87 P. 241 | Cal. Ct. App. | 1906
This is an action brought by the city of Los Angeles, a municipal corporation, for the recovery of $1335.18, taxes, with penalties, levied by said municipality upon the property of Andrew Glassell, deceased. The superior court gave judgment for the full amount claimed, and the defendants appeal from the judgment and from an order denying a motion for a new trial. *45
The complaint is very brief; after alleging the death of Andrew Glassell on January 28, 1901, in the city of Los Angeles, the appointment, on February 19, 1901, of the defendants as executors of his last will, and their qualifications as such, it is further alleged: "That said Hugh Glassell, as executors of the last will and testament of said Andrew Glassell, deceased, are indebted to the plaintiff in the sum of thirteen hundred and thirty-five dollars, eighteen cents, with ten per cent penalty added thereto for nonpayment thereof, and interest thereon at the rate of two per cent per month, from December 1, 1901; which said taxes were duly assessed and levied by said city of Los Angeles for the fiscal year 1901-2, upon personal property which then and there belonged to and was part of the estate of said Andrew Glassell, deceased, and which said defendants, as such executors, had in their possession and control in said city of Los Angeles at 12 o'clock, noon, on the first Monday in March, 1901; that said personal property so assessed consisted of solvent credits in the amount of $101,605, bonds in the amount of $5000, and money in the amount of $210." The defendants deny the allegations of the complaint, and allege that they were nonresidents of the city of Los Angeles on the first Monday in March, 1901; admit the ownership of the bonds and money described in the complaint, but deny the ownership of the solvent credits. The finding of the court in regard to solvent credits was that the defendants as executors had in their possession and control in the city of Los Angeles solvent credits amounting to the sum of $71,756, and no more, at 12 o'clock, M., on the first Monday in March, 1901.
Three questions are raised upon the appeal: First, whether the complaint states a cause of action; second, whether the production of the assessment-book in evidence was sufficient prima facie proof of all facts essential to recovery, and third, whether or not a recovery should be had for the full amount of taxes when the solvent credits actually owned were of less value than the amount assessed.
1. It is contended by the appellants that the complaint fails to state a cause of action for the reason that all of the proceedings leading up to the levy of the tax are not alleged in detail; that it is not alleged in the complaint that the property taxed was within the city of Los Angeles, and that no *46
authority is alleged on the part of the city council for the bringing of this action as is required by the provisions of section 64 of the ordinance of the city regulating the levy and collection of taxes. The respondent claims that the complaint is in the form prescribed by statute as the form of complaint in actions for the recovery of taxes (Stats. 1880, p. 136). The constitutionality of this statute, however, is attacked by appellants upon the authority of People v. Central Pacific R.R. Co.,
The ordinance of the city of Los Angeles with reference to the levy and collection of taxes was introduced in evidence in the court below. Section 64 thereof provides for the collection by suit of taxes amounting to $300 or more. This section corresponds in its language to section 3899 of the Political Code, and was evidently intended as an adaptation of that section to the proper city officials. It has been held that the remedy given by the statute of 1880, above mentioned, is independent and distinct from the remedy provided by section 3899 of the Political Code. (Los Angeles v. Ballerino,
2. The sufficiency of the proof in this case is questioned in many particulars, but the respondent relies upon the assessment-roll introduced in evidence as sufficient primafacie proof of its right to recover. It is provided in the statute of 1880, page 136, above referred to, that the assessment-roll "shall be prima facie evidence of the plaintiff's right to recover." A similar provision is contained in the Political Code, section 3789. These provisions, we think, are made applicable by the provision of the charter of the city of Los Angeles above quoted to actions for the recovery of the municipal taxes.
3. The plaintiff sued for taxes upon $101,605, solvent credits. The court found the credits subject to taxation to be $71,756, and no more. The question presented, therefore, is whether the remedy of the taxpayer is by an appeal to the board of equalization for a reduction of the amount of assessment, failing in which he is liable for the full amount, or whether he can raise this question as a *48
defense to an action to recover the tax. The determination of a board of equalization with reference to all matters upon which they are competent as a board to pass, and within their jurisdiction as such board, is final and conclusive, and where a remedy is given by an application to this board, that is ordinarily the only remedy, and a failure to follow that remedy concludes the property holder. In People v. Dunn,
The views hereinbefore expressed render immaterial the question as to the admissibility of the inventory, and other questions raised with reference to the introduction of evidence. They, therefore, need not be considered.
The judgment and order denying a new trial are affirmed.
Allen, J., and Gray, J., concurred.