People v. Holladay
Before: Also, Currey, From, Rhodes, Sanderson
Synopsis
Complaint in Action to recover Taxes.—In an action brought by the people to recover judgment for delinquent taxes assessed during the three years preceding March 1st, 1861, the complaint is fatally defective if it does not aver that the Tax Collector has failed to collect the taxes in question by reason of his inability to find, seize, or sell property belonging to the delinquent.
Power of Legislature.—The Legislature possesses full power to legalize defective and invalid assessments of delinquent taxes, and to provide for their collection.
Act of May 17th, 1861, to legalize Assessments. — T^p first section of the Act of May 17th, 1861, entitled u An Act to legalize and provide for the collection of delinquent taxes in the counties of this State,” legalizes every assessment for taxes made during the three years preceding March 1st, 1861, however defectively and imperfectly it may have been made in any respect.
Complaint where Description Defective in Assessment.—If an assessment of a tax made during the three years preceding March 1st, 1861, is defective in not stating the kind and quantity of property assessed, whether real or personal, or if real, in not giving its description, the pleader, in an action brought to recover judgment for such tax, may, if the same can be ascertained, insert in his pom-plaint the necessary averments as to kind and quantity or description.
Assessment of Personal Property.—A complaint, under the Act of May 17th, 1861, which avers that the tax “was levied upon and assessed against personal property,” contains no cause of action. The complaint should not only aver that the tax was levied upon and assessed against personal property, but also the kind or kinds of personal property.
In what County Assessment to be made.—All personal property within a county on the first Monday of March, is assessable in that county if not removed from that county, before the assessment is actually made, and if assessed in that county before it is removed from it, the tax is payable in that county; but if removed from that county to another before actually assessed, the Assessor of that county may make the assessment, and transmit the same to the Assessor of the county to which the property is removed.
Where Tax Payable.—Taxes are due and payable in the county where the property is first assessed $ and if the property, after it has been assessed, be removed into another county, and there assessed, the first assessment is unaffected thereby, and payment of the latter assessment is not a discharge of the former.
By CURREY, J.—RHODES, J., concurring:
Construction op Act op May 17th, 1861.—The Act of May 17th, 1861, was only designed to legalize assessments in some respects formally defective, though substantially good, and was not intended to make good an assessment which was totally invalid for not stating either the kind or quantity of property assessed, or not describing it, when real estate.
Opinion — Sanderson
By the Court, Sanderson, C. J. This is an action to recover delinquent taxes on certain personal property, brought under the provisions of the Act of the Legislature of the 17th of May, 1861. (Statutes of 1861, p. 471.) After stating the title of the action the complaint proceeds as follows:
The plaintiff above named comes, by J. C. Hinckley, District Attorney for said county, and in pursuance of an Act of the Legislature of the State of California, entitled “An Act to legalize and provide for the collection of delinquent taxes in the counties of this State,” approved May 17, 1861, complains [302]against the defendants Benjamin Holladay and Jesse Holladay, known by the firm name of “ Holladay & Brother,” and for cause of action alleges that the said defendants are indebted to plaintiff in the full sum of three hundred and seventy-one dollars and twenty-one cents, which sum is due, owing and payable from defendants to plaintiff for public revenue and taxes levied as follows: Tax for State purposes, one hundred and sixty-five dollars ; tax for county purposes, two hundred and six dollars and twenty-one cents. Said taxes were levied upon and assessed against personal propérty valued at twenty-seven thousand five hundred dollars, belonging to said defendants, in the County of Solano, for the year 1858, etc.
It is claimed by the appellants that the foregoing complaint does not state facts sufficient to constitute a cause of action, and in support of this objection to the complaint they assign the following grounds : First—Because it does not allege that the Tax Collector has failed to collect the taxes in question by reason of his inability to find, seize or sell property belonging to the delinquents, as required by the second section of the Act under which the suit is brought. Second—Because it does not designate the “ kind and quantity” of the personal property upon which the taxes were levied and assessed, as required by the second section of said Act.
1. The first point seems to have been determined in favor of the appellants by the case of The People v. Pico, 20 Cal. 595. That action, like the present, was brought under the provisions of the Act of the 17th of May, 1861. In that case the taxes sued for had been assessed against real property, which constitutes the only difference between the two cases. The same points were made by the appellant in that case which are made in this, except so far as the second point may be affected by the character of the property against which the taxes were assessed. Both points were there decided in favor of the appellants.
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