Bucknall v. Story

By the Court, Sawyer, C. J. : This is an action against the Tax Collector of San Francisco, the object of which is to procure a perpetual injunction restraining the sale of certain property upon an assessment made to pay the expenses for widening Kearny street, on the ground that the assessment is void for various reasons, and that the sale and deed of the Tax Collector, although void, would still be a cloud upon the title. The defendant demurred, and the Court sustained the demurrer, on the ground that the facts stated were insufficient to constitute a cause of action,- it being held by the Court that the sale would.be void upon the face of the proceedings, and that the 'deed would, therefore, cast no cloud upon the title.

It has been settled frorp. an early day in this State, and in accordance with the decisions of other States, that a Court will not restrain a sale for taxes, or otherwise, when it is [71]apparent. that the sale would he void on the face of the proceedings, upon which the purchaser must necessarily rely to make out a prima facie case to enable him to recover under the sale. In such case he has a perfect remedy at The principle is, that a proceeding which appears upon inspection to be void constitutes no cloud. (De Witt v. Hays, 2 Cal. 469; Burr v. Hunt, 18 Cal. 307; Robinson v. Gaar, 6 Cal. 275; Berri v. Patch, 12 Cal. 299, 300; Weber v. City of San Francisco, 1 Cal. 455; Hardenberg v. Kidd, 10 Cal. 403.)

In this case there was assessed upon the lands of plaintiffs' the sum of eighteen thousand one hundred ninety-three dollars and ten cents. The assessment not being paid, on the 21st of October, the defendant, as Tax Collector, added five per cents to the amount so assessed, making a total amount of nineteen thousand one hundred three dollars and twenty-five cents, or nine hundred ten dollars more than the amount actually assessed, and advertised that he would sell, and was intending to sell for the said whole amount, including the five per cent so added. It is claimed that a sale for this amount would be wholly without authority of law, and, therefore, void.

Section fifteen of the Act under which the proceedings to widen Kearny street were had, prescribes the mode of making an assessment roll, and when made out, provides that “ the Mayor shall annex his warrant, and the same shall be thereupon collected in the manner then prescribed by law for the collection of general taxes in said city and county.” (Stats. 1863-4, p. 353.) It will be seen that the “same,” that is to say, the assessment made, is to be collected. It is not said that anything else is to be collected, and the law for the collection of taxes is referred to for the purpose of designating the manner of collecting, and not what shall be collected. In the Act referred to for the manner of collecting, we find a provision that “on the third Monday of October in each year the Tax Collector shall, at the close of his official business for that day, enter upon the tax list or assessment roll, a statement that he has made a levy upon