23 Cal. 111 | Cal. | 1863
delivered the opinion of the Court—Norton, J. concurring.
The pleadings in this case are under oath. The complaint is made up almost entirely of averments of matters of evidence merely, and it is difficult to find an issuable fact properly stated in it. The answer follows the complaint, and the findings are subject to the same objection. But as no motion was made to strike out the objectionable averments, this Court can take no action upon it. This state of the pleadings and findings, however, renders it difficult to properly investigate the question presented for adjudication. The necessary averments in a case of this kind are few and simple, and there can be no excuse for stuffing the complaint with matters of evidence instead of the issuable facts. As an attempt to convert the complaint into a bill of discovery, it directly violates the spirit and letter of the four hundred and seventeenth section of the Practice Act. (Bowen v. Aubrey, 22 Cal. 556) If, in a desire to get all the matters of evidence in the complaint, the plaintiff has neglected to state the necessary issuable facts, the Court cannot insert them for him. A pleading is always to be construed most strongly against the party pleading.
It appears that on the twenty-third of November, 1860, the plaintiff was the owner of a large amount of valuable real estate in the City of San Francisco liable to taxation; that this property was assessed to him, in his name (with the exception of a few lots only) by the Assessor of the City and County of San Francisco; that after this assessment had been made, and before the Board of Equalization had closed their labors upon it, certain irregular proceedings were had relating to the exhibition of the assessment roll for public inspection and its equalization, which the plaintiff claims rendered the levy of taxes on his property void, and released him from all legal liability to pay the same; that the Tax Collector, being about to sell his property for the taxes thus assessed and levied, the plaintiff came forward and paid his taxes to the Collector
It is objected by the respondent that as the property thus threatened to be sold was real estate, the payment, though under protest, was in law voluntary, and no action can be maintained to recover it back as it could if it had been a threatened sale of personal property. The right of a party who has paid money not justly due to a Tax Collector, under protest, to recover it back by action, has been sustained by this Court in cases of both real and personal property. (Hayes v. Hogan, 5 Cal. 243; Falkner v. Hunt, 16 Id. 167.) We are not disposed to disturb those decisions upon this point, and this objection is therefore overruled.
It is also objected that this action was not commenced until more than twenty days after the time fixed by law for the payment by the Tax Collector of the taxes collected by him to the County Treasurer; that the presumption of law is that the officer has done his duty and has so paid over the money; and therefore the action should have been against the County Treasurer and not the Tax Collector. It is unnecessary to determine this point, as it is not properly before us. The objection should have been taken by demurrer or answer. If the answer had stated that the defendant had, before the suit, paid the money received from the plaintiff to the County Treasurer, then the question could have been properly raised in this Court. But it is too late to raise it here for the first time.
The principal ground of the plaintiff’s complaint is that the public officers did not keep the assessment roll open for public inspection, as required by the Revenue Law of 1857, under which the assessment was made, and them conduct towards himself and his agent, in them attempts to inspect the roll, is set forth with great minuteness and particularity. It appears, however, that several days before the adjournment of the Board of Equalization, and after he had asked the board for an inspection as a legal right, he was notified that he could personally inspect the roll; but neither he or his agent attended for that purpose, or after that applied for an inspection. It appears, further, that about the time of this notice, or shortly after, the plaintiff was compelled to leave the city for
The fact that he was rendered unable to make such personal inspection, by ill-health, is no answer or excuse. His ill-health was his misfortune; but that misfortune could not in any way invalidate his assessment for taxes, or sustain a charge that such assessment had never been equalized. If it could produce such a result, then every person would be relieved from paying his taxes by proving that during all the time fixed by law he had been unable, on account of sickness or any other misfortune, to personally inspect the assessment roll.
It appears further, that the Board of Equalization met at the time required by law, and acted upon and duly equalized the assessment roll, and the presumption is that the plaintiff’s property was duly equalized with the rest. The plaintiff avers in his complaint, however, “ that the valuation of his property above-described, as made by the Assessor, is grossly unjust, disproportioned, and unequal,” but it is nowhere averred that this inequality was not corrected by the Board of Equalization, and in the absence of such averment the presumption that the board did their duty and duly
It is not sufficient in a pleading to state in general terms that a valuation of property is “ unjust, disproportioned, and unequal,” without stating clearly and distinctly wherein the alleged valuation is “ unjust, disproportioned, and unequal.” For aught that appears, this alleged disproportion and inequality may have consisted in valuing the plaintiff’s property lower in proportion than other property in the city; in which case he would have no just cause of complaint, as it would appear that he had suffered no injury thereby. In such a case, the plaintiff could hardly expect a Court to declare the assessment roll void, or compel the Collector to repay his taxes. He should have averred, and proved if denied, that the valuation of his property was greater than it should have been to make it proportioned with the other property assessed. In the absence of such an averment, the complaint is defective, and the Court cannot cure that defect for the party.
In the case of Cowell v. Doub (12 Cal. 273) this Court, in examining a question relating to the necessity of a tax list being passed upon by the Board of Equalization, say: “ It is no objection that the same act provides for a correction of this list by the Board of Equalization. The case does not show that there was error to he corrected, so far as the appellant’s property is concerned. It is not material whether the notice provided to be given in the fifth section of this act was given regularly or not. The notice was only important as affording an opportunity for correcting errors in the value of the property taxed. But, as said before, the record does not show that there was any error in the value of the property taxed, to the prejudice of the appellant.” So in the present case, “ the record does not show that there was any error in the value of the property taxed, to the prejudice of the appellant,” and it is therefore fully within the rule laid down in the above case.
The plaintiff in his complaint avers that at the date fixed by the law, to wit: the first Monday in August, 1860, the Assessor delivered to the Clerk of the Board of Supervisors the tax list or assessment roll, but avers that the same was incomplete, as it had no alphabetical or other index connected therewith; and it is contended that this is sufficient to vitiate the assessment and release the plaintiff from afi liability to pay -his taxes. (Amendments of 1859, Sec. 3.) Statutes of 1859, 346, among other things, provides that “ it shall be the duty of the Assessor to prepare a tax list or assessment roll of real estate, with an alphabetical index connected therewith.” “Provided, that in the City and County of San Francisco the form of the tax list or assessment roll shall be such as may be directed by the Board of Supervisors.” Whether the Board of Supervisors directed that the list of tax payers should be alphabetically arranged, instead of having this “ alphabetical index,” does not appear. But it is Sec. 7 of the Revenue Law of 1857 (Stat. of 1857, 390) which regulates this matter, and that provides that the Assessor shall, on or before the first Monday in August, deliver the tax list, and the map, books, etc., to the Clerk of the Board of Supervisors. There is nothing in the law of 1859 which requires that this “ alphabetical index ” should be completed by the first Monday in August; and even if it did, a failure to complete it within that time would not have the effect of vitiating the assessment roll. (Hart v. Plum, 14 Cal. 148 ; Cowell v.
The judgment is affirmed.