property had never been assessed on the personal property rolls since it had been in Lewis county. A supplemental assessment for the year 1950 was immediately made, as provided by RCW 84.40.080. The amount of the tax due was determined to be $79.72. A notice of the amount of the personal property tax due Lewis county was sent to the appellant by the county treasurer. Upon receipt of the personal property tax notice, appellant wrote to the treasurer February 25, 1951, to ascertain the description of the personal property upon which the tax was assessed, the date when the tax would be due, and why he was not previously notified, if the levy was for the year 1950. March 1, 1951, the deputy treasurer replied to appellant’s inquiry as follows:
“In reply to your letter re- Personal Property Tax.
“Please find enclosed a copy of the assessment detail, you will be able to see what you are assessed for, the one detail is the assessment for last year, which has been supplemented for reason that your mill was not assessed in 1950, this tax is now due in the amount of $79.72. The second detail is the assessment for this year and the tax will become due next February 1952.”
The personal property detail sheets which were enclosed in the letter itemized the equipment assessed as follows: one edger, one resaw, one planer, motors and compressors, one U. S. Army halftrack, fire pump, miscellaneous rollers, belts, etc.
The personal property tax became delinquent April 30, 1951. Thereafter, the appellant received a second notice advising that the tax was now delinquent. This notice contained a synopsis of the laws of the state of Washington with reference to the assessment, levy, and collection of taxes, and specifically informed the owner that delinquent [480]*480taxes could be collected without notice “and if necessary [the treasurer] may forthwith distrain sufficient goods and chattels to pay the same.”
Appellant admittedly failed to pay the delinquent tax. At a time subsequent to receiving the second notice, appellant sold the U. S. Army halftrack for seven hundred dollars. The deputy treasurer visited the millsite on several occasions. He observed that the U. S. Army halftrack was gone and that the tool room had been broken into. In accordance with RCW 84.56.100, 84.56.110 [cf. Rem. Supp. 1949, §§ 11247,11250], the treasurer elected to distrain the remaining property in order to collect the 1951 tax which was then delinquent, and to collect the 1952 taxes, the lien of which had attached to the property although those taxes were not yet due.
August 7, 1951, the treasurer took possession of the remaining property by posting a distraint notice (exhibit No. 2), which stated:
“You are hereby notified that in accordance with the revenue Laws of the State of Washington . . . , I, Harold Quick, Treasurer of Lewis County, have levied upon and taken possession of the property, hereinabove described, and you are hereby distrained from disposing of said goods or chattels, or any part thereof, until all taxes, interest, costs and accruing costs have been paid in full.” (Italics ours.)
The notices of the sale of the property distrained were posted as the law directs.
The treasurer of Lewis county sent a copy of the notice of distraint and notice of sale to appellant by registered mail at his last known address. The letter was returned to the treasurer marked unclaimed.
August 17, 1951, the property was offered for sale, as provided by law, and sold for eight hundred seventy-five dollars. The taxes and costs totaled $161.44. The balance of the sale price was retained by respondent treasurer for the benefit of appellant.
Appellant testified that two steel strapping machines which he was leasing were sold by the treasurer. The only evidence offered by appellant was that, when he visited the [481]*481mill about two and one-half weeks prior to the sale, the strapping machines were then on the premises.
On appeal, appellant contends (1) that the property was unlawfully distrained for the reasons (a) that it was not taken into actual physical possession by the treasurer, and (b) that it was immovable property and constructive notice of distraint should have been given by filing notice in the office of the county auditor as provided by RCW 84.56.080 [cf. Rem. Supp. 1949, § 11247]; (2) that the treasurer should not have included in the sale notice the levy for 1951, being the tax for 1952; and (3) that sufficient evidence was introduced by appellant with reference to the sale of the leased strapping machines to take the case to a jury.
The county treasurer is charged by law with the duty of collecting delinquent personal property taxes. RCW 84.56-.020, 84.56.050 [cf. Rem. Supp. 1949, § 11244, Rem. Supp. 1941, § 11245],
RCW 84.56.070 [cf. Rem. Supp. 1949, § 11247] outlines the following procedure for collection of all personal property taxes:
(1) After February 15th of each year, the treasurer shall proceed to collect all personal property taxes. (This the treasurer of Lewis county did.)
(2) He shall give notice by mail to all persons charged with personal property taxes that the same are due and payable. (Appellant admits that he received this notice and made inquiry concerning the levy and tax.)
(3) If such taxes are not paid before they become delinquent, he shall forthwith proceed to collect them. (In the instant case, the treasurer sent a second notice informing appellant that the taxes were delinquent, and outlined the procedure for distraint and sale in the event the tax was not paid. The treasurer, instead of proceeding forthwith
Free access — add to your briefcase to read the full text and ask questions with AI
Ott, J.
This is an action for damages for an allegedly wrongful distraint and sale of personal property to satisfy a tax lien. At the close of plaintiffs’ case, the court granted a nonsuit. From the order of dismissal, plaintiffs have appealed.
