City of Stockton v. Western Fire & Marine Insurance

Foote, C. This is an action instituted by the city of Stockton to recover certain delinquent taxes which had been assessed upon a mortgage for thirty-five thousand dollars, executed by the Masonic Hall Association of said city to the Western Fire and Marine Insurance [622]Company, on the thirteenth day of March, 1884, upon certain real estate and improvements.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were overruled, and the defendants failing to answer, judgment passed for the plaintiff, from which this appeal is taken. / .

The technical objections urged as to the form of the complaint are, it seems to us, not well founded. It is competent for the legislature, in such special action as this, to prescribe the form of complaint to be used. (Richardson v. Tobin, 45 Cal. 34; Sullivan v. Mier, 67 Cal. 265.)

The form of the complaint filed in this action is that prescribed in section 21 of the charter of the city of Stockton, which was approved on the 27th of March, 1872. It was a general form, to be used in all cases for the collection of city taxes, authorized to be assessed and levied under that charter. There is nothing in the record or in the acts of the legislature to show that prior to the adoption of the constitution of 1879 that section was modified or repealed. There is no general law passed since that time which so affects it.

There is nothing before us which indicates that the city of Stockton, as a corporation, ever reorganized under the act of 1883. (Acts of 1883, p. 235.)

It must be true, therefore, that as a matter of law, the form of the complaint is not obnoxious to anything contained in section 6, article 11, of the constitution of 1879. (Thomason v. Ashworth, ante, p. 73.)

But the further point is made that the complaint makes it patent that, the tax was illegally assessed, because it was done after the first Monday in March of the year 1884.

In support of this contention, section 8, article 13, of the constitution, is cited. It provides that,—

“ The legislature shall by law require each tax-payer [623]