70 P. 308 | Cal. | 1902
Action to recover from defendant certain taxes paid under protest, pursuant to the provisions of section 3819 of the Political Code. The plaintiff had judgment, and the defendant appeals upon the judgment-roll, which contains a bill of exceptions setting out the evidence.
About the middle of February, 1899, plaintiff bought United States interest-bearing bonds of the value of $59,206, and afterwards, about April 21, 1899, sold the same at a profit. In due time the plaintiff made and returned to the assessor what purported to be a statement of all the taxable property owned by it on the first Monday of March, 1899, and which included the sum of $9,374 of "solvent credits." *468 In June, 1899, the city assessor called upon the officers of the bank and was informed of the purchase and sale of said United States bonds, and claiming, as the result of his investigation, that the bonds were purchased for the purpose of evading taxation of the solvent credits used in their purchase, added to the solvent credits returned in its assessment list $59,210, that being the amount used in the purchase of said bonds, thus making the total of the solvent credits $68,850, upon which sum the bank paid the taxes assessed, but as to the tax upon the added sum of $59,210, amounting to $828.90, the payment was made under protest, and this action was brought to recover back said last-named sum.
Appellant's first point is thus stated: "The fundamental question as to whether a purchase of government bonds, made withintent to evade taxation, can be ignored and the moneys used in the purchase assessed under section 3648 of the Political Code, is the one we are most anxious to have determined in this case, as the matter is of considerable importance and is involved in a number of other cases against this same defendant."
The question stated by appellant does not arise in this case. The question whether the plaintiff purchased said United States bonds with intent to evade taxation was made in the pleadings, evidence was given upon that issue, and the court found thereon, "that the plaintiff did not willfully or otherwise conceal, remove, transfer, or misrepresent said property, to wit, the said sum of $59,206, or any property whatever, to evade taxation, and particularly that it did not purchase said bonds of the United States for the purpose of evading taxation upon the money used in their purchase"; and counsel in their brief say that this finding, being based upon conflicting evidence, is not attacked. If the court had found that the bonds were purchased "with intent to evade taxation," and concluded, as matter of law, that the solvent credits used in their purchase were not taxable, appellant's question would have been pertinent. The distinction between the case of Jones v. Seward County,
2. Appellant's second point is, that the facts stated by the officers of the bank to the assessor were sufficient to justify him in concluding that said property should be taxed, and that plaintiff is estopped from making a claim based upon a different state of facts from those made to the assessor. That the assessor acted in good faith need not be questioned; and whether the representations made to him differed from those appearing upon the trial, and, if so, which is true, is necessarily disposed of in the finding hereinbefore quoted, to the effect that the bonds were purchased as an investment, and not to evade taxation, which finding, it is conceded, was made upon conflicting evidence, and therefore not reviewable here.
3. It is contended that the decision of the county board of equalization refusing to grant the petition of respondent to strike out of the assessment as made by the assessor the amount of $59,206, added by him to cover the said investment in United States bonds, is final and conclusive against the plaintiff. This contention is unsound. No appeal from the action of the board is provided for, but the taxpayer may have relief under the provisions of section 3819 of the Political Code, in cases where he claims the assessment, or any part of it, is void, by paying under protest the full amount of the tax as assessed, and within six months thereafter bringing an action to recover back such part of the tax paid as he claims to be void, as is done in this case. If respondent had neglected to apply to the board for relief, it would appear that such neglect would have barred its right to relief in this action. (Henne v. Los Angeles County,
4. It is further contended that the decree should be reversed because it provides that the judgment shall bear interest from its date at the rate of seven per cent per annum.
Section
Section 3819 of the Political Code provides, in substance, that when the taxes have become payable, the owner of *470 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, in writing, and shall specify therein whether the 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, such payment not to be regarded as voluntary, 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.
In Mackey v. San Francisco,
In Savings etc. Society v. San Francisco,
Nor do we question the correctness of Whitaker v. County *471 of Tuolumne,
Under the express provision of the statute he is entitled to the return of the money paid under protest, if the tax was illegal. If the tax was legal the county was entitled to payment, and the taxpayer is not injured. In such case there was neither "use, or forbearance, or detention of money" (Civ. Code, sec.
The provisions of the County Government Act, cited by appellant, relate to interest on county warrants, and have no application to the rate of interest on judgments.
I advise that the judgment appealed from be affirmed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.
Garoutte, J., Van Dyke, J., Harrison, J.