76 P. 481 | Cal. | 1904
Action to recover certain taxes assessed by defendant county for road purposes on property situated within the city of Oakland. Defendant interposed a general demurrer to the complaint, which was sustained. Plaintiff failed to amend its complaint, and judgment passed for defendant, from which this appeal was taken.
It appears from the complaint that prior to the fiscal year 1897-1898 the boundaries of said city were altered so as to include certain territory formerly known as road districts of "Temescal" and "Bay"; that certain persons, plaintiff's *661 assignors, were during the whole of said fiscal year the owners of certain property situated in said territory so annexed to said city. It is alleged "that a tax for road purposes for said fiscal year of 1897-1898 was, by said defendant county, erroneously assessed upon said property of plaintiff's assignors, then, as aforesaid, forming a part of said city of Oakland, and said tax was, by said defendant county, erroneously collected." The verified claim of plaintiff was presented to the board of supervisors for allowance, and payment was refused. There is no allegation that the payment of the taxes was made under protest. Defendant contends, in support of the judgment, — 1. That the payment having been voluntarily made, presumably with knowledge of the law that the tax was illegal, no recovery can be had; and 2. That there can be no recovery, because plaintiff did not proceed as directed by section 3819 of the Political Code.
1. The action is brought under section 3804 of the Political Code, which reads in part as follows: "Any taxes, penalties or costs thereon paid more than once, or erroneously or illegally collected, or any taxes paid upon an assessment in excess of the actual cash value of the property so assessed, by reason of a clerical error of the assessor, as to the excess in such cases, or any tax paid upon an erroneous assessment of improvements on real estate not in fact in existence when said tax became a lien, may, by order of the board of supervisors, be refunded by the county treasurer." The statute provides a period of limitation within which the verified claim of the taxpayer must be filed with the supervisors, but the demurrer raises no question on this point.
We think the cases of Hayes v. County of Los Angeles,
Answering the question whether the tax thus illegally collected should be retained by the county authorities, this court said: "It surely would be in violation of honesty and fair dealing for them to do so. Is it in violation of law for them to refund it? We think not. The board were authorized to order the money refunded under section 3804 of the Political Code" (quoting it). "This being a remedial statute, it should be liberally construed so as to carry out its intent and object." The court quotes approvingly from Matter of Adams v. Monroe County Supervisors,
If the legislature had intended to restrict the power of the board to refund to cases where the taxes had been involuntarily paid or paid under protest, it would have so said, as *664 it did in the cases brought under section 3819, where relief is given by action in the courts.
Some remarks in the decisions of the court may at first glance appear to be in conflict with the conclusion above reached. InYounger v. Board of Supervisors,
2. It is urged that plaintiff cannot recover because it did not proceed under section 3819 of the Political Code. The section gives an action against the county where the owner *665
of any property assessed therein claims that the assessment is void in whole or in part, and the owner pays the tax under protest, in writing stating the grounds of his claim. "Such owner may at any time within six months after such payment bring an action against the county." Several cases have been brought under this section that found their way here, but the court has not heretofore held, nor been asked to hold, that the remedy there afforded is exclusive, as is now contended. Pacific Coast Co. v.Wells,
We advise that the judgment be reversed, with direction to overrule the demurrer.
Gray, C., and Haynes, C., concurred. *666
For the reasons given in the foregoing opinion the judgment is reversed, with direction to overrule the demurrer.
McFarland, J., Henshaw, J., Lorigan, J.