78 P. 290 | Cal. | 1904
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *726 The Tipton Irrigation District in Tulare County was organized as a public corporation under the provisions of the Wright Act (Stats. 1887, p. 29) in July, 1891, and in the year 1896 its board of directors levied an assessment of two dollars and forty-seven cents upon each one hundred dollars assessed value of the real property in the district, for the purpose of raising thirty-six hundred dollars with which to pay the annual interest on fifty thousand dollars of bonds theretofore issued by it and outstanding, and the further sum of $1,242.55 for a fund created by the district called "Bond Expense Fund." The defendant Thompson is the collector of the district, and prior to the commencement of this action had given notice as required by the act that unless the assessments upon the land in the district were paid before a certain day, the land would be sold on that day to satisfy the same. The plaintiffs are severally owners of certain lands within the district which are set forth in the complaint, and brought the present action to enjoin the defendant from selling the same, alleging as grounds therefor that the board of directors did not prior to calling the election at which the issuance of the bonds was authorized estimate or determine the amount of money to be raised for the purpose of constructing the necessary canals and works and acquiring the necessary property and rights therefor, and did not have the report or specifications of any engineer, or any basis or plan which might be used for determining what amount would be requisite for such purposes. Issues upon these allegations were presented by the answer of the defendant Thompson. Certain holders of the bonds so issued, amounting to eighteen thousand dollars, under leave of the court, intervened in the action, and united with the defendant in resisting the claim of the plaintiffs, and in addition thereto filed cross-complaints in which they recounted the matters set forth in their answers, and also set forth the proceedings for the issuance of the bonds and the character of the bonds; that they were bona fide purchasers thereof; that the interest *728 thereon for the year 1896 had not been paid, and the amount thereof, and prayed that the amount due them be adjudged to be a lien upon the lands within the district, and that the defendant Thompson be directed to sell said lands for such proportion of the assessment as would pay the amount due them. To these cross-complaints the plaintiffs filed a general demurrer, and, upon its being overruled, answered the same. Upon the trial of the cause the court found that the district is a valid corporation; that bonds to the amount of fifty thousand dollars had been issued in accordance with the provisions of the act and had been regularly sold; that the several cross-complainants arebona fide holders of portions of said bonds as set forth in their cross-complaints, and that the interest thereon from January 1, 1896, was unpaid. It also found that no special election had been held in the district authorizing an assessment to raise the $1,242.55 for the "Bond Expense Fund." Upon its findings of fact the court rendered judgment that the interveners are respectively the owners of the number of bonds set forth in their cross-complaints, and that each of the same, together with the interest unpaid thereon and interest accruing after the year 1896, is a valid and subsisting lien upon the lands within the boundary of the district; enjoining the defendant Thompson from selling any portion of the lands described in the complaint, except so much as may be necessary to pay to the interveners the amounts respectively due to them on account of interest on their respective bonds, and directing him, or his successor in office, to sell in accordance with law such proportions of said land advertised by him as may be required to pay to the interveners the amounts found due to them respectively for interest on their said bonds for the year 1896. From this judgment the plaintiffs have appealed upon the judgment-roll alone without any bill of exceptions.
1. Section
The bondholders herein were not brought into the action upon the ground that the controversy between the original parties could not be determined without their presence, but they were permitted to intervene by reason of their interest in the success of the defendant. They have, therefore, placed themselves by his side for the purpose of uniting with him in defeating the claim of the plaintiffs, and their right in this action to affirmative relief against the plaintiffs is no greater than is his. It does not appear whether the interveners named any persons as parties defendant to their cross-complaints, or that their complaints were served upon any other party to the action. The plaintiffs, however, answered their cross-complaints, and it may be assumed that they are named as *730
defendants to the claims therein set forth. It is very clear, however, that the defendant, as collector of the district, would not be entitled to the affirmative relief against the plaintiffs which is sought by the interveners, and that if he had asked for such relief the court would not have been authorized to grant it. For the purpose of defending the validity of the assessment in his efforts to collect it, the defendant Thompson sufficiently represents the district (Hughson v. Crane,
The collection of taxes belongs to the executive branch of the government, and can be assumed by the judiciary only under express legislative authority therefor. Courts may inquire into and determine the validity of the assessment or other proceedings, but unless the statute has declared it to be a lien it cannot adjudge it to be one, and if the statute has declared it to be a lien, and provided for its enforcement, its enforcement can be only in the mode provided by the statute. The right of a court of equity to adjudge that a lien exists against certain land carries with it the right to enforce such lien, but the rule is well recognized that a court of equity, as such, and in the absence of statutory authority therefor, has no jurisdiction to enforce a lien that is created by statute, *731
and for whose enforcement the statute has provided a mode.(Thompson v. Allen County,
2. It appears from the record that the assessment levied by the board of directors, amounting to $4,851, if it were all collected, would be only a trifle in excess of the amount needed for the payment of the annual interest upon the bonds and for the "Bond Expense Fund," but as the court has found that there had been no special election authorizing an assessment for this Fund, the amount sought to be raised — viz., $1,242.55 — was improperly included in the assessment. Under the provisions of section 22 of the statute (Stats. 1891, p. 149), authorizing the board of directors to levy an assessment "sufficient to raise" the annual interest upon the outstanding bonds, the board has a certain discretion in determining the amount to be raised, and courts will not interfere with its action unless it can be shown that it has abused this discretion. (Hughson v. Crane,
The judgment should be reversed.
*733Cooper, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed. Henshaw, J., McFarland, J., Lorigan, J.
Hearing in Bank denied.