People v. Pico

Norton, J. delivered the opinion of the Court—Field, C. J. concurring. The second section of the Act to Legalize and Provide for the Collection of Delinquent Taxes in the Counties of this State, passed [597]May 17th, 1861, enacts that if the Tax Collector of any county shall fail to collect the delinquent taxes mentioned in the preceding section, by reason of his inability to find, seize, or sell property belonging to the delinquent, it shall be the duty of the District Attorney to commence a civil action to recover the unpaid taxes. No right of action or authority to bring an action under that act is given, except in cases in which the Tax Collector shall fail to collect the delinquent tax for the reason above mentioned. The complaint in this ease, although averring the action to be brought in pursuance of the act, omits altogether to state the fact of the failure of the Tax Colector to colect the delnquent tax for the reason above specified, or for any reason. Without such an averment the complaint shows no cause of action under that act.

The same section requires the complaint to state the kind and quantity of property assessed,.both real and personal; and if any real, to describe the same. The action is to recover delinquent taxes on real estate, and the real estate is described in the complaint as the “unsold portion” of eleven square leagues of land known as Los Mokelamos. This is probably the manner in which the land was designated in the assessment rol, but it describes nothing. By whom unsold ? What part is the unsold portion ? If it had been sold by the Tax Colector by that designation, what specific part of the eleven square leagues would the purchaser have acquired ? To give any effect to this description, it would be necessary to reject the words “ unsold portion,” and consider it as a description of the whole tract. But there is no reason to suppose the Assessor intended to assess the whole tract to the defendant, and the Court has no authority to make an assessment for him. He may have assessed large portions of the tract to other persons, who may have paid their taxes. The plain intendment of the Act of 1861 is only to authorize an action to recover a tax which had been assessed upon property in such a manner that, if real estate, it could be described in the complaint. If the assessment was fataly defective in this respect, no cause of action could exist under the act. For this defect, also, we think the complaint shows no cause of action.

The demurrer, therefore, should have been sustained.