Falkner, Bell & Co. v. Hunt

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

This suit is brought to recover of the defendant, who is Tax Collector, a sum of money for taxes illegally assessed and paid by the plaintiffs under protest.

From the assessment roll, it appears that the appellants were assessed and taxed “for moneys on hand and loaned.” As a distinct item they were assessed “upon mortgages (Marysville, etc.) $100,000.” The tax on this item was paid under protest, and the object of this suit is to recover it.

1. If the money was paid under protest, and was not justly due, it may be recovered back in an action of this sort. (Hayes v. Hogan, 5 Cal. 243; McMillan v. Richards, 9 Id. 417, and the cases cited in the appellants’ brief.)

2. In order to justify this assessment, as it stands, it must be maintained that mortgages are species of personal property of a known or ascertainable value, and as such liable to taxation.

The second section of the Act of 1857 (Statutes, 326) provides that all property, of every kind and nature whatever, within this State, shall [171]be subject" to taxation, except, etc. (mortgages not included). Section three provides that the Assessor, between the first Monday in March and the first Monday in August, in each year, shall ascertain by diligent inquiry the names of all persons, corporations, etc., owning property, etc. By section five a definition is given of the terms, real and personal estate. The last is defined to mean and include “ all household and kitchen furniture; all law, medical and miscellaneous librar ries; all goods, wares and merchandise; all chattels of every kind and description; all money on hand or on deposit, in bank or banks, or with individuals; all the money at interest, secured by mortgage or otherwise, gold dust, solvent debts, stocks of goods on hand, horses, mules, oxen, cows, calves, beef cattle, hogs, sheep, goats, jacks and jennets, and cattle of every description, wagons, carriages, buggies, omnibuses, stages, stage coaches, sulkies, carts, drays and all other vehicles, whether for use, pleasure or hire; all machines and machinery; all works and improvements; all storeships and hulks; all steamers, vessels and water craft of every kind and name, either owned in whole or in part by a resident or residents of the State, or navigating the waters of any river or bay within the State, and having a general depot or terminus within the State; all capital loaned, invested or employed in any trade, commerce or business whatsoever; the capital stock of all corporations, companies, associations, firms or individuals doing business or having an office in the State; the money, property and effects of every kind, except real estate, of all banks, banking institutions or firms, bankers, money lenders and brokers; all houses, buildings, fences, ditches, structures, erections, or other improvements built or erected upon any land, whether such land be private property or the property of the State, or of the United States, or of any municipal corporation or county in the State, and all other property of whatsoever kind or nature not included in the term real estate, as said term is defined in this act.”