Opinion
Rehearing Granted by Supreme Court Dec. 20, 1928.
On petition for rehearing. Petition denied.
For former opinion, see 271 P. 518.
COUNSEL
Everett W. Mattoon, Co. Counsel, Roy W. Dowds, Flood Control Counsel, and W. Sumner Holbrook, Jr., Deputy Co. Counsel, all of Los Angeles, for petitioner.
R. C. McAllaster, City Atty., and Harold P. Huls, Deputy City Atty., both of Pasadena, for respondents and intervener.
Jess E. Stephens, City Atty., and Alan Patten, Deputy City Atty., both of Los Angeles, W. Turney Fox, City Atty., of Glendale, Chester L. Coffin, City Atty., of Santa Monica, and Nowland M. Reid, City Atty., and C. A. Windham, Chief Deputy City Atty., both of Long Beach, amici curiæ .
OPINION
PER CURIAM
In its petition for a rehearing herein, petitioner district contends that this court erred in holding that the district is bound in its application for a writ of prohibition by admissions of the truth of the allegations contained in the complaint of the city of Pasadena, intervener herein, filed in the city’s action in the superior court for an injunction and to have the assessments under consideration declared void. Petitioner also contends that this court committed further error in holding that the rules of law laid down in the case of Crocker v. Scott, 149 Cal. 575, 87 P. 102, do not apply in this proceeding.
The district embodied in and made parts of its petition herein for a writ of prohibition a copy of the complaint of the city and a copy of the demurrer of the district to the complaint, which demurrer has not yet been passed upon by the superior court. By making the undenied complaint a part of its petition for the writ, for the purposes of its petition for the writ, the district adopted the allegations of the complaint as true. The demurrer raised the question whether the complaint states a cause of action. While the demurrer remains undisposed of, the admissions thereby made that the matters well pleaded in the complaint are true continue to bind the district. When a party to an action, as in this proceeding, stands upon a pleading and his demurrer thereto, so long as he stands thereon, in legal effect, for the purposes of the action, he admits and continues to admit the truth of the matters well pleaded in the pleading. Estate of Chase, 169 Cal. 625, 627, 147 P. 461.
Further elaborating upon our holding that the rules of law laid down in the case of Crocker v. Scott, supra, do not apply in this case, attention is called to the fact that the complaint in that case affirmatively showed that the taxing authorities had jurisdiction to levy the taxes complained of and proceeded regularly in making the assessment and levy, and that injunction should not have issued, while in this proceeding it appears that the assessing authorities failed to acquire jurisdiction to assess. Under the latter circumstance the law does not afford the city adequate redress.
Judge Cooley announces in his work on taxation (3 Cooley, Taxation, § 2, pp. 1414, 1447, 1453) the following:
"Cases of fraud, accident or mistake, cases of cloud upon the title to one’s property, and cases where one is threatened with irremediable mischief, may demand other remedies than those the common law can give, and these, in proper cases, may be afforded in courts of equity."
Our Supreme Court said in Las Animas, etc., Land Co. v. Preciado, 167 Cal. 580, 584, 140 P. 239, 241, that
"The fundamental proposition *** is that equity will afford relief to a party from whom an illegal tax has been collected or is sought to be collected. But as equity makes good only the deficiencies of the law, it will not interpose between the property owner and the fiscal officers where the law then or thereafter affords him adequate redress. But stating it conversely, where the law then or thereafter does not afford the owner adequate redress, equity will interpose for the protection of his property rights."
In the latter case the Supreme Court also announced that where the complaint is addressed to asserted irregularities or illegalities in the ministerial and executive processes fixing the lien upon property, and there is an equitable duty to pay some tax, courts have shown a proper reluctance to come to the relief of an individual and enjoin the collection of the tax as a whole to the great disturbance of the revenues. But, where a cloud is cast upon the individual’s title by the void assessment it would be a grievance which would entitle him to go into a court of equity for relief. In that case injunction was granted restraining the proper officers from advertising the plaintiff’s property for sale and from selling it for nonpayment of the tax, and the holding in Crocker v. Scott was carefully considered and was held not to apply where the tax was void, for the reason that the law does not afford adequate relief against the cloud of the void tax.
In this matter we held that the void assessments were clouds upon the titles to the city’s lands and that extrinsic evidence is required to show that fact. Therefore, the titles are not merchantable and the equitable remedy of injunction may be invoked in the city’s action to remove the cloud.
Rehearing denied.