Plaintiff Richard B. Metzger died October 6, 1954, subsequent to this appeal. F. D. Metzger qualified as administrator of his estate and, as such, has been substituted as one of the appellants, by order of this court. For the purpose of this opinion, we shall refer to Richard B. Metzger as though he were the sole appellant.
July 28, 1948, appellant leased an abandoned mill and millsite, located in Lewis county, for a period of one year. In September, 1948, appellant had moved sufficient equip[479]*479ment to the mill to start production. Late in 1949, he had moved in and was using all of the personal property involved in this cause of action.
In February, 1951, the treasurer of Lewis county observed a sheriff’s notice of execution sale which described resaw mill equipment belonging to appellant. An investigation disclosed that the personal property had never been assessed on the personal property rolls since it had been in Lewis county. A supplemental assessment for the year 1950 was immediately made, as provided by RCW 84.40.080. The amount of the tax due was determined to be $79.72. A notice of the amount of the personal property tax due Lewis county was sent to the appellant by the county treasurer. Upon receipt of the personal property tax notice, appellant wrote to the treasurer February 25, 1951, to ascertain the description of the personal property upon which the tax was assessed, the date when the tax would be due, and why he was not previously notified, if the levy was for the year 1950. March 1, 1951, the deputy treasurer replied to appellant’s inquiry as follows:
“In reply to your letter re- Personal Property Tax.
“Please find enclosed a copy of the assessment detail, you will be able to see what you are assessed for, the one detail is the assessment for last year, which has been supplemented for reason that your mill was not assessed in 1950, this tax is now due in the amount of $79.72. The second detail is the assessment for this year and the tax will become due next February 1952.”
The personal property detail sheets which were enclosed in the letter itemized the equipment assessed as follows: one edger, one resaw, one planer, motors and compressors, one U. S. Army halftrack, fire pump, miscellaneous rollers, belts, etc.
The personal property tax became delinquent April 30, 1951. Thereafter, the appellant received a second notice advising that the tax was now delinquent. This notice contained a synopsis of the laws of the state of Washington with reference to the assessment, levy, and collection of taxes, and specifically informed the owner that delinquent [480]*480taxes could be collected without notice “and if necessary [the treasurer] may forthwith distrain sufficient goods and chattels to pay the same.”
Appellant admittedly failed to pay the delinquent tax. At a time subsequent to receiving the second notice, appellant sold the U. S. Army halftrack for seven hundred dollars. The deputy treasurer visited the millsite on several occasions. He observed that the U. S. Army halftrack was gone and that the tool room had been broken into. In accordance with RCW 84.56.100, 84.56.110 [cf. Rem. Supp. 1949, §§ 11247,11250], the treasurer elected to distrain the remaining property in order to collect the 1951 tax which was then delinquent, and to collect the 1952 taxes, the lien of which had attached to the property although those taxes were not yet due.
August 7, 1951, the treasurer took possession of the remaining property by posting a distraint notice (exhibit No. 2), which stated:
“You are hereby notified that in accordance with the revenue Laws of the State of Washington . . . , I, Harold Quick, Treasurer of Lewis County, have levied upon and taken possession of the property, hereinabove described, and you are hereby distrained from disposing of said goods or chattels, or any part thereof, until all taxes, interest, costs and accruing costs have been paid in full.” (Italics ours.)
The notices of the sale of the property distrained were posted as the law directs.
The treasurer of Lewis county sent a copy of the notice of distraint and notice of sale to appellant by registered mail at his last known address. The letter was returned to the treasurer marked unclaimed.
August 17, 1951, the property was offered for sale, as provided by law, and sold for eight hundred seventy-five dollars. The taxes and costs totaled $161.44. The balance of the sale price was retained by respondent treasurer for the benefit of appellant.
Appellant testified that two steel strapping machines which he was leasing were sold by the treasurer. The only evidence offered by appellant was that, when he visited the [481]*481mill about two and one-half weeks prior to the sale, the strapping machines were then on the premises.
On appeal, appellant contends (1) that the property was unlawfully distrained for the reasons (a) that it was not taken into actual physical possession by the treasurer, and (b) that it was immovable property and constructive notice of distraint should have been given by filing notice in the office of the county auditor as provided by RCW 84.56.080 [cf. Rem. Supp. 1949, § 11247]; (2) that the treasurer should not have included in the sale notice the levy for 1951, being the tax for 1952; and (3) that sufficient evidence was introduced by appellant with reference to the sale of the leased strapping machines to take the case to a jury.
The county treasurer is charged by law with the duty of collecting delinquent personal property taxes. RCW 84.56-.020, 84.56.050 [cf. Rem. Supp. 1949, § 11244, Rem. Supp. 1941, § 11245],
RCW 84.56.070 [cf. Rem. Supp. 1949, § 11247] outlines the following procedure for collection of all personal property taxes:
(1) After February 15th of each year, the treasurer shall proceed to collect all personal property taxes. (This the treasurer of Lewis county did.)
(2) He shall give notice by mail to all persons charged with personal property taxes that the same are due and payable. (Appellant admits that he received this notice and made inquiry concerning the levy and tax.)
