§ 3059. Time- assessment ended. A complaint in an action to recover unpaid taxes is sufficient, if it avers "that certain sums are due for certain taxes levied in the year 1858 upon certain real estate assessed in the year 1858," without stating that these taxes were levied under an assessment ending on the 1st day of March, 1858.187 § 3060. Trying legality of a tax. A court of equity will entertain a bill against a municipal corporation, for the purpose of trying the legality of a tax imposed by the corporation.188 § 3061. Unauthorized alterations in assessment-roll. An assessor has no power to make an alteration in the assessment-roll after it has passed out of his hands. The roll in its original state is the proper assessment-roll, and when it remained legible, as originally made, an unauthorized alteration does not avoid it, and that it is competent evidence on the alteration being accounted for.189 § 3062. United States land. Lands belonging to the United States are not liable to taxation by the state, under the Revenue Laws of California, or the act of Congress admitting the state of California into the Union.190 § 3063. Validity of tax. A tax, in order to be valid, must rest upon an assessment made in the mode prescribed by law, by the duly elected assessor.191 And when the owner is known the assessment must be made against him.192 Assessment must be certain as to person, property, and amount.19 193 § 3064. Validity of tax of personal property. Personal property may be assessed in bulk, without statement of character of property.194 Assessment of personal property of a former member of the firm, made to the firm after its dissolution, is void. 195 Personal property may be assessed to a nonresident.196 Assessing personal property to wrong owner does not invalidate the 187 People v. Todd, 23 Cal. 181. 188 Worth v. Fayetteville, 1 Wins. (N. C.) 70. 189 State v. Manhattan Company, 4 Nev. 318. 190 People v. Morrison, 22 Cal. 73. 191 People v. Hastings, 29 Cal. 449. 192 Kelsey v. Abbott, 13 Cal. 609. 193 Id. 194 People v. Sneath, 28 Cal. 612. 195 Id. 196 People v. Home Insurance Co., 29 Cal. 533. Vol. II-61 assessment. 197 A mortgage on such can not be assessed, but the assessment should be made of the debt which the mortgage was given to secure, 198 § 3065. Value. An assessment of town lots, which does not give their value either in gross or in detail, is radically defective.199 An assessment is void where there is no valuation.200 § 3066. Verification. The acts in relation to the collection of delinquent taxes which compel the defendant to verify his answer, do not change the rule in the forty-sixth section of the Practice Act,201 that where a complaint is not verified, a general denial of its allegations in the answer will put in issue all the material allegations.202 § 3067. For nonpayment of license. Form No. 673. [STATE AND COUNTY.] The People of the State of Cali fornia against [COURT.] Defendant. The people of the state of California, plaintiff in this cause, complain against . defendant herein, and for cause of complaint show and charge, that on the 18.., at the city of .... .. day of in the said county, the said defendant did attempt to carry on, and did then and there carry on the business of [designate business], and the said defendant was then and there required by the provisions of an act entitled "An act to provide revenue for the support of the government of this state," approved on the ........ .. day of 18.., to take out a license thereto, in pursuance 197 People v. Home Insurance Co., 29 Cal. 533. 198 People v. Eastman, 25 Cal. 601. 199 Hurlbutt v. Butenop, 27 Cal. 50. 200 People v. San Francisco Savings Union, 31 Cal. 132; cited in Garwood v. Hastings, 38 id. 216. An allegation that property was assessed "in an amount greatly in excess of that authorized by law," is insufficient to raise any issue as to the true cash value of the property, and to raise such issue such value should be alleged. State v. Sadler, 21 Nev. 13. 201 Cal. Code Civ. Pro., § 437. of the said act. And the said defendant then and there so attempted to carry on and so carried on said business without such license and without any license thereto. And the said defendant did then and there unlawfully fail, neglect, and refuse to take out the license in such case by said act provided, and still neglects and refuses so to do. And by reason of the premises the sum of dollars then and there became and was due from the said defendant, and payable by him to the collector of taxes of the said county [or license collector, as the case may be], and the said defendant, although often requested to do so, has not paid the said sum of money or any part thereof; but has hitherto wholly neglected and refused, and still refuses to pay the same. ..... Wherefore said plaintiff asks judgment against said defendant, for