Perry v. Washburn

Field, C. J. delivered the opinion of the Court—Norton, J. and Cope, J. concurring. This is an application for a mandamus to compel the defendant, •■as Tax Collector of the city and county of San Francisco, to accept from the relator two hundred and seventy dollars and forty-five cents, in “ United States notes,” tendered in payment of State and county taxes, assessed upon his property for the present year, and to execute and deliver to him a good and sufficient receipt for the taxes. The “ United States notes ” were issued pursuant to an Act of Congress, passed the twenty-fifth day of February, 1862, which declares that they “ shall be receivable in payment of all taxes, internal duties, excises, debts and demands, of every kind, due to the United States, except duties on imports, and of all [349]claims and demands against the United States, of every kind whatsoever, except for interest upon bonds and notes, which shah be paid in coin; and shall also be lawM money, and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid.”

The general Revenue Act of this State, of May 17th, 1861, declares that all taxes for State or county purposes “ shah be paid in the legal coin of the United States, or in foreign coin at the value fixed for such coin by the laws of the United States;” with a proviso that comity taxes levied in accordance with any special Act, may be collected in such funds as the special Act may designate.” (Sec. 2.) The Act also declares that every tax levied under its provisions or authority shall be a lien upon the property assessed, which shall attach on the first Monday in March of each year, and shall not be satisfied nor removed until the tax is paid, or the property has absolutely vested in a purchaser under a sale for the same (sec. 3); and that upon the payment of any tax, the collector shall mark the word “ paid,” and the date of payment, in the duplicate assessment roll, opposite the name of the person, or the description of the property liable for the tax, and shall give to the tax payer a receipt therefor, specifying the amount of the assessment, the amount of the tax, and a description of the property assessed. (Sec. 33.) As will be perceived, the tax-payer, upon the payment of his tax, or what is equivalent, a tender of payment, in the coin designated, is entitled to a receipt from the collector, and it is the duty of that officer to execute and deliver the same. It is a duty which the law specially enjoins upon him, and its performance may in consequence, under our statute, be enforced by mandamus. (Prac. Act, sec. 467.) The tax-payer is not obliged to trust to parol evidence of his payment, which is liable to loss ; he is entitled to a record of the fact on the books of the collector, and to written evidence of the fact in his own possession. Such evidence will show that the lien which follows the property, no matter in whose hands it may pass, has been removed, and will furnish a ready answer to inquiries generally made as to the payment of the tax, when a transfer of the property is desired. If, then, “ United States notes ” are receivable for the taxes of the relator, in place of the