High v. Shoemaker
22 Cal. 363
Cal.
1863
Check Treatment

Lead Opinion

Norton, J. delivered the opinion of the Court—Crocker, J. concurring.

This is an action of ejectment, in which the plaintiff claims title under a tax sale. A demurrer to the complaint was sustained and a judgment rendered in favor of the defendant, from which the plaintiff has taken this appeal.

The complaint sets forth a levy of the tax and subsequent proceedings for a sale of the premises under the Revenue Act of 1857, and the first objection taken is, that the law is void because certain lands, such as church and school lots, and the lands of the United States, are exempted from taxation, contrary to the provisions of Sec. 13 of Art. 11 of the Constitution of this State, by the terms of which it is required “ that taxation shall be equal and uniform throughout the State,” and that “ all property in this State shall be taxed in proportion to its value, to be ascertained as directed by law.”

The meaning of this section of the Constitution was considered by this Court in the case of the People v. Coleman (4 Cal. 46), in which the Court say: “ If the position contended for by the respondent be correct, then all property must be taxed, and the Legislature would have no authority to exempt any species of property from taxation; yet the power of the Legislature to exempt the property of religious and eleemosynary corporations has not been doubted.” And: “ From these considerations we are of opinion that the words ‘ equal ’ and ‘ uniform ’ apply only to a direct tax on property; that the Legislature may select or exempt such property as in its discretion it may think proper,” etc. Although that case arose upon a law imposing a tax which was considered a tax upon an avocation or business, and not directly upon property, yet it was necessary for its determination to consider the section in question; and if the remarks above quoted may not be deemed an adjudication upon the direct question now under consideration, we think they are, for the reasons given in that case, a correct interpretation of the Constitution, and that the omission to tax a portion of the lands in the State does not render the Revenue Act of 1857 void.

It is further objected that the five per cent, charged by the col*370lector, in pursuance of Sec. 13 of the Revenue Act, is a penalty, and cannot be collected summarily, but only, if at all, by due process of law. It, however, is not imposed in terms as a penalty or punishment. The tax payer is allowed until the third Monday of October to pay his taxes, and if at the close of that day he is in default, then further proceedings are to be taken to enforce the judgment. Among other things, the delinquent is charged five per cent, upon the amount of bis tax. This is not an equivalent for the tax, or a substitute for it, or a sum fixed, by the payment of which an atonement is made for the default to pay the tax, but is one of the means prescribed for .obtaining the tax itself by presenting an inducement to make voluntary payment on or before the day fixed for that purpose. We cannot say that it was not competent for the Legislature to authorize this per centage to be collected in the same way as the fees of the officers made necessary in other proceedings to enforce the payment of taxes. It might be admitted that the sale of property for the satisfaction of taxes, together with the expenses of the proceedings, summarily by an officer, without the previous judgment of a Court, is apparently inconsistent with the provision of our Constitution that a man shall not be deprived of his property without due process of law, and yet the Court not be authorized to declare the law void, because universal practice had established, at the time our Constitution was adopted, that this provision in Constitutions was not understood as applicable to proceedings by the State to obtain from citizens' their proper contributions to the expenses of administering the Government. (See Blackwell on Tax Titles, cases cited, 40, 41.)

It is further objected that the description of the land sold fails to comply with the requirement of Sec. 4 of the Revenue Act, inasmuch as it does not give the “ metes and bounds,” or state the “ locality.” From the confused mode in which this portion of Sec. 4 is expressed, it is not possible to say that the requirements as to metes and bounds apply to lands lying outside of a city or incorporated town. If they do, then the alternative also applies, that they may be described “ otherwise.” The locality of the premises was sufficiently given, by stating that it was the tract known by a particular name, which is stated, and situated on a particular road, *371which is named, in a particular township of Amador County, unless indeed it were necessary to give its precise “ metes and bounds,” which, as we have seen, was not required.

