County of Los Angeles v. Ballerino
Before: Haven
Synopsis
Action fob Taxes—Pabties — Suit by County—Omission of State Taxes The act of April 23, 1880 (Stats. 1880, p. 136), authorizing the bringing of suits to recover delinquent taxes, gives a county the right to maintain an action in its own name for delinquent taxes levied for county purposes; and the fact that it might also have sued in the same action (for delinquent state taxes, is immaterial, where it does not appear that any other action for the state taxes is pending or has been prosecuted to judgment.
Id. —Liability Cheated by Statute —Limitation of Action. —An action to recover delinquent taxes is not an action “ upon a contract, obligation, or liability, not founded upon an instrument in writing,” mentioned in section 339 of the Code of Civil Procedure, which must be brought within two years after the cause of action accrues, but is one which arises upon a liability created by statute, other than a penalty or forfeiture, and is barred by the three years’ limitation contained in section 338 of the same code.
Id. — Peboentage not a Penalty ok Fobfeitube. — The five per cent upon the amount of a delinquent tax, which under section 3770 of the Political Code the tax collector is directed to collect in addition to the delinquent tax, is not such a penalty or forfeiture as is excepted from the operation of section 338 of the Code of Civil Procedure, which prescribes a three years’ limitation for the bringing of actions, “ upon a liability created by statute other than a penalty or forfeiture,” or as falls within the provisions of section 340 of the same code, requiring an action upon a statute for a penalty or forfeiture to be brought within one year after the cause of action accrues.
Id.—Defense of Ebaudulent and Exobbitant Assessment—Tendee of Just Tax—Pleading—Evidence. —An answer in an action to recover a delinquent tax, which seeks to defend against the collection of the tax upon the ground that the assessment was fraudulently and corruptly made at an exorbitant valuation, with the intention of discriminating against him and causing him to pay more than his share of the public taxes, but which fails to allege that the defendant ever paid or offered to pay what would have been right for him to pay upon what he concedes would have been a fair valuation of his property, and fails to offer to pay what the court shall ascertain to be just, fails to state facts constituting an equitable defense to the action; and it is not error for the court to exclude evidence offered by him to show the real value of the land and the discrimination made against him in the assessment.
The Court. The points urged by appellant upon the re-argument of this case have been fully considered by us, and we think the judgment and order appealed from should be affirmed for the reasons given by us in the former opinion, filed herein on March 9, 1893, and that opinion will stand as the opinion of the court.
Judgment and order affirmed.
The following is the opinion above referred to, rendered in Department Two, on the 9th of March, 1893: —
De Haven, J. This is an action by the county of Los Angeles to recover from the defendant Ballerino taxes levied for county purposes in the year 1888, upon certain real property and improvements owned by him in that county. The prayer of the complaint is for judgment against that defendant for the amount of the tax, “ with five per cent thereon for delinquencies, and two per cent per month interest thereon from the last Monday of December, 1888, .... and for a decree . . . . that said real estate be sold, as provided by law,” etc. The [595]superior court gave judgment for plaintiff in accordance with the prayer of the complaint. The defendant appeals.
1. The act of April 23, 1880 (Stats. 1880, p. 136), authorizing the bringing of suits to recover delinquent taxes, and prescribing the form of complaint therefor, provides in its first section that “any county or city and county where such taxes are delinquent, may sue in its own name for the recovery of delinquent taxes, whether the same be for county or city, or city and county and state purposes, or taxes, or either of them.” This statute gives to plaintiff the right to maintain this action. (San Luis Obispo Co. v. White, 91 Cal. 432.) It is claimed by defendant that the plaintiff ought, also, to have sued in this action for the delinquent state taxes for the year 1888; that, having authority to sue for both state and county taxes, it ought not to have split its demand, thus subjecting the defendant to two actions when the whole matter in controversy could have been settled in one suit. But the question the defendant thus presents in argument does not arise upon this record, as it is not alleged in the answer that any other action is pending to recover the state taxes, or that any such action has been prosecuted to judgment, and the defendant is certainly not injured because the plaintiff did not sue for all that it was entitled to demand.
2. The action was not commenced until more than two years after it accrued, and defendant contends that it is barred by subdivision 1 of section 339 of the Code of Civil Procedure, which provides that an action “upon a contract, obligation, or liability, not founded upon an instrument in writing,” must be brought within two years after the cause of action accrues. This, however, is not such an action, but is one which arises upon a liability created by statute other than a penalty or forfeiture within the meaning of section 338 of the same code. (San Francisco v. Luning, 73 Cal. 610; San Francisco v. Jones, 20 Fed. Rep. 188; Lewis v. Rothchild, 92 Cal. 625; State v. Yellow Jacket etc. Min. Co., 14 Nev. 226.)
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