Merchants' Trust Co. v. Wright

[150]

LORIGAN, J.

This is an action to quiet title asserted under tax-deeds from the state of California issued to plaintiff’s intestate. The case was here before on appeal by the plaintiff from a judgment in favor of the defendant and was reversed.

(Fox

v.

Wright,

152 Cal. 59, [91 Pac. 1005].) Upon a new trial judgment went for plaintiff and defendants appeal.

When this case was here before one of the points urged by the present appellants, then respondents, in support of the judgment in their favor was that section 3897 of the Political Code which provides that the tax-collector in making sales of property by the state which it had acquired for delinquent taxes “shall sell the property ... at public auction to the highest bidder” was unconstitutional. His argument was that if section 3897 was to be construed as requiring a sale of the entire property of the delinquent owner to the purchaser who would pay the highest cash price for it, and not as under former statutes, to the person who would pay the tax for the least quantity of land, then, as the law made no provision for the payment to the former owner of the surplus money over the accrued taxes, charges, and penalties there was imposed on the delinquent owner an excessive burden for the support of the government in violation of the constitutional provision requiring taxation to be uniform and compelling a person to bear only his proportionate share thereof.

This contention was decided adversely to the then respondents, the court holding that “when the law speaks of a sale of the ‘property,’ it means all of the land, and when it says that the land shall be sold to the ‘highest bidder’ it means him who will make the highest cash bid for all the property,” and that so construed the section is not unconstitutional although the law makes no provision for the return to the owner of the property of any excess of the selling price above the accrued taxes, charges, and penalties.

On this present appeal, where they are now the appellants, they make another attack upon this same section 3897, but on a different constitutional ground than urged by them as respondents on the former appeal, and it is the only point they make. Their claim now is that°the sale of the entire tract of land when the sale of a smaller portion thereof would be sufficient to enforce the lien of the state, is unconstitutional as being a deprivation of a citizen of his property without “due process