31 Cal. 412 | Cal. | 1866
This is an action to recover delinquent taxes, brought in pursuance of the Act of May 17th, 1861, entitled “An Act to legalize and provide for the collection of delinquent taxes in the counties of this State.” At the trial the District Attorney at first introduced the delinquent tax lists, but subsequently withdrew them. The testimony was then confined to the issue as to the ability of the Tax Collector “ to find, seize or sell property belonging to the delinquent." The defendant also offered the delinquent list to show that there was no tax at all levied against the defendant, but it was ruled out on objection of the District Attorney. The case was finally submitted without any evidence except as to the inability to find property as before stated; and the Court found for the plaintiff and rendered judgment in accordance with the findings.
The Court and District Attorney were evidently under the impression that no evidence was required, under the statute, to show that a tax had been levied. It is not surprising that embarrassment in construing the statute on this point should arise, for it is provided in section two, that “ the defendant shall not be allowed to set up, ór show, any informality in the levy, or assessment, as a defense, such defendant being allowed only to plead—First, that the taxes had been paid on or before suit; or—Second, that he had not the property mentioned in the complaint at the time of the assessment, and he has never been liable to pay said taxes.” (Laws 1861, p. 471, Sec. 2.) Yet the very next section provides, that “ the delinquent tax lists for said fiscal yéars, duly certified by the proper officers, shall be delivered to the District Attorney, and the said delinquent lists, or the original, or duplicate assessment rolls, or a copy of any entry therein, duly certified, showing unpaid taxes against a person or property, shall be evidence in any
In providing that the “ defendant shall not be allowed to set up or show any informality in the levy or assessment as a defense,” and only allowed to plead the two Matters specified, it may be that the Legislature only intended to say, that these are the only defenses involving new matter which are allowed to be set up, and not that issue should not be taken upon the truth of the averments of the complaint, and when issue is taken on the complaint, that then, no mere informality in the levy should be available as a defense under it. Either .this must have been intended, or it was contemplated that, without any issue upon the allegations of the complaint, the people should be required to produce the delinquent list, or original or duplicate assessment roll,' to show that a tax had been, in fact, assessed against the party or property sued. So far as this case is concerned, it is a matter of no practical consequence which view is taken; for the defendant did, in fact, take issue on the allegations of the complaint. If the views expressed are correct, and we can perceive no other reasonable construction that can be put upon the statute which would give any effect to the second section, it was necessary for the District Attorney to show, by the delinquent list, or the original or duplicate ’ assessment roll, that a tax had been levied. But no evidence whatever was introduced by him on the point, or allowed to be introduced by the defendant. The
Judgment and order denying a new trial reversed, and a new trial granted.