Decker v. Perry

VANCLIEF, C. The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, upon failure of defendant to answer, judgment was rendered in favor of the plaintiff. This appeal is from the judgment on the judgment-roll, and presents the question whether or not the demurrer was properly overruled.

The object of the action is to recover from the defendant $5.02, alleged to have been unlawfully assessed to plaintiff on his land by the ‘‘ Otay Irrigation District, ’ ’ and paid by plain[489]tiff to defendant under protest, to prevent plaintiff’s land from being sold by the defendant as collector of said district. It is averred in the complaint “that, on December 7, 3891, such proceedings were had before the board of supervisors of San Diego county, state of California, that the said board of supervisors declared the Otay Irrigation District duly organized under the name and style of ‘Otay Irrigation District, ’ and declared” five persons—Punk, Modie, Jordan, Spence and Merriam—elected as directors of said district, and since that time said persons have been acting as such directors; and that Charles Sanborn is acting as secretary of said board, and the defendant, Wesley Perry, is acting as collector of said Otay Irrigation District. That said board of directors have voted to themselves salaries and fees amounting to about $2,600, and claim to have contracted indebtedness against said district for other purposes, amounting to nearly $3,500. That on October 4, 1892, said board passed a resolution declaring that it was necessary, for the purpose of defraying the expenses of the organization of the district, including salaries of officers and employees, to raise the sum of $9,179.62; and, by a further resolution, ordered an assessment levied on the assessable property of said district of $9,179.62; and, by a further resolution, fixed the rate of assessment at ninety cents upon $100 valuation of the assessable property of said district. That said board never submitted to the electors of said district, at any election, the question as to whether or not an assessment of $9,179.62 should be levied, nor did said electors ever vote for any bonds, or to incur any indebtedness upon said district. That, after the levying of said assessment, the defendant, as collector of said district, received from the secretary of the board the assessment-books of said district, in which were entered said assessment against the property within said district, among which was five acres of land, the property of plaintiff, on which was assessed the sum of $4.78; and thereafter the defendant caused to be published in a newspaper published in said district a notice stating “that said assessment was due and payable, and would become delinquent at 6 o’clock P. M., on the last Monday of December, 1892, and that, unless paid prior thereto, five per cent would be added.” That, on December 29th (after the last Monday in December), “the plaintiff, to prevent his above-