(3) If such taxes are not paid before they become delinquent, he shall forthwith proceed to collect them. (In the instant case, the treasurer sent a second notice informing appellant that the taxes were delinquent, and outlined the procedure for distraint and sale in the event the tax was not paid. The treasurer, instead of proceeding forthwith to collect the delinquent tax, waited from April 30, 1951, to August 7, 1951, before proceeding to distrain and sell the property.)
(4) If he is unable to collect the tax when due, the treasurer shall prepare papers in distraint, which shall con[482]*482tain a description of the personal property, the amount of taxes due, the amount of accrued interest from the date of delinquency, and the name of the owner or reputed owner. (The appellant does not deny that proper papers of distraint were prepared and posted.)
(5) He shall, without demand or notice, distrain sufficient goods and chattels belonging to the person charged with such taxes to pay them, together with accrued costs. (Although the statute does not require any notice of the distraint, the treasurer of Lewis county sent a registered letter containing a copy of such notice and of the notice of sale to the last known address of the appellant. This letter was returned unclaimed.)
(6) He shall advertise the sale, by posting written notices in three public places in the county in which such property is distrained. (The notices of sale were posted as required by law.)
(7) Such notice shall state the time when and the place where the property will be sold. (The notices of sale were not challenged in this respect.)
Each and every one of the procedural steps with reference to perfecting a legal distraint and sale of movable personal property was fully performed by the treasurer of Lewis county.
Appellant contends that, in order to have been legally distrained, this property should have been taken into physical custody by the treasurer. In this regard, the county treasurer can, in his discretion, choose to distrain and take possession of the property in any one of several methods. He may take physical possession of it, he may appoint a keeper to watch over it, or he may take possession by simply posting a notice that he has distrained the property for the purposes of sale. Each of such methods is a distraint and taking possession of the property. In this case, the distraint notice, quoted above, stated that the treasurer was taking possession by simply posting the notice.
In the cases of J. K. Lbr. Co. v. Ash, 104 Wash. 388, 176 Pac. 550 (1918), and State ex rel. Peoples Nat. Bank v. King County, 36 Wn. (2d) 10, 216 P. (2d) 225 (1950), this court [483]*483specifically authorized distraint without physical possession simply by posting notices of distraint upon the property.
We therefore hold that, to distrain personal property, the county treasurers are not required by law to take physical possession of the property.
Further, where a county officer has discretion in the performance of his duties, we have consistently held that that discretion will not be questioned except for clear abuse. State ex rel. Washington Toll Bridge Authority v. Yelle, 197 Wash. 110, 123, 84 P. (2d) 688 (1938), and cases cited; State ex rel. Becker v. Wiley, 16 Wn. (2d) 340, 347, 133 P. (2d) 507 (1943), and cases cited; Stoor v. Seattle, 44 Wn. (2d) 405, 410, 267 P. (2d) 902 (1954), and cases cited. In the instant case, there was no abuse of discretion.
Appellant contends that RCW 84.56.080 [c/. Rem. Supp. 1949, § 11247] applies. The county treasurer has been given the right, by this statute, to determine whether the property is incapable or reasonably impracticable of manual delivery. The treasurer of Lewis county determined that the property was reasonably practicable of manual delivery, and that, therefore, it was not necessary to file the notice of distraint with the county auditor. That he did not abuse his discretion in so finding is borne out by the facts of this case, in that the appellant had moved the machinery up to the mill, and it is assumed that the purchaser moved it away.
Appellant next contends that the treasurer should not have included in the sale notices the tax for the 1951 assessment.
RCW 84.56.100 and 84.56.110 [cf. Rem. Supp. 1949, §§ 11247, 11250] precisely authorized the treasurer, in his discretion and under circumstances such as confronted him in this case, to distrain personal property and collect the amount to become due. We therefore find no merit in this contention.
Appellant also contends that two steel strapping machines which he was leasing were sold by the treasurer. No proof was offered to show that the items were on the premises at the time of the distraint, or that the treasurer took possession [484]*484of the items in question, or that the purchaser bought or received the items claimed to have been wrongfully sold. Further, the treasurer’s distraint and his notice of sale did not specifically include the machines.
The trial court must consider the evidence and all reasonable inferences therefrom most favorably to plaintiff (appellant in this case), when considering a motion to dismiss. Gaasland Co. v. Hyak Lbr. & Millwork, 42 Wn. (2d) 705, 257 P. (2d) 784 (1953).
Since there was no evidence presented by appellant from which a wrongful sale could be reasonably inferred, there was no issue of fact to submit to a jury, and therefore the trial court properly dismissed the action.
[.6] Finally, appellant contends that, had the treasurer actually taken physical possession of the property, the appellant would have then had notice of the distraint.
The legislature saw fit to specifically waive notice of distraint when it provided that “ ... he [the treasurer] shall without demand or notice distrain ...” (Italics ours.) If notice of distraint is desired, the legislature must provide for it. The judgment of the trial court is affirmed.
Hamley, C. J., Mallery, Schwellenbach, Hill, Don-worth, and Weaver, JJ., concur.