Lawrence v. Doolan

Foote, C. — In the petition for rehearing, the opinion of Department Two, heretofore delivered, is not controverted, in so far as it determines that there was no misjoinder of parties defendant, and that two causes of action were not improperly joined. But it is claimed that the conclusion there arrived at was not sound, in that it declared the sureties of Austin, the tax collector, were responsible for the money received by him, in his official capacity, from Mrs. Lawrence, the plaintiff, and that the statute of limitations did not bar her right of action against them.

In reference to the duties of the tax collector in a matter of this kind, where the action was brought against him alone, this language is used by this court in Randall v. Austin, 46 Cal. 62: “Practically it is a mere deposit of [312]the taxes and assessments by each to await the result of the controversy in the courts, and though it is not expressly provided that the unsuccessful party may withdraw his deposit, we have not the least doubt that such was the intention of the legislature. It could not have been intended that the taxes and assessments should be twice paid, as we think is perfectly apparent from the whole scope and spirit of the act.

“When it appeared from the record of the proceedings of the board that the controversy was ended, the unsuccessful party was entitled to withdraw his deposit. If the consent of the board was necessary before he could withdraw the money, the plaintiff in this case obtained it. His petition to that effect was granted, and the clerk was directed to return his papers, including the tax collector’s receipts.

“This was a sufficient authority to the defendant to refund the money, and would have protected him from further responsibility.

“.The rule that voluntary payments cannot be recovered back has no application to the case, nor is there any force in the argument that the action should have been brought against the city and county instead of the tax collector.”

In the case in hand, the demurrer admits that the money was never paid over to the city, and if it was his duty so to do, which we do not now decide, the tax collector, nevertheless, by not paying it over, was responsible to the rightful owner.