People ex rel. Love v. Ashbury
Before: Rhodes, Wallace
Synopsis
Taxing Solvent Debts.—Solvent debts are liable to taxation.
Duty of Auditob in Relation to Delinquent Taxes.—When any of the taxes of one fiscal year are returned as delinquent, it is the duty of the Auditor to enter the same on the assessment roll of the next fiscal year, and then to enter the same upon the duplicate assessment book, unless they have been canceled by the Board of Supervisors under the affidavit of the Collector required by section thirty-eight hundred of the Political Code.
Poweb of Boabd of Supeevisobs to Cancel Taxes.—The Board of Supervisors has no power to cancel any taxes, or the assessment for any taxes, except such as are contained in the list by the Auditor and taken by him from the delinquent list, and as to which the Collector has made affidavit that “he has not been able to discover any property belonging to or in possession of the person liable to pay the same [taxes] whereof to collect them.”
Idem.—-Without such affidavit of the Collector, that a delinquent tax cannot be collected, and without the concurrence of the Board of Supervisors with the Collector, in the opinion that it is not collectable, said Board cannot cancel a tax.
Cancellation of Delinquent Tax.—A resolution or order of a Board of Supervisors canceling a delinquent tax, because it is not collectable, ought properly to specify each particular tax which is canceled.
Idem.—A resolution of a Board of Supervisors canceling a tax, without the affidavit of the Collector indorsed on the delinquent list, that it is not collectable, is void, and the Auditor should proceed with his duty in regard to such tax, in entire disregard of such resolution.
Pabties to Mandamus.—The Collector of taxes is not a necessary party in an application for a writ of mandate to compel an Auditor to enter on an assessment roll the delinquent taxes of the preceding fiscal year.
Duty of Auditob as to Delinquent Tax.—The statute does not expressly prescribe the time at which the Auditor shall enter the delinquent taxes on the next assessment roll, but the implication is that it should be done before the duplicate assessment book is delivered to the Collector.
Wbit of Mandate on Auditob.—The Auditor may be compelled, by write of mandate to enter on the assessment book the delinquent taxes of the preceding year, even after the duplicate copy of the same has been delivered to the Collector.
Opinion — Rhodes
By the Court, Rhodes, J.: It was determined by the unanimous opinion of the Court in the recent case of the Savings and Loan Society v. Austin, ante, p. 415, that solvent debts are liable to taxation. The solvent debts in question in this case were, therefore, proper subjects of taxation, and, so far as appears in this record, were properly assessed, and entered upon the assessment roll for the fiscal year 1872-3. The taxes thereon not having been paid, those solvent debts were returned as delinquent; and it became the duty of the respondent, as the Auditor of the City and County of San Francisco, under the provisions of section three thousand eight hundred and two of the Political Code, to enter upon the assessment roll for the fiscal year 1873-4, the taxes so remaining delinquent, and, of course, to enter the same upon the duplicate assessment book, unless they had been duly canceled by the Board of Supervisors. The Auditor, in justification of his refusal so to enter those taxes upon the assessment book, sets up and relies upon a resolution of the Board of Supervisors, passed October 25th, 1873, which is as follows: “Resolution number four thousand five hundred and sixty-six (new series)—Resolved, That the assessment on all solvent debts, and all solvent debts secured by mortgage on the list of unpaid taxes furnished by the Auditor on the assessment roll for the fiscal year 1872-3, be, and the same are hereby canceled; and the Clerk is hereby directed to return the said list of unpaid taxes, as corrected by this Board, to the Auditor, in order that the unpaid taxes remaining on said list may be entered on the assessment roll for the fiscal year 1873-4.”
It is claimed that this resolution is authorized by section three thousand eight hundred and one, and was passed in pursuance of the authority there given. This position is untenable, The Board has no authority to proceed to [528]cancel any taxes other than such as are contained in the list furnished by the Auditor, and taken by him from the delinquent list, after the Collector has made the affidavit required by section three thousand eight hundred to be indorsed thereon, to the effect that ‘ ‘ he has not been able -to discover any property belonging to, or in the possession of, the person liable to pay the same [taxes], whereof to collect them.” In other words, the Board has no power to cancel the taxes, unless the Collector has made the affidavit provided for in that section. It is not intended that the Board should act in the matter without regard to the action or non-action of the Collector, but the purpose is to give the Board authority to cancel such of the taxes returned delinquent and uncollected, because property could not be found out of which to make the taxes, as, in the opinion of the Board, cannot be collected—to cancel those taxes in respect to which it concurs with the Collector that they are not collectable. Without the affidavit, the Board has no jurisdiction to determine that any tax cannot be collected.'
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