The demurrer should have been overruled, and the judgment is therefore reversed, and the cause remanded for further proceedings.





Rehearing

On petition for rehearing, Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring.

The petition for rehearing in this case insists that by a change in the punctuation it may be made apparent that Sec. 4 of the Revenue Act of 1857, requires that in listing lands situated outside of cities or incorporated towns the metes and bounds must be given, and that it was so decided in the case of Lachman v. Clark (14 Cal. 133).

So long as the words of this section stand in their present order and coupled by the conjunction “ or,” no change in the punctuation can make it clear that the words “ giving the metes and bounds,” apply to country lands and not to city lands. Considering the whole sentence, it seems more probable that the intention was to direct country lands to be listed without saying in what precise manner, further than “ giving ” the quantity of acres and the locality and township where situated, and as to city lands not requiring the quantity, but “ giving ” metes and bounds, or other sufficient description. The probability of this being the intended meaning of the section is strongly corroborated by the fact, that this is substantially the provision upon this subject of every Revenue Act passed previous to the Act of 1857, and is very nearly the language of the Act of 1854, which was the last law previous to the one under considerar tion. (Act of 1854, 103, Sec. 73.) In any way of viewing it, however, the sentence is obscure and the meaning doubtful.

Under these circumstances, if a construction of the sentence had been distinctly given by this Court, and had become a guide for assessors, it should be followed. But no such construction has been given. In two cases the mode of listing country lands under the Act of 1857, has been referred to in general terms, but without a decision being made specially as to the exact application of the *372words “metes and bounds.” In Patten v. Green (13 Cal. 325), a tract of land lying outside the town of Petaluma was assessed under the Act of 1857, without giving any “ metes and bounds,” but giving the quantity of acres and the name of the ranch. The Court say that it was properly taxed by this description, within the case of Palmer v. Boling (8 Cal. 388). In this case of Palmer v. Boling, no metes and bounds were given, and the Court say: “ To require a particular description of rural lands would be imposing an unnecessary burden on the officer.” This assessment was under the law of 1854, which does not speak of “ metes and bounds,” and the case is therefore only applicable by being adopted in the case of Patten v. Green, which was an assessment under the law of 1857. The law of 1854 is, however, the same as we have supposed to be the meaning of the law of 1857, and the case of Patten v. Green in this way becomes an indirect construction of the law of 1857. In the case of Lachman v. Clark (14 Cal. 131), the Court say that Sec. 4 of the Act of 1857, requires lands outside of a city or incorporated town to be described by giving the metes and bounds, and the number of acres and the locality and township where situated. The exact application of the term “ metes and bounds ” was, however, not discussed by the counsel who sought to sustain that assessment, he resting his case on other grounds; nor was it specially considered by the Court. The assessment did not give the quantity of acres, nor the township where situated, and was for that reason fatally defective by the undisputed provisions of Sec. 4. That under these circumstances the Court coupled “ metes and bounds ” in a general remark, embracing these undisputed requirements, is not, we think, to be held to be a distinct adjudication on this separate question, certainly not more than the general remarks of a contrary sense, employed in the case of Patten v. Green. ¡Neither case, we think, can be held to be a distinct construction of this section in this precise particular.

Of the many tax cases that have come before us, we do not remember one in which rural lands have been described by metes and bounds; and considering that such a description was not required by any tax law prior to 1857, and considering, to say the least, the very dubious meaning of the law of 1857, and which may *373reasonably be considered the same in effect as the law of 1854, and considering the influence of the decision in the case of Patten v. Green, we have no doubt assessors have generally interpreted the law as we do, and that very few if any assessments of rural lands made since 1857, any more than those made previously, have given the metes and bounds. A decision now that would overthrow all these assessments, should have plainer grounds to rest upon than the possible construction of so obscure a provision as that of Sec. 4 upon this subject, or the remark in the case of Lachman v. Clark, made under the circumstances we have mentioned.

Rehearing denied.