Easterbrook v. City & County of San Francisco

SEARLS, C. This is an action brought by the appellant to recover from the respondent money paid under protest for Dupont street taxes, levied under authority of the act of March 23, 1876, entitled “An act to authorize the widening of Dupont street, in the city of San Francisco” (Stats. [342187]5-76, p. 433). A demurrer was interposed to the complaint by defendant, which was sustained by the court; and, plaintiff declining to amend, judgment was entered in favor of defendant, from which judgment plaintiff appeals. The cause comes up on the judgment-roll, and the sufficiency of the complaint constitutes the sole question for consideration.

The action is prosecuted under section 3819 of the Political Code, adopted February 27, 1893, which is in part as follows: “At any time after the duplicate assessment-book has been received by the tax collector, and the taxes have become payable, the owner of any property assessed therein, who may claim that the assessment is void in whole or in part, may pay the same to the tax collector under protest, which protest shall be in writing, and shall specify whether thé whole assessment is claimed to be void, or if a part only, what portion, and in either case the grounds upon which such claim is founded; and when so paid under protest the payment shall in no case be regarded as a voluntary payment, and such owner may at any time within six months after such payment bring an action against the county in the superior court to recover back the tax so paid under protest, ’ ’ etc. The residue of the section provides that if a judgment be recovered against the county in such a case, and a portion of the tax has been paid over to the state treasury, the treasurer shall be allowed therefor, and the amount so paid over deducted in the next settlement of the county treasurer with the controller, as provided in section 3871 of the Political Code.

Plaintiff filed a written protest, averring that the entire tax was void; and, within six months after paying the tax, brought this action, to recover the tax so paid from the city and county. The question in the court below seems to have turned, not upon the validity of the tax, but upon the liability of the defendant, if the invalidity be conceded. The statute under which the tax was levied provided for the widening of Dupont street (now Grant avenue), in the city and county of San Francisco. The act provided that' the value of the land taken for the widening of the street, and the damages to improvements thereon, or adjacent thereto, injured thereby, and all expenses whatsoever incident to the widening of said street, shall be held to be the cost of widening the street, and shall be assessed upon a described and limited district