said sum of .... ... dollars, together with .. dollars damages, as by said act provided, and the costs of this suit.203 District Attorney. § 3067a. Complaint in action to collect license tax. The complaint in an action brought by the district attorney to collect a license tax, under an ordinance which provides that the tax collector may direct such suits to be brought, need not allege that the action was brought under an authorization by the tax collector. The district attorney, being an attorney-at-law, is presumed to be authorized by the proper party to institute the actions he may bring, in the absence of evidence to the contrary,204 § 3067b. Complaint to set aside tax sale. A complaint in an action to set aside a tax sale of lands sold for a certain sum, a portion of which is claimed to be excessive as embracing an item of personal tax, is not demurrable as ambiguous or uncertain in failing to state the excessive portion where the precise amount can be ascertained by computation.205 203 A license fee or charge for the transaction of any business is a tax within the meaning of the term "tax" as employed in section 6 of article 6 of the Constitution, and in section 838 of the California Code of Civil Procedure. City of Santa Barbara v. Stearns, 51 Cal. 494. 204 San Luis Obispo v. Hendricks, 71 Cal. 242. 205 Ward v. Commissioners, 12 Mont. 23. A complaint § 3067c. Complaint in action against assessor. against a county assessor, and the sureties upon his official bond, alleging that the assessor willfully and against law assessed a tract of land belonging to the plaintiff at an unlawful and false valuation specified, which was largely in excess of a sum alleged to be its highest actual value for agricultural purposes, to the plaintiff's damage in a specified sum, does not state a cause of action. The averment of the value of the property is insufficient, as its value for all purposes must be considered by the assessor in ascertaining the amount at which it would be taken in payment of a just debt due from a solvent debtor, which constitutes its full cash value; and the averment that the assessment was willful and against law, without an averment that he acted maliciously, and with intent to wrong and injure the owner of the property, does not negative the presumption that he simply erred in judgment, for which he is not liable to an action, the only remedy for such error being by application to the board of equalization.206 § 3067d. Complaint recovery of illegal assessment. In an action to recover an assessment of an irrigation district paid under duress, an averment in the complaint that the assessment was levied without calling a special election or submitting the question to the qualified electors of the district, and that no election was held authorizing the levy, should not be stricken from the complaint, and the plaintiff should be allowed to prove the averment.207 206 Ballerino v. Mason, 83 Cal. 447. 207 Tregea v. Owens, 94 Cal. 317. PART FOURTH. PLEADINGS OF DEFENDANT. CHAPTER I. DEMURRERS. § 3068. Demurrers in general. A demurrer is an issue upon matter of law. Its office is to test the sufficiency of a pleading. It admits, for the purposes of demurrer, such facts as are issuable and well pleaded, but not immaterial allegations, or averments or mere conclusions of law. It is not the office of a demurrer to set out facts. All the facts involved in a demurrer are those alleged in the pleading demurred to, and the demurrer merely raises a question of law as to the sufficiency of those facts to constitute a cause of action or defense. By the old common-law writers it was claimed not to be a plea, because it neither alleged nor denied any fact. But this is not now the rule. Yet, whether, technically speaking, it is a plea or not, in many instances it is the most important paper in the action, and when properly interposed, it may settle all the issues of the case, by determining, at the threshold of the action, questions which otherwise would only be disposed of on the hearing of the facts. The question whether the plaintiff in his complaint 1 Branham v. Mayor of San Jose, 24 Cal. 602; Masterson v. Townshend, 123 N. Y. 458; Hopper v. Town of Covington, 118 U. S. 148. 2 Cutler v. Wright, 22 N. Y. 472; Groesbeeck v. Dunscomb, 41 How. 302; Hall v. Bartlett, 9 Barb. 297: Kinnier v. Kinnier, 45 N. Y. 535; 6 Am. Rep. 132; Buffalo Catholic Institute v. Bitter, 87 N. Y. 250; Bonnell v. Griswold, 68 id. 294. 3 Brennan v. Ford, 46 Cal. 12; Rice v. Rice, 13 Oreg. 337; Johnson v. Burnside, 3 S. Dak. 230. 4 Gould's Pl. 35; 2 Chit. Pl. 678; 3 id. 1246. 5 Oliphant v. Whitney, 34 Cal. 25; Furniss v. Ellis, 2 Brock. Marsh. 14; New Jersey v. New York, 6 Pet. 323. Most if not all the codes speak of the demurrer as a pleading. See Cal. Code Civ. Pro., § 422; Cashman v. Reynolds, 123 N. Y. 138. |
