People v. San Francisco Sav. Union

Full title: THE PEOPLE v. THE SAN FRANCISCO SAVINGS UNION

Court: Supreme Court of California

Date published: Oct 1, 1866

31 Cal. 132 (Cal. 1866)

Opinion

[Syllabus Material]          Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.

         This action was brought to recover judgment for two thousand one hundred and forty dollars and sixty-eight cents, for a tax alleged to have been assessed in 1863, upon money at interest secured by mortgage. On the trial the plaintiff offered in evidence that part of the duplicate assessment roll for the City and County of San Francisco for the year 1863, which reads as follows:

         The duplicate assessment roll was certified to by the Auditor. The defendant, by his attorney, objected to the evidence, because there was no certificate of the Assessor attached thereto, nor any evidence that the property was assessed as required by law, or that the Assessor delivered the assessment roll to the Clerk of the Board of Equalization. Thereupon the plaintiff offered in evidence the original assessment roll, certified by the Assessor and Clerk of the Board of Equalization, and proposed to read therefrom the following extract:

         The defendant objected to the evidence, because no valuation was affixed to the property. The Court permitted the evidence to be introduced, subject to the objections, and the defendant excepted.

         The Assessor then testified that the figures in the assessment roll were intended to represent dollars and cents. To the admissibility of that testimony defendant excepted on the ground that the same was irrelevant, incompetent, and immaterial. The Court admitted the testimony to be given, reserving the question of its admissibility and effect until the argument of the cause.

         Judgment was for the defendant in the Court below, and plaintiff appealed.

         COUNSEL:

         Nathan Porter, District Attorney, Delos Lake, and T. I. Bergin, for Appellants, argued that the rule on the subject of parol evidence was foreign to this case, and applied only to written contracts between parties, and that the power of the Legislature to cure all infirmities in the assessment of taxes was plenary; and cited on the last point High v. Shoemaker , 22 Cal. 369; The People v. McEwen , 23 Cal. 57; The People v. Todd , 23 Cal. 183; Guy v. Washburn , 23 Cal. 115; and The People v. Holliday , 25 Cal. 300. They also argued that the duplicate assessment roll was the final act in the ascertainment of the amount of the taxes and public revenues, and was conclusive upon the taxpayer in absence of any appeal therefrom to the Board of Equalization; and cited Williams v. Holden, 4 Wend. 223; Merrill v. Gorham , 6 Cal. 41; and Hemmenway v. Inhabitants of Machias , 33 Me. 445.

          Campbell, Fox & Campbell, for Respondent, argued that the barren figures in the column of valuation, without anything to indicate whether they stood for dollars or cents, did not constitute an assessment; and cited Hurlburt v. Butenop , 27 Cal. 59; and that an intention to fix a valuation to an assessment did not fix a valuation. They also contended that the Act of 1863-4, p. 349, did not cure a want of valuation in an assessment.

PERSONAL PROPERTY. FISCAL YEAR 1863-64.
REFERENCE	NAMES OF	RESIDENCE	DESCRIPTION OF PROPERTY.
BOOK.	OWNERS.	OR PLACE OF
		BUSINESS.	This property is assessed to
			the parties listed, and to all
			owners and claimants, known
			or unknown; and to all owners
			and claimants of any interest,
			present or future therein, or
			any lien upon the same.
	San Fran-		Money at interest secured by
	cisco		Mortgage.
	Savings
	Union.

PERSONAL PROPERTY. FISCAL YEAR 1863-64.
REFERENCE	Valua-	State Tax,	General	School
BOOK.	tion.	90 cts.	Fund,	Fund,
			42 1/2	20
			cts.	cts.
	101,937 18	917 42	433 21	203 86

PERSONAL PROPERTY. FISCAL YEAR 1863-64.
REFERENCE	Corpora-	Street Light	Interest Tax	Total Tax,
BOOK.	tion Debt	Fund,	Railroad,	$ 2 10
	Fund,	7 1/2 cts.	5 cts.
	45 cts.
	458 69	76 46	57 00	2,140 68
				107 03
				50
				2,248 21

NAMES OF OWNERS.	RESIDENCE OR	DESCRIPTION OF PROPERTY.	VALUATION.
	PLACE OF BUSINESS.
		This property is assessed to
		the parties listed, and to
		all owners and claimants,
		known or unknown; and to all
		owners or claimants of any
		interest, present or future
		therein, or any lien upon the
		same.
San Francisco		Money at interest secured by	101,937 18
Savings Union.		Mortgage.

