People v. Ballerino

De Haven, J. This action is brought by the people of the state to recover the amount of taxes levied in the year 1888 for state purposes upon certain property of the defendant, Bailen no, situate in the county of Los Angeles. The amount of the delinquent tax exceeds three hundred dollars. The prayer, of the complaint is for a judgment against defendant Ballerino for the amount of such tax, with five per cent for delinquency, and also interest thereon, “ and for a decree .... that said real estate be sold as provided by law, and that out of the proceeds of such sale said tax so due .... to said county .... be paid.” Judgment was rendered in favor of the plaintiff in accordance with this prayer of the complaint, and the defendant, Ballerino, appeals. By section 1 of “an act prescribing the form of complaints in actions to recover delinquent taxes, and to authorize the bringing of suits therefor” (Stats. 1880, p. 136, Bancroft ed., p. 402), it is provided 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 and county and state purposes, or taxes, or either of them.” The defendant contends that the authority thus given to the county, or city and county, is exclusive, and that the people of the state are not authorized to maintain such actions. We do not think this act should be so construed. Section 3899 of the Political Code authorizes an action to be brought in the name of the people of the state to recover delinquent taxes under certain circumstances. This section of the Political Code is not expressly repealed by the later act of 1880 just cited, and there is no such repugnancy between that section and the act referred to as will justify us in holding that the latter repeals the former by implication. The remedy given by the act of 1880 is more simple, but there is nothing in its language which expressly or by implication deprives the people of the state of the right to maintain an action for the collection of delinquent taxes under the provisions of section 3899 of the Political Code. The remedy given by the act of 1880 is cumulative and not exclusive. But while this is [600]so, we are of the opinion that the complaint in this action does not state facts sufficient to entitle the people of the state to maintain this action under section 3899 of the Political Code. That section provides: —

“Sec. 3899. The controller may, at any time after a delinquent list has been delivered to a collector, direct such collector not to proceed in the collection of any tax on said list, amounting to three hundred dollars, further than to offer for sale but once any property upon which such tax is a lien. Upon such direction the collector, after offering the property for sale once, and there being no purchaser in good faith, must make out and deliver to the controller a certified copy of the entries upon the delinquent list relative to such tax; and the táx collector or the controller, in case the tax collector refuses ór neglects for fifteen days after being directed to bring suit for collection by the controller, may proceed by civil action in the proper court, and in the name of the people of the state of California, to collect such tax and costs.”