77 P. 148 | Cal. | 1904
This action was brought to recover from the defendant the sum of sixty-nine dollars, on account of taxes paid by plaintiff under protest for certain cattle. The appeal is from the judgment upon the judgment-roll alone. The facts as set forth in the findings are therefore not in dispute. The court found that the estate of Rosasco, of which plaintiff is the executrix, owned about two thousand acres of land in Tuolumne County and about five hundred and *431 eighty-nine acres of land in Stanislaus County, and upon the first Monday in March, 1901, was the owner of about three hundred and six head of stock cattle. The lands in Tuolumne constitute the "Home Ranch," and for several months prior to the second day of March, 1901, all of the cattle had been pastured upon this ranch. On the second day of March the plaintiff caused two hundred and thirty head of cattle to be driven from the "Home Ranch" in Tuolumne County to the land in Stanislaus County, and two hundred and thirty head of cattle were at said latter ranch at twelve o'clock, noon, on the first Monday of March, 1901. About the first day of April the executrix caused two hundred head, and shortly afterwards the remainder of the cattle, to be driven back to the "Home Ranch" in Tuolumne County, after which they were pastured upon the lands of the estate in that county. The residence of the executrix is, and that of her testate in his lifetime was, the county of Tuolumne, and the court expressly finds: "That said 230 head of stock cattle were by the executrix of said estate driven from the county of Tuolumne, state of California, into the county of Stanislaus, state of California, on the first day of March, 1901, for the purpose of temporarily pasturing the same in said Stanislaus County." The court further finds that the executrix in making her sworn statement on behalf of the estate for the assessor of Tuolumne County omitted to enter the two hundred and thirty head of stock "so driven from the county of Tuolumne aforesaid into the county of Stanislaus aforesaid, for the purpose of temporarily pasturing the same in said Stanislaus County." The assessor of the county of Tuolumne thereafter, without subpœna served upon plaintiff, and without order of the board of supervisors of the county, added to the sworn statement so made and given him by the executrix the two hundred and thirty head of cattle so omitted, and assessed the same against the estate of plaintiff's testator.
The appellant contends under these facts, — 1. That the cattle were improperly assessed in the county of Tuolumne, because their "situation" upon the noon of the first Monday in March was the county of Stanislaus; and 2. That the assessor had no power to add these cattle to the verified list furnished in the statement of the executrix.
1. The assessment of these animal was proper under the *432 act of March 30, 1872, "Concerning the Assessment of Animals." (Stats. 1871-1872, p. 754.) But to this appellant makes reply that that act has been repealed by the provisions of the Political Code. As the act concerns the revenue of the state, it undoubtedly comes within the purview of section 3891 of the Political Code, which provides that its revenue laws are to be construed as though the Political Code had been passed and approved on the last day of the session; but still the effect of this is not to invalidate or destroy the earlier act, unless a repugnancy between the provisions of that act and those of the Political Code touching the revenues of the state is made to appear. Appellant contends that this is so made to appear by virtue of section 3628 of the Political Code as amended in 1880, and in particular that portion of it declaring that "all other taxable property shall be assessed in the county, city, or city and county, town, township, or district in which it is situated." Substantially the same provision is to be found in the constitution of 1879. (Art. XIII, sec. 10.) Upon this language it is argued that the actual location of property upon noon of the first Monday of March of each year absolutely fixes its situs for purposes of taxation. With this contention, however, we cannot agree. It is always recognized that in the assessment of goods in transit, of migrating herds, and the rolling-stock and vessels of transportation companies the permanent situs, as distinguished from the place of temporary sojourn, is of controlling force. It is in recognition of this that the rolling-stock of railroads operating in more than one county in the state is not made the subject of assessment by the local assessors of the various counties, and it is in further recognition of this that the act of 1872 provides that stock "temporarily grazed" in one county shall nevertheless be assessed in and for the county where the owner resides.
But aside from the provisions of this act, and eliminating it entirely from consideration, still the assessment in this case was justified under section 3628 of the Political Code, and the constitutional provision above cited. The language is, that all other taxable property shall be assessed in the county in which it is situated. This, as all of the authorities go to show, has reference to its permanent situation. Thus, if cattle are kept permanently in one county, they are to be assessed in such county, irrespective of the residence of the owner. But if, *433
upon the other hand, cattle are temporarily in a county upon the first Monday of March, at noon, they are to be assessed in the county where they are permanently kept. This is in accord with our own decisions and with those of sister states. Thus, inPeople v. Holladay,
It is concluded upon this proposition, therefore, that grazing stock are assessable, without regard to the residence of the owner, in the county where they are permanently reared and kept, and, as in this case, it is distinctly found that they were permanently kept in the county of Tuolumne, and were in the county of Stanislaus temporarily and for the purpose of temporary pasturage, it follows that they were properly assessed in the former county.
2. In support of the asserted illegality of the act of the assessor, appellant relies upon the case of Weyse v. Crawford,
For the foregoing reasons the judgment appealed from is affirmed.
McFarland, J., Shaw, J., Angellotti, J., Van Dyke, J., Lorigan, J., and Beatty, C.J., concurred.