This action was brought by plaintiff to restrain the defendant, as assessor, from selling certain personal property of the plaintiff for taxes. A general demurrer was interposed to the complaint, upon the ground that the facts stated therein were not sufficient to constitute a causе of action, but there was no special demurrer. The court below sustained the demurrer, refused to allow plaintiff to amend, and gave judgment « for defendant. Plaintiff appeals from the judgment.
The point made by appellant that the part of the revenue laws which provides for the рayment of taxes on personal property by
But we think that the complaint states a cause of action consisting of the alleged fraudulent assessment of appellant’s property at a valuation much greater than its actual value; at least, that the complаint is good in this respect as against a general demurrer. The property assessed consists of certain telegraph lines and instruments situated in Alаmeda county. The complaint avers the actual value of said property to be a certain amount, and that the respondent аssessed said property at greatly excessive and exorbitant rates of value over and above its real value. It is averred that “said valuations were excessive and greatly over and above the valuations placed by said assessor upon similar property.” It is then specifically averred that the Western Union Telegraph Company has telegraphic lines located in said county near the propеrty of the appellant, and of greater value; and it is averred with great detail that where the two lines run through different cities, towns, and placеs in said county, the assessor puts valuations upon the lines of said Western Union Company greatly less than the valuations put upon property оf the appellant. After averring the different and unequal assessments of the said two lines of telegraph, it is further averred in the complaint as fоllows: “And plaintiff further alleges that all and singular of the facts aforesaid were well known to defendant at the time of making the assessment and valuation of the property of the plaintiff as aforesaid; and, notwithstanding the knowledge and information, the defendant did proceed to and did assess and value the property of the plaintiff far beyond its value for taxable purposes, and far in excess of the valuation and assеssment made by him of like property and used for like purposes by the Western Union Telegraph; and the plaintiff alleges that upon the basis of аssessment taken and assumed by defendant for the purpose of assessing the value of the telegraph line of the Western Union Company, it will and does appear that the assessment of the valuation of the property of plaintiff is grossly extravagant and unjust and unreasonable.” And with respect to the character of the valuation of appellant’s property it is averred: “That the said defendant, in making the valuations aforesaid, and in
We think that the averments above referred to state sufficient facts to show that the assessment was fraudulent; and, whether or not the complaint could have been attacked by special demurrer, on the ground that the attempted statement was uncertain or imperfect, we do not think that there is an entire failure to state facts constituting a cause of action. And, if the assessment was thus fraudulent, it is clear that the appellant had a right to restrain the assessоr from proceeding to collect the taxes. In County of Los Angeles v. Ballerino,
Whether or not the averments of the complaint are true is a question not now before us; but, taking them to be true as alleged in the complaint, as we must do in passing upon the demurrer, we think that the complaint sufficiently states a cause of action.
The judgment is reversed and the cause remanded, with directions to the court below to overrule the demurrer.
Temple, J., and Henshaw, J., concurred.