Fremery v. Austin , 53 Cal. 380 ( 1879 )

By the Court:

The tax in this case was paid on the 25th day of February, 1873, after the delinquent list had been issued to the Tax Collector giving him authority to seize and sell property, and therefore the case does not come within the doctrine of Williams v. Corcoran, 46 Cal. 553.

The tax upon the item of solvent debts, twenty-five thousand dollars, is illegal. The State tax upon the other items is also illegal, upon the grounds stated in Wills v. Austin, ante, p. 152. The tax for City and County purposes upon the last mentioned items is, to some extent, valid. If it be conceded that certain items of the tax levy made by the Board of Supervisors—as, for instance, for the Sinking Fund bonds of 1855, or the Sinking Fund bonds of 1858—are invalid, their invalidity does not effect the levy for other items, such as that for the General Fund or the School Fund. The whole amount levied is apportioned to the several funds mentioned in the order fixing the rate of taxation for City and County purposes—a specified amount being apportioned to each fund—and the tax charged against the property for any one of those funds—as, for instance, one' and eight-hundredths cents upon each one hundred dollars, for the Sinking Fund bonds of 1855—may readily be separated from the entire levy of one dollar upon each one hundred dollars, and would not invalidate the levy for the General Fund, or any other fund.

The protest in this case does not specify any grounds of illegality of the taxes. It was not necessary for the plaintiffs to specify the illegality of the tax upon the solvent debts, or of the State tax upon the other property, for the Tax Collector is chargeable with notice of their illegality; but if they desired to recover back any portion of the tax on the ground that the levy for certain of the funds specified in the order of the Board levying the City and County tax was illegal, they should have specified the grounds of the' alleged illegality of the tax, for there is nothing in the case showing that the Tax Collector was chargeable with notice of the alleged illegality. (Meek v. McClure, 49 Cal. 628.) The plaintiffs for that reason were not entitled to recover back the money paid for City and County taxes on the property other than the solvent debt.

Judgment and order reversed, and cause remanded for a new trial, unless the plaintiffs shall within twenty days remit the amount of the recovery for the City and County taxes paid upon the property other than the solvent debts; but if such amount shall be so remitted, then the judgment and order shall be affirmed as of the day of the submission of the cause.

Mr. Chief Justice Wallace did not express any opinion in this case.