The plaintiff complains, and alleges:

I. That defendant is indebted to plaintiff in the sum of dollars [naming the amount for county, or city and county] taxes, with five per cent. penalty added thereto for the nonpayment thereof, and interest thereon at the rate of two per cent. per month from the ....... day of ..... 18.., and fifty cents cost of advertising. Plaintiff further avers that defendant is indebted to plaintiff in the further sum of ...dollars, for state taxes, with five per cent. penalty added thereto for the nonpayment thereof, and interest thereon at the rate of two per cent. per month from the ......

day

of ... 18.., and fifty cents costs of advertising, which said taxes were duly assessed and levied upon the [real or personal] property of said defendant, to-wit [describe property as assessed], for the fiscal year 18..

Wherefore plaintiff prays judgment against said defendant for said several sums, with interest and penalty as aforesaid, and costs of suit.

The people of the state of California, by

trict attorney of the county of .....

dis

complain of Doe

9 See Pol. Code, § 3899, as amended by act of March 28, 1895; also, County of Los Angeles v. Ballerino, 99 Cal. 598; San Francisco v. Luning, 73 id. 610.

No. John Doe and Richard Roe, whose real names are to plaintiffs unknown, and who are, therefore, sued by the fictitious names last aforesaid; and also the following-described real estate and improvements, to-wit [describe real estate with same particularity as in action of ejectment], and all and every part and parcel of improvements on said land; and for cause of action say:

there being county assessor of said county, did duly assess and set down upon an assessment-roll all the property, real and personal, in said county subject to taxation; that said assessmentroll was afterwards submitted to the board of equalization of said county, and was by said board duly equalized, as provided by law; that the same Doe No. ..... John Doe and Richard Roe were, at the time the said property was so assessed, and still are owners of the land and improvements above described, and were at the time said assessment was made absent therefrom and from the said county, and were during all the time aforesaid, and still are, liable for and in duty bound to pay the taxes herein specified; that the names of the owners of the said land and improvements, and the names of the defendants last aforesaid were, during all the time aforesaid, and still are, unknown to the said assessor, and unknown to the said plaintiffs, and the above-described lands and improvements were so assessed at the time and place aforesaid, in the manner provided by to unknown owners to-wit:

law,

Said real estate, valued and so assessed at $.

Said improvements, valued and so assessed at $.

II. That each of the persons, defendants herein, have and claim a title to and interest in the said real estate, improvments on real estate, and personal property, and are liable for and in duty bound to pay the taxes herein specified; that upon said property there has been duly levied for the fiscal year A. D. 18..,

A state tax of...

A county tax of.

$..

$.

Amounting in the whole to $..

All of which is due and unpaid; of which amount

dollars was duly assessed and levied against the real estate

aforesaid, and

aforesaid.

dollars against the improvements

Wherefore said plaintiffs pray judgment against said persons, defendants herein, for the sum of

dollars, and separate judgment against said real estate and improvements for the sum of .... dollars, and that said real estate and improvements be sold to satisfy such separate judgment, and that all the interest and claim of each person aforesaid, defendants herein, and all persons claiming any interest in said real estate or improvements be forever barred and foreclosed; and that said taxes, and all costs subsequent to the assessment of said taxes, and all costs and expenses of this suit be paid in gold and silver coin of the United States; and plaintiffs pray for such other judgment as to justice belongs.

District Attorney, County of

[VERIFICATION.]

10

§ 2978. Action will not lie. An action of debt for taxes will not lie when the predicate of the action is a mere assessment upon property. Much depends upon the wording of the act creating the tax. If the act merely imposes a tax upon property, and provides a particular process for enforcement, as a sale of the property, no suit can be brought against the person to collect the tax. If a personal liability be imposed for the tax, and the statute is silent as to the mode of enforcement, then an action would lie for the enforcement of the obligation, for the rule is general that debt lies at common law to enforce a statutory duty or penalty of forfeiture. The provisions of the Constitution and Revenue Laws on the subject of taxation are to be understood as referring to private property and persons only, and not to public property, as to state, counties,

11

10 In California the cases are rare where it is necessary to resort to an action for the collection of taxes, except in cases of removal from the county before the collection of taxes assessed upon personal property. In some states, however, taxes can only be enforced against real estate by action and sale under a judgment; but questions relating to the validity and regularity of the assessment of taxes, and of the proceedings for the enforcement or collection of the same, arise in many ways, and most of the text in this chapter will, therefore, be found pertinent.

