County of San Mateo v. Oullahan

Ross, J. These cases will be considered together. Each is an application for a writ of mandate, directed to the respondents in their official capacity, requiring of them the performance of certain acts demanded of them by the law if the money in question is a part of the pub-[648]lie revenue. The money is now in the hands of the attorney-general of the state, and is $803,582.93 in amount. Of this sum, $140,685.20 was received by him from the defendants in certain actions instituted by certain counties of the state against certain railroad corporations for the recovery of delinquent taxes for the fiscal years 1880-81, 1881-82, and 1882-83; the remaining $662,897.73 was received by him from the defendants in. certain actions instituted by the state against the same corporations for delinquent taxes for the' fiscal years 1883-84 and 1884-85. In the first class of cases the suits were brought under the act of the legislature approved April 23, 1880, authorizing any county or city and county where taxes are delinquent to sue in i,ts own name for the recovery thereof, “whether the same be for county, or for city and county, and state, purposes, or taxes, or either of them.” (Stats. 1880, p. 136.) In the second class of cases the suits were brought under that provision of the Political Code, as amended in 1883, declaring that “after the first Monday of February of each year the controller must .begin an action, in the proper court, in the name of the people of the state of California, to collect the delinquent taxes upon the property assessed by the state board of equalization; such suit must be for the taxes due the state, and- all the counties, and cities and counties, upon property assessed by the board of equalization, and appearing delinquent upon the duplicate record of apportionment of ‘railway assessments.’ The demands for state and county and city and county taxes may be united in one action.” (Pol. Code, sec. 3670.)

Pursuant to statute, the actions embraced within the first class above .alluded to—in number sixty-three— were commenced by the district attorneys of the respective counties in the Superior Court of their respective counties. They were all subsequently transferred to the Circuit Court of the United States, and there came on [649]regularly for trial,—the attorney-general appearing for the plaintiffs,—and after trial were submitted to the court for decision. On the 28th of February, 1884, the court ordered that judgment be entered in favor of the defendants in the actions, but before judgment was so entered, and on the next day,—February 29, 1884,— stipulation was presented to the court in forty-one of Said sixty-three cases, signed by the attorney for the defendants, and by the attorney-general of the state for the plaintiffs, agreeing in effect,, that notwithstanding the decision of the court before' announced, that judgment should be entered in favor of the plaintiff in the respective actions for the face of the taxes. And the Circuit Court thereupon and upon the oral consent of the attorneys for the respective parties vacated the order theretofore entered for judgment in favor of the defendants, and made and entered a judgment in favor of the respective plaintiffs in said forty-one actions for the face of the taxes; and therein apportioned the amounts of the respective sums between the state and the respective counties. A similar stipulation and judgment was entered in each of the remaining twenty-two eases of the sixty-three originally commenced by the district attorneys. The amounts of the judgments thus rendered and entered by the Circuit Court of the United States were subsequently paid to the attorney-general of the state by the defendants in the actions, and a part of which is the aforesaid sum of $140,685.20.