California & Nevada Railroad v. Mecartney

Appeal from a judgment of the Superior Court of Contra Costa County and from an order denying a new trial.

The facts are stated in the opinion of the court. .

The notice for redemption was sufficient, as it was given in substantial compliance with the code. (Pol. Code, secs. 3780, 3785.). Whatever may be the fate of the tax deed the defendant cannot be deprived of the right to hold his lien until redemption he made. {Reed v. Lyon, 96 Cal. 504.) It was not necessary to assess the land and improvements separately, but the assessment of the “ right of way, together with the track and substructures and superstructures which support the same,” was a sufficient assessment. (See Pol. Code, secs. 3664, 3665.) As the railroad was not finished, an assessment of its franchise would have been improper, excepting in the county of the principal place of business of the corporation. (See Spring Valley Water Works v. Barber, 99 Cal. 36.) Respondent can have no decree without repay- • ment of the amount paid for its taxes with interest. There is nothing in the case to overcome the presumption that the assessment and “all the forms of law in relation to the assessment and levy have been complied with.” (San Francisco v. Bennie, 93 Cal. 475.) Under such circumstances we are at least entitled to our money with interest. (Harper v. Rowe, 53 Cal. 233. Concurring opinion of Justice Garoutte in Benson v. Shotwell, June 18, 1894; Barnett v. Cline, 60 Ill. 205.)

Under the new constitution, as well as under the pro-' visions of law adopted in pursuance thereof, all property not exempt from execution, in which definition is included a railroad franchise, must be taxed. (Cal. New Const., art. XIII, sec. 1; Pol. Code, secs. 3607, 3617, 3627.) The property of a corporation which is essential to the exercise of the functions for which it has been created, cannot be sold separate and apart from its corporate franchise, and as distinct therefrom, either under judicial process or for delinquent taxes, unless there is some express statutory provision for such sale. Especially is this rule applicable to a railroad corporation, inasmuch as it is regarded as an entirety, and therefore not severable and subject to be sold in sections. (Fond du Lac Water Co. v. City of Fond du Lac, 82 Wis. 322; Osha-loosa Water' Co. v. Board of Equalization,. 84 Iowa, 407; Georgia v. Atlantic etc. R. R. Co., 3 Wood, 434; Applegate v. Ernst, 3 Bush, 648; 96 Am. Dec. 272; Virginia etc. R. R. Co. v. Washington Co., 30 Gratt. 481; Missowri etc. R. R. Co. v. Morris, 7 Kan. 210; 1 Desty on Taxation, 392, 393, 397, 398; Pierce on' Railroads, 476; East Alabama Ry. Co. v. Doe, 114 U. S. 340, 353, 354; Guev. Tidewater Canal Co., 24 How. 257; Gregory v. Blanchard, 98 Cal. 311; Williams v. Mountaineer G. M. Co., 102 Cal. 134; Farmers’ Loan & Trust Co. v. Candler, 87 Ga. 241; Midland Ry. Co. v. Wilcox, 122 Ind. 84; Muller v. Dows, ,94 U. S. 444.) And inasmuch as a sale of a segregated portion of a line of railway would not transfer any interest in the corporate franchise the sale would be void, as the corporate property could not be utilized without the corporate franchise. (Memphis etc. R. R. Co. v. Railroad Commrs., 112 U. S. 609; Muller v. Dows, 94 U. S. 444; Midland Ry. Co. v. Wilcox, 122 Ind. 84.) The certificate of sale is void on its face, as it does not state “the time when the purchaser will he entitled to a deed.” (Pol. Code, sec. 3776.) The statement in the notice of redemption that the defendant would “ hereafter” apply for a deed rendered the notice insufficient. (Pol. Code, sec. 3785. See Brophy v. Harding, 137 Ill. 626.) The matters required to be stated in the notice prescribed by section 3785 of the Political Code constitute the form of the notice. They are facts to be stated in the notice, and if not truly stated, or if omitted, the notice does not serve the purpose had in view by the statute. The materiality, wisdom, or policy of the requirement is beyond inquiry by the courts. (Blackwell on Tax Titles, 4th ed., secs. 261, 262, pp. 286-88; Stebbins v. Kay, 123 N. Y. 35, 36; Lockwood v. Gehlert, 127 N. Y. 241; Hoytv. Saginaw, 19 Mich. 39, 46; 2 Am. Rep. 76; Smith y. Buhler, 121 N. Y. 213, 217, 218; Brophy v. Harding, 137 Ill. 621, 625-27; Benefield v. Albert, 132 Ill. 665, 671; Wisner v. Chamberlin, 117 Ill. 578, 579; Hill v. Timmermeyer, 36 Kan. 252; Knowlton v. Moore, 136 Mass. 32, 33; Alexander v. Pitts, 7 Cush. 503, 505; Grimm v. O’Connell, 54 Cal. 522; Reed v. Lyon, 96 Cal. 501; Miller v. Miller, 96 Cal. 380; 31 Am. St. Rep. 229; Hughes v. Gannedy, 92 Cal. 386; Landregan v. Peppin, 86 Cal. 126, 127; Long v. Wolf, 25 Kan. 522; Cartwright v. McFadden, 24 Kan. 668-70; Wye-r v. La Rocque, 51 Kan. 710; Brady v. Doiuden, 59 Cal. 51; Daly v. Ah Goon, 64 Cal. 512; Hubbell v. Campbell, 56 Cal. 527; Wilson v. Atkinson, 68 Cal. 591; Bidleman v. Brooks, 28 Cal. 72; Daniels v. Case, 45 Fed. Rep. 843.) The record shows that the purchase of appellant, the certificate of sale, and the deed issued to him are all invalid, and therefore he has no lien, and is not entitled to any relief in this action. (Barber v. Evans, 27 Minn. 93; McCormick v. Edwards, 69 Tex. 106, and authorities there cited; Carter v. Phillips, 49 Mo. App. 319; Axtell v. Gerlach, 67 Cal. 483; Greenwood v. Adams, 80 Cal. 74; Brady v. Burke, 90 Cal. 1.) Caveat emptor applies here. (Pearson v. Creed, 78 Cal. 147.)