[661]
McFARLAND, J., dissenting.
I dissent, and am off opinion that the judgment ought to be affirmed.
This is an action brought by plaintiff, a banking corporation, to recover from the city of Los Angeles the sum of $4,235.96 alleged to have been paid by plaintiff under protest for illegal taxes for the fiscal year 1902-1903. Judgment went for plaintiff, and from the judgment defendant appeals.
Defendant demurred to the complaint upon the sole ground that it does not state facts sufficient to constitute a cause of action. It did not demur upon any special ground, nor did it interpose any pleading in the nature of a plea in abatement. The general demurrer was overruled, and defendant filed an answer in which some of the material allegations of the complaint were denied. A jury was waived, and the court made findings covering all the issues. No motion for a new trial was made. There is no bill of exceptions or statement, and therefore there is no evidence before us, and no point as to any error committed at the trial. All the points made by appellant for a reversal arise upon the general demurrer, appellant contending that the complaint does not state a cause of action.
The material facts as alleged in the complaint and found by the court which are necessary to be here stated, and which must on this appeal be taken as true, are briefly these: In April, 1902, plaintiff gave to the city assessor of the city of Los Angeles a verified statement in due form of all the personal property which it owned, possessed, or controlled at twelve o’clock m. on the first Monday of March, 1902. This statement showed that all the money which plaintiff had on said first Monday was $200,492.70, and the court found that “said statement was true and correct, and the plaintiff did not have in its possession or under its control any other, further or different sum of money.” But plaintiff, in addition to its general banking business, had, on adjoining premises, a safe-deposit department which was entirely distinct fi;om its general banking business, and from other vaults in which it kept money received from its general depositors; that on said first Monday of March, 1902, the defendant, by its treasurer, had in vault No. 19 of said safe-deposit department the sum of $352,997.38 of the moneys belonging to the
[662]
city; that said moneys were a special deposit, and were not in any way commingled with other deposits in plaintiff’s bank, but were kept separate and distinct from all other moneys; and the court finds that “said city money, $352,-997.38, was wholly and exclusively within the control of the said city of Los Angeles through its officer the said city treasurer, W. H. Workman.” Nevertheless, the city assessor arbitrarily assessed the plaintiff, against the latter’s will and protest, for the said $352,997.38, being the said city’s money as aforesaid. The city tax on said sum' of money was $4,235.96, the-money involved in this action. The city council of defendant met as a board of equalization in August, 1902, and the plaintiff filed with them a verified petition for the correction of said assessment by reducing the amount of money assessed to plaintiff to the extent of said $352,997.38, and presented the facts relative thereto as above stated; but the board refused to make any reduction. Afterwards the tax-collector of defendant demanded of plaintiff the payment' of the said $4,235.96 and threatened to levy, etc.; and •on November 18, 1902,—a few days before said tax would have become delinquent,—plaintiff paid said taxes to the tax-collector, and at the same time left with him a written protest in due form, claiming that the assessment and levy made for said $352,997.38 was illegal and void, etc.
From the foregoing it is entirely clear that the plaintiff had, upon the real merits, a most just cause of action against the defendant. To allow the city to retain money paid by plaintiff as taxes on the city’s own property would be to violate any admissible conception of what is right and just. Indeed, defendant makes no pretense of a defense on the merits, but defends only on the ground that the complaint is fatally defective.
The main contention of appellant on the general demurrer, and the only one that really calls for much discussion, is that the complaint is fatally defective because it fails to aver that before the commencement of the action respondent presented any claim or demand for the amount sought to be recovered to the city council of appellant, which demand, appellant contends,
was made necessary
by sections- 208, 209, and 222 of the city charter. Section 208 is as follows: “All claims or demands whatever against the city of Los Angeles, except
[663]
interest coupons on bonds and bonds of the funded debt, shall be paid only on demands as herein provided for”; and section 209 provides that such demands shall be presented to the council and be referred to the committee on finance, which committee shall by indorsement thereon approve or reject the same in whole or in part, and the demand shall then go to the council for action. “The council shall then consider the said demands and the action of said committee thereon, and shall, if the same be just and legal, approve the same, or may, if it so determine, approve in part or reject the whole.” Section 222 provides that “No suit shall be brought on any claim for money or damages against the city of Los Angeles . . . until a demand for the same has been presented as herein provided and rejected in whole or in part.” And there is in the complaint in the case at bar no averment of the formal demand made in compliance with said section.
It is apparent that this defense, founded upon a want of averment of demand, is, in the extreme sense, technical; it seeks to avoid a just judgment by taking refuge behind a general provision of law not intended for such purpose. But while it is true that a technical defense cannot be ignored, and must be maintained, when it blocks the way of obtaining a judgment on a meritorious cause of action by an obstacle so complete that it cannot be surmounted, or circumvented, or in any manner evaded, still the general rule is,—as stated by Baldwin, J., in
Roland
v.
Kreyenhagen,
18 Cal. 457, — that courts are justified in “regarding mere technicalities as obstacles to be avoided, rather than as principles to which effect is to be given in derogation of substantial rights.” A court will not maintain such a technicality unless there is no way of escaping it, unless it effectually closes every avenue through which the just judgment could be reached; and we do not think that the technical defense here under discussion is of that character.
