People v. Hastings , 34 Cal. 571 ( 1868 )

By the Court, Sawyer, C. J.:

This is a suit for taxes. The case is clearly within the principle laid down in The People v. San Francisco Savings Union, 31 Cal. 135. There was nothing in the assessment roll, as returned by the Assessor, by which it could be determined, what value the Assessor put upon the land. The testimony of the Assessor, introduced on the trial, to show what he intended to represent by the figures used, was inadmissible. This was so held in the ease cited (lb., 138-9), and we know of no Act since passed authorizing such testimony. The curative Act of April 2d, 1866 (Laws 1865-6, p. 795), is- precisely like the Act in question in The People v. San Francisco Savings Union (Ib., 139). And the similar Act of April 2d, 1866 (Laws 1865-6, p. 831), is no more effective than the others. Eeither aid the assessment. The County Auditor, with the advice and consent of the District Attorney and the President of the Board of Supervisors, undertook to correct the assessment roll, by supplying the dollar marks, and other omissions, in pursuance of the Act of December 23d, 1865. (Laws 1865-6, p. 5.) But this Act is not broad enough to enable those officers to supply the defects and make a valuation appear, where none appeared before. The Act only purports to authorize these officers to correct the roll and supply defects in cases, “where from the said assessment roll, duplicate, or other official document and proceedings connected therewith, it can be ascertained what was intended.” The duplicate can afford no aid, as we pointed out in The People v. San Francisco Savings Union, 31 Cal. 137; for it is made out from the roll returned by the Assessor, after his duties are fully completed, and rests upon the valuation therein made. If no valuation is found in the assessment roll, none can be assumed in the duplicate. "We know of no official document which the Assessor is authorize by the statute to return, other than the assessment roll itself. At all events, no other official document was introduced in evidence, and there is no pretense that the Auditor corrected by any others. Uor does the Auditor testify that there was anything which enabled him to determine what was intended. The most he can say is, that “from the writing on the assessment roll I supposed that was what was intended; there were no ‘$’ marks on the assessment roll; they were all placed there under the advice of the officers above named.” It is clear that there was nothing in the roll by which it “ could be ascertained what was intended,” beyond the mere surmises of the parties. The assessment roll spoke no more intelligibly to the officers named, for the purpose of correcting the roll, than it would to the Court, had it been presented as evidence, for the purpose of showing that a valuation had been made. And we so indicated in the case before cited. (Ib., 136.) The truth is, the statute in question, with respect to the point under consideration, accomplished nothing, when construed according to its own terms. It merely leaves the matter, where it was before, to be determined upon the face of the assessment roll. If the intention cannot be ascertained from what appears, the officers are not authorized to correct: if it can be ascertained, there is no need of correction. This must be so, unless the Legislature intended to permit the officers named to make a valuation where none is made or expressed in intelligible terms by the Assessor. But the latter view cannot be the true one, for it is not so expressed. Besides, the Assessor is the proper constitutional officer to perform this duty. (Ib., 138; People v. Hastings, 29 Cal. 449.) The Legislature cannot make the original valuation, or authorize any officer other than the Assessor to do it. The Legislature may prescribe the mode of making the assessment. Defects in matters of mode, which are originally under legislative control, may be remedied by subsequent legislation of a curative character. But the valuation could not be originally made by the Legislature, or officers, other than the Assessor; and as it could not originally be so made, when not made by the proper officer, it cannot be supplied by other officers under the provisions of curative Acts. The difficulty in this case, is, that the assessment roll, on its face, did not express any intelligible valuation. And it is no more intelligible, after the passage of the two Acts, purporting to legalize the assessment of that year, than before, and the Act authorizing the Auditor, etc., to correct the roll, as we have seen, accomplishes nothing in the particular under consideration. The case of The People v. Holladay, 25 Cal. 300, therefore, has no application.

The proper mode of remedying defects of the kind in question, clearly, is, to authorize the Assessor, who made the assessment himself, in the presence of some designated officers, if this be deemed advisable, to supply omissions of the kind so as to express, in intelligible language, the value which he, in fact, fixed upon the property, the perfected assessment roll to be authenticated in some mode prescribed, as by the certificate of the Assessor, witnessed by the officers in whose presence the roll is thus perfected. This would be completing a duty before imperfectly performed. Or the officers named in the Act of December 23d, 1865, might be authorized to supply the defect in the presence and upon the testimony of the Assessor, showing what he intended by the figures used.

The judgment is reversed and a new trial granted.