De Witt v. Hays

California Supreme Court Oct 15, 1852Published

Before: Murray

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Holding. The court held that the plaintiffs were not entitled to an injunction against the tax sale because they possessed an adequate remedy at law and failed to demonstrate that the sale would cause irreparable injury.

Issues

Whether the interest in a franchise to collect wharfage is subject to taxation under the Revenue Act of 1851.
Whether a court of equity has jurisdiction to enjoin a tax sale based on a mere allegation of irreparable injury.
Whether the distinction between law and equity remains intact under the state's civil procedure system.

Disposition. reversed

Quotations verified verbatim against the opinion

“The simple allegation of irreparable injury is not sufficient, it should appear to the Court from the facts set forth in the bill.”

“We are of opinion the injunction was improvidently granted, and that the plaintiff is not entitled to the relief prayed for having a sufficient remedy at law.”

Synopsis

Appeal from the Fourth Judicial District.

The complaint sets forth a contract made the 13th February, 1851, between the Commissioners of the Sinking Fund of the city of San Francisco, and Roberts and West, by which the said commissioners granted to the said Roberts and West the right to carry out the wharf on Pacific street, to a point designated, and make other improvements in connection therewith, described in the said instrument; and granted to the said Roberts and West the exclusive right to use a certain space described in the agreement, on Pacific street, for anchorage and wharfage of vessels, &c. And the right to charge wharfage within the said space mentioned for five years, to commence at a specified period. And the said Roberts and West covenanted to perform, &c., and at the expiration of the said five years, to relinquish to the city in fee simple, all improvements, made by them by virtue of the grant, without charge or remuneration, and to pay to the said commissioners 10 per cent, of the gross receipts of said wharf during said five years. And avers that said grant had been confirmed by the city, and also by the legislature of the State; that Roberts and West had assigned to the plaintiffs July 15th, 1851, in trust for the members of the Pacific Wharf Company, and avers performance on the part of the plaintiffs, and payment of the 10 per cent, wharfage to the city.

And defendants further aver, that the said Pacific wharf has been assessed at a valuation of $72,000, for State and county taxes of the year 1851, which tax amounts to $1,150; and that defendant, as tax collector of the county of San Francisco, has demanded payment thereof, and is proceeding to collect the same by advertisement and sale of the said Pacific wharf; and will sell if not restrained, and produce great and irreparable injury to the plaintiffs. And plaintiffs aver that the said tax as against the plaintiffs, or said Pacific Wharf Company, is wholly illegal and void, and that said property is not liable in any way for the said tax. Wherefore they pray for an injunction to restrain defendant from further proceedings, &c.

June 17th. Defendant demurred for cause. 1st. For defect of parties in that the assessor was not made a party. 2d. That the facts do not constitute a cause of action, or aver that a writ of injunction is necessary to protect the rights of the complainants ; and does not show that the plaintiffs would be injured by the sale of the said property for taxes; nor that defendant will be released from liability to the State for the taxes assessed against said property; nor that the said assessment has ever been set aside, or objected to, or corrected; nor that the complainant has not a plain and adequate remedy at law; nor that the injury would be irreparable; nor that there is any equity in the complaint; nor that the assessment was illegal, and contrary to law.

Murray, Chief Justice, delivered the opinion of the Court, Anderson, Justice, concurring.

The respondents as trustees of the Pacific Wharf Company, ¡ plaintiffs in the Court below, filed their bill to enjoin the collec-1 tor of taxes from proceeding to sell Pacific wharf for a certain tax assessment made thereon, in the name of Pacific Wharf.

The bill alleges that said assessment is irregular, illegal, and void; and that said sale of the collector of taxes will work an [468]irreparable injury, and prays an injunction to restrain the same. A temporary injunction was awarded by the Court.

The defendants afterwards demurred to the bill for want of proper parties, and of jurisdiction in the Court below, which was overruled, from which judgment on demurrer the defendants appealed.

The legality of the assessment is not necessarily in question, as this case must turn on the jurisdiction below; but inasmuch as this point was fully discussed upon the argument, and the question may again present itself, we think it best to give a judicial construction to the Revenue Act of 1851. The bill alleges j the title of land upon which Pacific wharf is erected, is in the city ! of San Francisco, which must be taken as admitted by the demurrer.

The right of the plaintiffs in the premises is simply a right to ; collect wharfage and dockage for a certain term of years, and j is neither real estate nor personal property, but a franchise or incorporeal hereditament, an uncertain profit issuing out of the realty.

While the Constitution provides that all property shall be taxed, &c., still the quo modo is a matter of legislative control, and the statute must be steadily followed.

The interests of the plaintiff does not come under the head of personal property or real estate as defined by the statute of 1851. The Legislature has omitted to provide for any tax upon this species of property, and the naked right to collect wharfage cannot be assessed eo nomine, or made liable. We do not, however, wish to be understood as deciding, that property in a wharf, or the stock of the company, is not the proper subject of taxation ; admitting, however, that the assessment is illegal; are the plaintiffs entitled to a remedy by injunction ?

The legislature in providing that “there shall be but one form of civil action,” cannot be supposed to have intended at one fell stroke to abolish all distinction between law and equity, as to actions. Such a construction would lead to infinite perplexities and endless difficulties. The innovation extends only to the form of action, and the pleadings, while the technicalities of pleading have been dispensed with; and the plaintiff need only state his cause of action in ordinary and concise language, whether it be in

De Witt v. Hays

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