Esterbrook v. O'Brien

Paterson, J. This action was brought to enjoin the defendant O’Brien, as tax collector, from selling a certain lot, belonging to the plaintiff, for taxes levied to pay the principal and interest of the “Dupont Street bonds,” under the act of the legislature providing for the widening of Dupont Street, approved March 23, 1876. (Stats. 1875-76, p. 433.)

The complaint shows that the property is situated in the district assessed for the improvement; that the preliminary proceedings prescribed by said act were duly taken; that a report of the commissioners was made to and confirmed by the county court showing the description and cash value of lands and buildings taken for the improvement, and the damages done the same, together with the amount in which each parcel would be benefited by the improvement, amounting to seven hundred and ninety-six thousand eight hundred and thirty-seven dollars, including eight thousand two hundred dollars benefits to the plaintiff’s lot; that the total amount of costs and damages resulting from the improvement was put at nine hundred and fourteen thousand nine hundred and forty-one dollars; that after such confirmation the commissioners issued the bonds, amounting to one million dollars. Then follow allegations with respect to the levying of the taxes sought to be enjoined, which, it is claimed, show conclusively that the levy or assessment was wholly unauthorized, illegal, and void, but, nevertheless, sufficient in form to constitute a cloud upon the title of the plaintiff, and to impair the market value of his property.

It is claimed by the appellant that the levy was improperly made because the tax to pay the interest and the tax to pay the principal were united when the amounts for each ought to have been distinguished, and that the assessment was apportioned according to the enhanced values, as fixed by the commissioners, and not upon an annual assessment of the value of the property. In any event it is claimed the tax collector cannot now sell the property for the delinquent assessment of any year excepting the last;

[673]It may be conceded that the, levy was not properly made, and that the acts complained of are not merely irregularities but are such as to render the levy illegal and void (matters which we do not decide), and yet the plaintiff, in our opinion, is not entitled to any relief in equity. The rule stated by the respondent, and conceded to be correct by the appellant, is that if the plaintiff ought in equity and good conscience to pay the tax, or any part of it, he must first pay it, or the part of it which in equity and good conscience he ought to pay, before he can ask relief from a court of equity. The allegation of the complaint in that regard is as follows: “That he has been wrongfully and unlawfully charged for more than his just share or proportion of the said annual taxes so imposed upon said land for said Dupont Street taxes; and that the land and improvements thereon of plaintiff have been wrongfully and unlawfully charged with more than their legal and fair proportion of the said annual taxes, by reason of the failure by the duly constituted authorities of the city and county of San Francisco to assess and levy annually a separate tax upon the said lands described in said act, for the payment of the annual interest upon the said bonds; and to assess and levy annually a separate tax upon the said lands and improvements for the payment of five per cent of said sinking fund; that by the failure of said authorities to assess and levy a separate tax upon the large and valuable improvements situated on the westerly line of Dupont Street, or Grant Avenue, in said city, there has been imposed and charged upon the lands and improvements of this plaintiff, so located upon the north line of Sutter Street, in said city as aforesaid, a much larger proportion of the taxes assessed and levied under the provision of said act than is lawfully chargeable to said lands and improvements.” There is in this allegation an implied admission that some portion of the tax not stated is legal and fair and ought to be paid. Plaintiff must have had in mind some standard of fairness when he made this allegation, and recognized at least a moral obligation to bear a portion of the burden put upon the property included within the district.