14 Cal. 148 | Cal. | 1859
Lead Opinion
On the motion to dismiss the appeal, the following opinion jyas delivered by Terry, C. J.—Baldwin, J. concurring:
In all cases appealed the statute requires that “ the Appellant shall furnish the Court with a copy of the notice of appeal, the judgment roll, and the statement, if there be one.” (Pr. Act. Sec.
Appeal dismissed.
Concurrence Opinion
The judgment roll having been brought up by certiorari, the following opinion was delivered by Baldwin, J.—Field, C. J. and Cope, J. concurring:
This record involves the construction of the revenue laws of the State. The plaintiff sues the defendant for a sum of money paid by the plaintiff as taxes assessed upon certain property of the Oroville Mining Co. a corporation organized under the general laws of the State. The property was a flume,' constructed along the bank of the Feather Elver leading to the claims of the company in the bed of the river. These improvements and appliances seem to be necessary to the working of such claims. They were constructed at great expense, under contract with one Hart, the plaintiff. It is charged in the complaint that they were not to become the property of the company until received by it, and that this was not done until after the assessment was made. Some other facts appear in the case, which will be noticed hereafter.
1. The first point made is, that this work is not taxable under the laws,of this State; the argument being that mining claims are exempted by the Revenue Acts, and that this work is merely appurtenant to, and a part of, the claim. By Section 2 of the Revenue Act of April 27, 1857, (Wood’s Dig. 616,) “ all property of every kind and nature whatever, within this State, shall be subject to taxation, except ” certain descriptions, among which are mining claims. The Constitution provides that taxation shall be equal and uniform throughout the State, and all property in this State shall be taxed in proportion to its value, to be ascertained, etc.
As the Constitution and the 2d Section of the law seem to be explicit in the requirement that all property shall be taxed, the exemption should very clearly appear to have been made in the Act before we could give effect to it. It cannot be disputed that this work is property. It is protected as such by the law, and might be recovered or defended as other property. It has, we presume, an ascertained value. The fact that it is in some
2. The next objection is, that it appears by the record that the Assessor did not call, on or before the first Monday in May, upon the President, etc. for .a list of property of the corporation, but some time in August took a statement from the Secretary, whom he found in the office. We do not understand upon what principle it can be held that a tax rightly assessed in fact, as to value, etc. would be invalidated, because a particular mode of arriving at the right result was not adopted. If the 8th Article, (Wood’s Dig. 636,) is in force, the object of it evidently was to procure a true statement of taxable property of corporations, as required by law. But if such statement be procured, and the assessment of property made, and, especially, if the party taxed have notice of this, it would seem that the end of these directory provisions has been answered. It could not have been supposed by the Legislature that a Tax Assessor should be compelled to find all the persons to be taxed, or on failure to find them that their property should go untaxed. They might happen to he, or manage to keep, out of the way. In this case, the Assessor called at the office of the company. He found there •the late Secretary, who had the hooks, and from the information there obtained and his own knowledge, made the assessment, or procured the materials for it. If there was error in.
3. It is next objected that this assessment was made after the first Monday of May. This provision we are inclined to think is merely directory, upon the general principle that when a time is fixed by statute, within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered directory merely, unless the nature of the act to be performed, or the language of the Legislature shows that designation of the time was intended as a limitation of the power of the officer. (3 Cal. 122.) Moreover, the 11th Sec. of the Act, (Wood’s Dig. 618,) in the second proviso, declares: “ that the Assessor may, at any time prior to the last Saturday in October, specially assess any property which shall not be on the regular list; and if he makes any such special assessment, he shall forthwith deliver a copy thereof to the Tax Collector, and the original to the Auditor, who shall charge the Tax Collector with the amount of taxes due thereon; and all special assessments shall be as valid, and shall have the same force and effect, as the regular assessments.” The object of this provision was to enable the Tax Assessor to assess property which, from various causes, may have been omitted. In this case, it seems that on the second Monday in May, these works were not completed, or brought near to completion. Therefore, as structures, erections, or improvements, they could not well, if at all, have been taxed at the first period mentioned in the Act.
It is argued, that if the assessment could be made after May, then the party taxed might be deprived of a right of appeal to the Board of Equalization, which only sits in August and until September in each year, for the correction of the list. But this argument, if good at all, would only be good when the assessment was made after August, and when it was too late for the
4. The last point is, that these taxes were improperly assessed to the company—that Hart, the Contractor*, was to deliver the work at a subsequent period to the assessment, to the corporation, and, until delivery, it belonged to him, and not to the corporation. But the contract was for the benefit of the coloration, and the work was to be done upon land selected or appropriated by it. The work had been paid for as it progressed, and most of the price bad been paid. The interest, under the circumstances, was in the corporation; and the Contractor would have his lien on the property for the balance due, if any. The fact' that, on the completion, it might possibly have been rejected by the corporation, did not make it the property of the Contractor, and taxable to him; for he could not have sold it,-nor could it have been legally sold for his debts.
The other points do not seem to be well taken.
Judgment reversed and cause remanded for a new trial.
