39 Cal. 65 | Cal. | 1870
delivered the opinion of the Court:
This is an action commenced before a Justice of the Peace to collect a special school tax, alleged to have been levied for the purpose of creating a school house in Aptos School District, in Santa Cruz County. The defendant demurred to the complaint, and at the same time filed his answer thereto, denying that the tax was ever levied; that the property of the defendant was assessed as alleged; that any election was ever held in said district in respect to the levying of said tax; or that the defendant was the owner of the whole of the real estate alleged to have been assessed to him; and averring fraud in the pretended levy and assessment, in this, to wit: In attempting to assess him in a large sum, which he is not liable to pay, upon property which he does not own, and at a valuation exceeding, by $30,000, its true value; and averring, further, that the determination of the action necessarily involved the legality of the alleged tax and assessment, and prayed that the cause be transferred to the District Court for trial. On the filing of the answer the Justice transferred the action to the District Court for trial, and thereupon the
The errors in this record are numerous and patent. The demurrer to the complaint ought to have been sustained. A
The motion for a nonsuit ought, also, to have been sustained, for the reason that the answer contains an explicit denial that any election was ever held to authorize the tax; and there was no attempt to prove that such an election had been held, or that Nichols ever was appointed Assessor, or had any authority whatever to make an assessment. It was distinctly proved on the trial that the defendant was hot the owner of about fifteen hundred acres of the land assessed to him, and that this land was in the actual occupation of other persons, holding the title under recorded deeds. This fact, of itself, established a legal fraud, which vitiated the entire assessment. No citizen would be safe from illegal and onerous exactions, if Assessors are to be permitted thus flagrantly to violate the law by assessing large and valuable estates, not to the owners in the actual and visible possession under recorded titles, but to others who claim no interest in the property and are not in possession.
Judgment reversed, with an order to the District Court to sustain the demurrer to the complaint-.