Respondent makes numerous answers to appellant’s contention,—as, for instance, that the point of want of averment of demand cannot be reached by a general demurrer, but should have been presented by special demurrer or plea in abatement; that an involuntary trust was created against the city which rendered a demand unnecessary; that the veri
[664]
fied petition by respondent before the city council sitting as a board of equalization was in substance a sufficient demand; that after the completion of the assessment-book after' equalization the respondent had no demand within the meaning of the said provision relating to presentation and demand; and that in the case at bar it amply appears that the demand here insisted on would have been a vain thing, and therefore not required. We think it just to counsel for respondent to mention the foregoing points made by them in their elaborate brief; but we do not consider it necessary to pass upon these points, because we think that another contention made by them must be maintained,-—to wit, that the contention of appellant as to the demand is governed by section 3819 of the Political Code and by the ordinance of the city of Los Angeles designated as No. 3448, new series. Section 46 of the city charter provides that “the mode and manner of collecting such municipal taxes, and enforcing such tax lien, and the
proceedings
thereafter, shall substantially be the same as the mode and manner
at the time
prescribed by law for the collection of state and county taxes in said county.” (The italics are ours.) And at the time of the occurrences under which the present litigation arose section 3819 of the Political Code, or such of it as is necessary to be here quoted, was as follows: “At any time after the assessment-book has been received by the tax-collector, and the taxes have become payable, the owner of any property assessed therein, who may claim that the assessment is void in whole or in part, may pay the same to the tax-collector under protest, which protest shall be in writing, . .-. and when so paid under protest, the payment shall in no case be regarded as voluntary payment, and such owner may at any time within six months after such payment bring an action against the county, in the superior court, to recover back the tax so paid under protest; and if it shall be adjudged that the assessment, or the part thereof referred to in the protest, was void on the ground specified in the protest, judgment shall be entered against such county therefor.” While section 3819 of the Political Code was enacted subsequently to the adoption of the said section 46 of the charter, yet the latter evidently refers to the state law in force “at the time” of any payment of taxes under protest. And we are also satisfied that the language
[665]
“mode and manner of collecting such municipal taxes,” and “the proceedings thereafter,” cover the whole scheme of taxation and include the refunding of taxes illegally collected. But substantially the same provision is found in section 55 of the said ordinance of the city, No. 2848. That section is as follows: “At any time after the assessment-book has been received by the city tax and license collector and the taxes have become payable, the owner of any property assessed therein who may claim that the assessment is void in whole or in part may pay the same to the city tax and licence collector under protest, which protest shall be in writing and shall specify whether the whole assessment is claimed to be void, or if a part only, what portion, and in either case the grounds upon which such claim is founded, and when so. paid under protest the payment shall in no case be regarded as voluntary, and such owner may at any time within six months after such payment bring an action against the city in any court of competent jurisdiction to recover back the taxes so paid under protest, and if it shall be the judgment that the assessment on the part thereof referred to in the protest, was void on the ground specified in the protest, judgment shall be entered against the city therefor.” Whether or not the right of a party to get back illegal taxes paid under protest could, in the absence of other legislation on the subject, be properly brought within the general category of “claims and demands,” need not be here discussed. The ordinance above quoted and section 3819 of the Political Code deal expressly with the exceptional matter of taxes paid under protest, and afford an independent remedy. There is no provision for a demand, the only restriction being that the action must be commenced within six months “after such payment.” The protest gives the defendant full notice of the character and amount of the claim. And a further demand would be of no benefit. This view is fully supported by authorities cited by respondent, and particularly by the case of
Western Ranches
v.
Custer County,
89 Fed. 577. That was an action to recover taxes paid under protest; and “the defendant asks judgment upon the ground that the complaint does not state a cause of action, in this: that it does not appear that the plaintiff ever presented his claim to the board of county commissioners of Custer County for allowance, as
[666]
required, it is claimed, by the statute law of Montana, before an action could be maintained upon the same.” But a statute of Montana provided that in all cases of a levy of taxes which is deemed unlawful by the party whose property is taxed, such party may pay the same under protest, and may bring an action to recover back the amount so paid, and that if it be determined that the tax so paid was illegal may recover a judgment for the amount. The court held that this statute gave a special remedy as to taxes paid under protest, and that “a condition not named in the statute is not required”; and the judge who delivered the opinion.said: “For these reasons, I hold that there was no necessity for presenting this claim of plaintiff to the board of county commissioners of Custer County for allowance before plaintiff could maintain this action. The tax being an illegal one under the facts set forth in the answer, and paid under protest, the plaintiff was entitled to have the same refunded to him. The complaint under the statute cited above stated a cause of action, and it was not necessary that it should be shown that there was any demand upon the county commissioners for a refunding of the same.”
The contention of the appellant that the passage of said ordinance by the city council relative to the repayment of taxes under protest was
ultra, vires
and void is not maintainable. The city had full power over the assessment and collection of municipal taxes, and such power included the manner of collecting them under protest. The authority to refund is clearly an incident to the power to collect. The provision as to paying under protest is a salutary one and beneficial to both parties; if the protested tax is finally held to be good 1he municipality is not retarded in the collection of its revenue, and if it is held to be illegal the protestant has a remedy without running the hazard of losing his property by a refusal to pay in the first instance.
There is no merit in the contention that the taxes sought to be recovered were not paid under duress, and that the payment was therefore voluntary. The common-law rule as to distress of person or property does not apply to a statute expressly giving the right to pay under protest.
(Stewart
v.
County of Alameda,
142 Cal. 660, 662, 663, [76 Pac. 481], and cases there cited;
Western Ranches
v.
Custer County,
[667]
89 Fed. 577.) There are no other points calling for special notice.
The judgment appealed from should be affirmed.
Henshaw, J., and Lorigan, J., concurred.