11 State of California v. Poulterer, 16 Cal. 514.

towns, or municipal corporations.12 The state can not tax and sue itself;13 nor can it in person or as represented in its local subordinate government, be sued without its own consent.14

66

§ 2979. Assessment. If property is not properly assessed, the assessment and tax levied thereon imposes no legal obligation to pay the taxes so levied, on the defendants or any other person, and creates no lien on the real estate so assessed.15 The words assessment" and "taxation," as used in the Constitution of this state, do not have the same signification.16 When several parcels of land are assessed to the same person, they must be separately valued, and the value of each parcel must be placed under the head "value of land." Where property owned by S. B. Whipple, who had always been known by that name and no other, was assessed to S. M. Whipple, it was held that the assessment was void, because there was no designation of the proper owner.18 So an assessment to the owner by his surname, leaving a blank for his given name, is void, and a deed executed to a purchaser of the land, at a sale for the tax, is void also. Under section 3628, amendment of March 28, 1895, of the Political Code of California, a mistake in the name of the owner of real property does not invalidate such assessrent; but a different rule prevails in regard to assessments of personal property. An assessment of the latter class of property, in which there is a mistake in the name of the owner is void 19

§ 2980. Assessment of, valuation for revenue purposes. Where, in making an assessment on real estate for revenue purposes, a dispute arose between the assessor and owner as to

12 People v. Doe, 36 Cal. 220; citing Mayo v. Ah Loy, 32 id. 477; 91 Am. Dec. 595; Cal. Pol. Code, § 3607, as amended by act of March 28, 1895. Tax on collateral inheritances. See act of March 9. 1895.

13 People v. McCreery, 34 Cal. 433.

14 Sharp v. Contra Costa Co., 34 Cal. 284; People v. Doe, 36 id. 220.

15 People v. Pearis, 37 Cal. 259. 16 Taylor v. Palmer, 31 Cal. 240.

Co., 4 West Coast Rep. 186;

17 People v. Hollister, 47 Cal. 408. 18 People v. Whipple, 47 Cal. 591. 19 Lake Co. v. Sulphur Bank, etc., Crawford v. Schmidt, 47 Cal. 617. As to assessments void on account of the description of the land, see People v. Cone, 48 id. 427; People v. Hyde, id. 431; People v. Hancock, id. 631.

value, and the assessor, taking away the sworn statement of the owner, with a blank left for the value, said he would submit the dispute to the board of equalization, and afterwards filled the blank in the sworn statement with a higher valuation than was admitted by the owner, and the property was taxed at that valuation, and the owner never appeared before the board of equalization, it was held that the assessment, though not entirely regular, was not fraudulent, and that a judgment for the tax, as assessed, should stand.20

23

22

§ 2981. Assessors' duties. It is the duty of assessors to assess all property in their respective districts, counties, etc., which comprehends all property, except that which may be denominated generally public property.21 He must make the valuation of property. And it must be made against the owner when known. The individual, and not the property, pays the tax.2 But if the assessor can not find the person to be taxed, he may nevertheless assess the property.2 24 That the assessment must be made on or before the first Monday in May, is directory.25 The assessment-roll, when completed and certified by the assessor to the board of supervisors, is the only evidence of his acts and intentions.26 There is no particular form required for the certificate. The making of a certified copy by an assessor of an assessment-roll made by another assessor, a previous year, is not an assessment of property.28 Under section 101 of the Revenue Act of Nevada, of 1865,29 assessors may call for sworn statements of the amount and value of the proceeds of mines, but they are not bound by such statements in making their assessments.30

20 State v. Wright, 4 Nev. 251.

27

21 People v. McCreery, 34 Cal. 432; Cal. Pol. Code, § 3628; as amended by act of March 28, 1895; and see Landregan v. Pepin, 86 Cal. 122.

22 People v. S. F. Savings Union, 31 Cal. 132.

23 Kelsey v. Abbott, 13 Cal. 609; cited in Garwood v. Hastings,

38 id. 216; Weyse v. Crawford, 85 id. 196.

24 Hart v. Plain, 14 Cal. 148; Landregan v. Peppin, 86 id. 122. 25 Id.

26 People v. Savings Union, 31 Cal. 132.

27 State v. Western Un. Tel. Co., 4 Nev. 338.

28 People v. Hastings, 29 Cal. 449.

29 Statutes of 1865, p. 307.

30 State v. Kruttschnitt, 4 Nev. 178; see generally, Cal. Pol. Code, §§ 3627-3663.