Smith v. Farrelly

California Supreme Court Jul 1, 1877 No. No. 5415Published

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Holding. The court held that a tax levied for the construction of a drawbridge was unconstitutional because the assessment and collection were not performed by officials elected by the electors of the district, as required by the California Constitution. Furthermore, the court held that the payment of these taxes under the threat of a tax sale constituted payment under duress.

Issues

Whether a tax for local bridge construction must be assessed and collected by officials elected by the district's electors under the California Constitution.
Whether the payment of taxes under the threat of a tax sale constitutes payment under duress.
Whether the protest provided by the taxpayer was sufficient.

Disposition. reversed

Quotations verified verbatim against the opinion

“A tax must be based upon an assessment made by an Assessor elected by the electors of the district taxed, and collected by a Collector elected by the electors of the district taxed.”

“The first objection to the tax is that the property was not assessed by an Assessor elected by the qualified electors of the District, but that the assessment was in fact made by the County Assessor. This objection is fatal to the tax.”

“A payment made under those circumstances was a payment under duress.”

Synopsis

Assessment and Collection of Tax.—If an act creates a district within a county, and authorizes the Supervisors to levy a tax upon the property therein for the purpose of building a bridge, the property within the district cannot be'assessed for the tax by an Assessor elected by the county, nor can the tax be collected by a Collector elected by the county.

Tax as Distinguished from; Assessment.—A tax for local improvement levied upon the property within a district created by an act of the Legislature, is not an assessment within the meaning of that term as employed in art. 11, sec. 18, of the Constitution.

Protest on Payment of Tax.—It is not necessary for a person paying a tax under protest to state facts in the protest of which the Tax Collector has notice.

Tax Paid under Duress.—A tax paid under protest, after the delinquent list comes into the hands of the Tax Collector for collection by sale of property, and after the publication of the delinquent list, is paid under duress.

A tax must be based upon an assessment made by an Assessor elected by the electors of the district taxed, and collected by a Collector elected by the electors of the district taxed. (Constitution of California, art. 11, sec. 13; Williams v. Corcoran, 46 Cal. 555; People v. White, 47 Ibid. 617; People v. S. & C. R. Co. 49 Ibid. 414; People v. Sargent, 44 Ibid. 432.) The payment was made under duress. (Joyner v. Third School District, 3 Cush. (Mass.) 567; Hubbard v. Brainard, 35 Conn. 563.) The protest was sufficient. The defendant knew the extent of his powers, the source of his authority, and is bound and presumed to have known the law. To hold that he must be informed of what he already knows, of conclusions he is presumed to have reached, and told of facts peculiarly within his own knowledge, is to go to a limit which strains common sense.

John R. Glascock, for the Respondent.

The tax at bar is not a tax within the meaning of art. 11, sec. 13, of the Constitution, but a tax levied for local improvement ; and, as such, does not fall within the clauses in relation to equal and uniform taxation, or the mode and manner of assessment, or the person by whom assessment shall be made. Those clauses relate to taxation for revenue—taxation founded on the benefit supposed to be derived from the organization of a government for the protection of life, liberty, and property. In matters of taxation for local improvement the Legislature is left untrammeled by the Constitution. (Bennett v. Mayor of Sacramento, 12 Cal. 76; Emery v. S. F. Gas Co. 28 Cal. 345; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Meatman v. Crandall, 11 La. An. 498; Hagar v. Sup. Yolo Co. 47 Cal. 234; Taylor v. Palmer, 31 Cal. 252.)

It was competent for the Legislature to determine the mode and manner of assessment, and the person by whom it should be made and the tax collected.

[80]Assuming said act to be unconstitutional, said taxes were paid voluntarily, and cannot be recovered. There was no coercion nor duress.

1. The notice by the Tax Collector that if said taxes were not paid on or before the 18th of February, 1874, he would sell, etc., was insufficient to establish coercion.

The law requires that the Tax Collector shall “ designate the time and place of sale.” (Political Code, sec. 3767.)

Said taxes were paid in on the 17th of February, 1874.

Smith v. Farrelly

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