127 P. 834 | Cal. | 1912
This is an action brought under sections 3819 and 3804 of the Political Code to recover from defendant $1,446.42 taxes paid by property owners under protest, for which verified claims were filed with the board of supervisors seeking a refund. The taxes so paid were levied by the supervisors in the general levy of the city and county of San Francisco for municipal purposes for the fiscal year 1904-05. They were levied for the purpose of raising money wherewith to pay interest on and to provide a redemption fund for certain municipal bonds. The issuance of these bonds had been voted upon favorably at an election called for *103
that purpose, and upon January 25, 1904, an ordinance was passed ordering their issue. In Law v. City and County of San Francisco,
The municipality, respondent herein, first contends that the taxes were voluntarily paid and therefore not the subject of an action for recovery. (Dear v. Varnum,
Respondent's position is thus stated from its brief:
"First. That the fact that a debt was not an existing debt at the time of the tax levy would not constitute an objection to the tax levy itself, since the entire taxation scheme of the city and county of San Francisco is based upon an estimation of debts to be incurred, but not actually incurred at the time of the tax levy.
"Second. That the fact that the bonds might never be sold would not be a proper objection to the tax, because practically the greater part of every tax levy under the charter *104 of the city and county of San Francisco is designed to meet contemplated expenses which may never be incurred.
"Third. That neither the constitution nor the charter prohibit a tax such as the tax in this case.
"Fourth. That to hold in favor of plaintiff would be to establish a doctrine that would seriously impede the sale of municipal bonds."
The first three propositions may be considered together. Under the first proposition it is pointed out that a tax levy under the charter of the city and county of San Francisco is to a very large extent anticipatory. The auditor transmits to the supervisors "an estimate of the probable expenditures of the city and county government for the next ensuing year." (Charter of San Francisco, part 3, chap. 1, sec. 3.) Other provisions are pointed out, all showing that the tax levy to meet the running and operating expenses of the city and county of San Francisco is not to meet existing obligations, but is based upon estimates of future expenses and the levy is to meet such expenses. Respondent's position in this regard is unquestionably true. True it is that neither the constitution of the state nor the charter in express terms prohibits such a tax as was here levied. It does not follow, however, as declared in respondent's second proposition that because the greater part of the tax levy under the charter of the city and county of San Francisco is designed to meet contemplated future expenses which may never be incurred, therefore the tax levy for bonds unsold and uncontracted for is valid. While there is no express inhibition in the constitution nor in the charter against the levying of a tax under the indicated circumstances, certain general principles of law forbid it. While it is true that under charter authorization the costs of the municipal government are estimated in advance and taxes levied to meet them, and while it is true in a limited sense that the obligation for which a particular tax is levied may not be incurred, as that the taxes collected for street assessment may be greater than the amount actually expended; even when this results, no injury follows to the taxpayer. The funds are carried over and serve to reduce the general tax levy of the succeeding year. When it comes, however, to the funded indebtedness of the city the law makes special provision in many forms for the payment of *105
the principal and interest of such obligations. From the beginning to the end, elsewhere, as well as in the charter provisions, such a bonded indebtedness or obligation does not exist and is not recognized as a funded obligation unless the bonds themselves have actually been sold or their sale contracted for. "The debt represented by any bond would not exist or be created until the bond is issued by the company, that is, delivered to a third person for a valuable consideration."(Merced R. E. Co. v. Curry,
"Any attempt on the part of the state, or of the county, as one of the subdivisions of the state, to take the property of an individual for public purposes by way of taxation, must find anexpress statutory warrant, and all laws having this object are to be construed strictly in favor of the individual as against the state."
To the argument of inconvenience advanced by respondent under the fourth head, sufficient answer may be made first, by saying that an inconvenience to the city does not justify the despoiling of its taxpayers, and, second, by reference to Johnson v.Williams,
For the foregoing reasons the judgment is reversed and the cause remanded.
Shaw, J., Angellotti, J., Lorigan, J., and Melvin, J., concurred.
*107Rehearing denied.