Grade v. County of Mariposa

GAROUTTE,J.

—This action was brought to recover taxes paid by plaintiffs under protest. The county of Mariposa appeals from the judgment rendered. These taxes were paid upon an arbitrary assessment made by the assessor; and it is conceded by plaintiffs that the only point involved in this appeal rests upon the fact as to whether or not they

neglected

or

refused

to furnish the assessor the statement of real and personal property provided for by section 3629 of the Political Code.

The findings of fact made by the trial court upon the point involved are directly in line with the evidence, and are to the effect that plaintiffs, by their attorney, who lived in an adjoining county, forwarded the statement to the assessor of Mariposa County, by United States mail, properly addressed, with postage paid, but that said assessor never received the statement so forwarded. Upon these facts we are clear that plaintiffs

neglected

to furnish to the assessor the statement required by law. While section 1963 of the Code of Civil Procedure declares the presumption to be “that a letter duly directed and mailed was received in the regular course of the mail,” still, that presumption is one of fact, and not conclusive, but disputable. When the statement was forwarded, as indicated by the finding, a

prima facie

case of compliance with the law was made out. But it was only

prima facie,

and was completely overthrown by the evidence of the assessor, to the effect that he never received it. Plaintiffs’ acts, coupled with the presumption of fact declared by the law, in the absence of other evidence, would justify a finding in their favor. But here the court cannot indulge in the presumption that the statement was received, for the finding is directly to the contrary. If the assessor did not receive the statement, then

[77]

plaintiffs neglected to furnish it. It necessarily follows from these views that plaintiffs neglected to furnish the statement demanded by the statute, and for that reason it was the duty of the assessor, under the law, to enter an arbitrary assessment against them.