Sullivan v. Triunfo Gold & Silver Mining Co.

Rhodes, C. J., delivered the opinion of the Court:

In Sullivan v. Triunfo Cold and Silver Mininy Company (29 Cal. 585), the question of the legality of the first assessment mentioned in the complaint, the one which was levied July 6, 1865, was considered, and it was held to be legal; and- it is claimed by the defendants that that question is res adjudícala' by virtue of that decision. The plaintiff insists, that in this case, he has stated a new fact, which did not ■ appear in the" former action; that it was not averred in the complaint in that case, but in this, that the assessment was not levied for the- purpose of paying the proper and legal expenses of the corporation. It is averred, in each case, that the assessment was illegal and invalid, and the ground. up On-which the assessment was contested in the former case; was, that it was levied for the purpose of paying debts -con-, tracted by the trustees, exceeding the limit prescribed by the., by-laws of the company. This is an ■ objection to the; [465]assessment, or a fact tending to show the ultimate fact in issue, the illegality of the assessment. What the plaintiff X now claims as a new fact, is but a new objection to the assessment, or, at most, another probative fact tending to prove the ultimate fact of illegality. The fact affirmed on the one side, and denied on the other, was that the assessment was illegal; its illegality was the point of the issue. The issue might depend upon one or more than one fact, and if upon several facts, it was incumbent on the party who would claim their benefit, to present them in support of the issue. Were this not the rule, the plaintiff might maintain as many actions to enjoin the collection of the assessment, as there were facts which severally showed the invalidity of the assessment. The alleged new fact existed at the time of the commencement of the former action, and the plaintiff having neglected to avail himself of it then, is not now entitled to set it up, as a new ground of illegality of the assess- ' ment.

Some of the grounds upon which the second assessment is resisted will be noticed.

The fact that all of the former assessment had not been paid, is not a valid objection, for the collection of it was restrained by injunction when the second was levied. The statute makes that an exception to the rule forbidding a second assessment while the first remains unpaid.

The plaintiff claims that the authority to levy assessments is found in the Act of April 4, 1864 (Stats. 1863-4, p. 402) ; and the defendants rely on the Act of March 5, 1861 (Stats. 1861, p. 41). The defendants’ position is, that the Act of 1861 is special, and applies, as the title expresses, to “corporations organized in this State for the purpose of mining out of this State,” and the plaintiff contends that the Act of 1861 was repealed by the Act of 1864, and that assessments were to be levied according to the provisions of the latter Act. We see no way of escaping the conclusion that the latter repealed the former Act. The Act of 1864 is, in effect, amendatory of the first chapter of the Act concerning corporations, and is applicable to all corporations “formed