Moore v. Patch

12 Cal. 265 | Cal. | 1859

Baldwin, J.,

delivered the opinion of the Court—Field, J., concurring.

The plaintiff below enjoined the Collector from proceeding to sell his lot for taxes. The ground is that they are illegal. The plaintiff charges that the delinquent list, published by defendant in the fall of 1857, and under the Revenue Act of that year, did not contain the name and property of plaintiff, as required by the fourteenth and fifteenth sections of that Act. An Act was passed by the Legislature in 1858, (Session Acts, p. 4). This Act confirms the roll in the hands of the Collector, and declares it legal and binding, as a valid Tax List, and in all respects sufficient in law, as the duplicate assessment of said county and city, for the fiscal year ending June 30th, 1858, and the same shall be a sufficient warrant in the hands of the Tax Collector, to authorize and empower him to collect the taxes therein assessed.

It is argued for the respondent that this Act, supposing it to cover the case, is unconstitutional. This idea seems to be founded on the supposition that the steps made necessary by the Act of 1857, are conditions precedent to vesting of the tax, and that no obligation to pay the taxes existed, except by force of these proceedings. This, however, is a mistake. The tax is a debt due from the property-holder to the State, and these proceedings by publication and the like, are merely modes adopted by the Legislature to collect them. If property be omitted from the list, this does not discharge the property-holder, but the defect may be remedied by the Legislature. The irregularities, of whatever character, occurring under the Act of 1857, were intended to be cured by the Act of 1858, and we think, if the provisions of the latter Act have been fully complied with, the property might be fully subjected to the payment of the tax.

The objection that the Act is not uniform in its operation, is without force. It is not a general law, but a special Act, made for a given state of facts. There is no necessity for it, except for the particular occasion, and to remedy the particular evil at which it is aimed, and we think it effectual for that purpose.

The more serious objection, however, is urged, that the delinquent tax list required to be published by the Act of 1857, was never published, and that this provision is not repealed by the Act of 1858. The third section of the Act of 1858, is as follows : “ The Tax Collector shall, as soon as may be after receiving back the duplicate assessment list, as provided in the last section, give notice by advertisement, to be published by five insertions in two newspapers published in said city and county, that he will proceed to collect the delinquent taxes due on said list; and at the expiration of ten days after the publication of said advertisement, he shall proceed to sell the real estate on which the taxes remain delinquent, in the manner provided in an Act entitled ‘An Act to provide Revenue for the support of the Government of this State,’ approved April twenty-ninth, eighteen hundred and fifty-seven ; and he shall, in like manner, proceed to collect any taxes which may remain due upon personal property.”

The fifteenth section of the Act of 1857, (p. 329 of the Session Acts) provides that on or before the fourth Monday in November, the Tax Collector shall cause the delinquent list to be published, giving, in said publication, the name of the owner (when known) of all real estate and the improvements, together with a condensed description of the property, that it may be easily known, and also a similar condensed description of any real estate or improvements assessed to unknown owners, and also the name of every party delinquent for any tax on personal property, and also opposite each name or description give the amount of taxes, including the costs, etc. If a newspaper be published in the county, the publication by this section required shall be made by one insertion one time per week, for three successive weeks, in some county newspaper. Said publication shall designate the time and place for commencing the sale, which time shall not be less than twenty-one days, nor more than twenty-eight days, from the time of the first publication.

Taking the third section of the Act of 1858 together with the first, it is apparent that the intention of the Legislature was to substitute the assessment roll for the tax list required by the Act of 1857 ; or rather, to give full and complete effect to that list, as a valid warrant for the collection of the taxes therein mentioned; and then to provide, as is done in section three of that Act, for their collection. It was intended to be a plenary and complete plan for the taxes on that list. This is evident, because, after saying that the list shall be a sufficient warrant for collecting those taxes, it provides for a specific mode of such collection, which was by advertising ten days. It could not have been thought necessary to advertise the list, as in section fifteen of the Act of 1857, and, in addition, to make this latter advertisement. Besides, it would be impossible to follow the directions of the Act of 1857, for the time prescribed had long before elapsed. It has been seen that after the advertisement of the delinquent list directed to be made by the Act of 1857, a sale was to be had ; here a sale at a different time is directed to be made by the third section of the Act of 1858. It would result, if we give the construction of respondent to these statutes, that no sale could be had under the Act of 1858 ; but, indeed, the Act would be wholly inoperative. The provisions of the statute of 1858, therefore, are in direct conflict with the sections fourteen and fifteen of the Act of 1857, and the former must prevail. The whole question amounts to this: Taxes were due from sundry persons for the year 1857 ; these taxes were not paid. A list of these taxes is made by the proper officers; the Legislature has recognized and validated this list, and a special provision is made for their collection. This provision is not a general law, but a special remedial Act; not made to create any new obligation, but to enforce the original debt. The Government had the power to give this remedy. It was intended to be a complete remedy for the given case.

We do not mean to say, that if these taxes were not due the Legislature could create any obligation for the payment. But being due, and not collected at the proper time, they may be collected by such means as the Legislature has prescribed. The respondent suggests that if this construction be right, that the twenty-fourth section of the Act of 1857 must fall, which requires the Tax Collector, in order to preserve testimony, to make oath that he made the publication required by that Act. But if the publication, as therein required, is dispensed with, so is the proof of the fact. The accessory falls with the principal.

A general impression seems to prevail that no tax sale can be made which will be effectual to pass title.- Without expressing any opinion on the facts of any given case, it may not be out of place to suggest that consequences of a serious character may result to owners of property, by a too confident reliance upon the idea that taxes may be left unpaid with impunity.

The judgment of the Court below is reversed, and cause remanded.