99 Cal. 36 | Cal. | 1893
This action was brought to restrain the defendant, as tax collector of Alameda County, from making a sale for alleged delinquent taxes upon the assessment of a “franchise” for the fiscal year 1889-90. A general demurrer to the complaint was sustained, and judgment rendered for defendant; and plaintiff appeals. No question as to proper remedy is raised, and the case is submitted upon the sole question of the legality of the assessment and tax.
As appears from the complaint, the plaintiff is a corporation
The complaint further shows that the board of supervisors of Alameda County, on March 26, 1888, passed a general ordinance giving to “any person, firm, association, or corporation engaged in the business of supplying fresh water to any city or town, or any city and county in the state” the privilege of laying and maintaining pipes as conduits therefor, in or through any of the roads and highways of said county, subject to certain conditions stated in the ordinance; and afterwards the appellant being desirous of bringing a part of its supply of water for San Francisco across said adjoining county of Alameda, laid a part of its pipe used for that purpose along portions of certain roads in said county. Taxes were assessed and levied in said county upon said pipe and pipe line, and upon other property owned by appellant in said county, and were paid; but in addition to these taxes, said county is endeavoring to collect further taxes upon an assessment of its “franchise.” The only franchise asserted rests upon the pipe for carrying water to San Francisco before mentioned.
While all ordinary real and personal property owned by appellant in Alameda County, and used in connection with its business of supplying San Francisco with water, is to be taxed in Alameda county in common with other property, we do not think ill at its mere ownership of water pipe there, as aforesaid, creates a “franchise” assessable in that county. It had a mere right of way in common with all other persons, entirely unconnected with any privilege granted by the county to take tolls, collect water rates, or enjoy any other special prerogative or advantage. Such a right was certainly not, at common law,
Our conclusion is that, under the circumstances here disclosed, the appellant had no franchise assessable in Alameda County, and the demurrer should have been overruled. The judgment must be reversed, and if respondent shall present no
De Haven, J., did not participate in the foregoing decision.