         JUDGES: Sawyer, J.

         OPINION

          SAWYER, Judge

         We are unable to distinguish this case from Hurlburt v. Butenop , 27 Cal. 50, Lawrence v. Fast , 20 Ill. 341, Lane v. Bommelmann , 21 Ill. 147, and Eppinger v. Kirby , 23 Ill. 523, and those cases are conceded to be correctly decided. It is true that plaintiffs are seeking a judgment for a certain amount claimed to be due for taxes, and not seeking to sustain a tax deed. But it is necessary that there should have been a tax assessed, and that the amount should be ascertained, otherwise, there is no basis for a judgment to rest upon. There were judgments in the cases cited from the Illinois Reports, but the judgments followed the assessment rolls which were introduced in evidence to establish the tax, and were, therefore, as vague and uncertain as the rolls themselves. In this case, the existence of the tax is put in issue by the pleadings, and to entitle plaintiffs to recover, it is necessary for them to show that a valid tax has been levied. The evidence, and the only legal evidence, to establish this fact, unless the curative Act of April 4, 1864, authorizes the introduction of other evidence, is the official assessment roll. Looking to that alone, we can no more say from an inspection of the roll that there is a valuation of the property expressed, or that the amount of the tax is designated, than we could upon a similar examination for the purpose of ascertaining the same fact with the view to determining the validity of a tax deed executed under a sale based upon such an assessment, without a judgment. The assessment roll would, upon its face, present the same defect in the former case as in the latter; and if it did not speak in intelligible language in the one case, it certainly would not in the other. In the assessment roll, in the column headed " valuation," there is nothing whatever to indicate what the figures are intended to represent, and, under the authorities cited, we are not authorized to say they mean dollars. They are simply numerals--" barren figures" --that are as often employed to indicate anything else that may be numbered as dollars, or, if money is indicated, the denominations may be either eagles, dollars, cents or mills. If a plaintiff in a suit to recover the value of property converted should allege the value of such property to be 4250, and a jury should return a verdict for the plaintiff, assessing the damages at 4250, and the judgment following the allegations of the complaint and verdict should be for 4250, without anything to indicate what the 4250 were intended to indicate, it would scarcely be claimed that the judgment could be enforced. So also, if, in a suit on the judgment, the judgment roll should be introduced in evidence, it would scarcely be contended that parol evidence would be admitted to show that the figures 4250 were intended to designate dollars. Take, for example, a promissory note in the following form: " For value received, two __ after date, I promise to pay John Smith or order, two hundred and fifty-six __ with interest." Would the Court be authorized to presume that the word years was intended to be understood after the word " two," and the word dollars after the words " two hundred fifty-six." Or could the instrument be helped out by parol proof? We think not. There would be an incurable patent ambiguity. (1 Green. Ev. 300.) If it be conceded, then, that the assessment is so defective that the Court cannot determine what is intended for the purpose of sustaining a tax deed in the cases cited, it follows necessarily that it is insufficient as evidence to authorize a judgment.

         Duplicate assessment roll .

         It is insisted, however, by the appellant that the assessment roll returned by the Assessor to the Board of Supervisors is not the complete roll; that the duplicate is the one to be looked to for the purpose of ascertaining the tax, and that on reference to the duplicate in this instance by aid of the tax carried out in the subsequent columns, that which was before vague and indefinite is rendered sufficiently certain. Conceding that, in the figures carrying out the tax in subsequent columns, it is sufficiently indicated that dollars and cents are intended, (but this is by no means clear,) this does not cure the defect. The Assessor's list only contains names of the owners, and descriptions of the property assessed, and the valuation. When his roll embracing these particulars is completed it is certified by him and delivered to the Clerk of the Board of Supervisors, and thereupon his functions cease. This is the assessment roll which is the basis of all subsequent proceedings. The Board of Supervisors then, in the mode prescribed by law, equalizes the valuations, and the Clerk of the Board enters upon it all the changes and corrections made by the Board; after which the assessment roll, so corrected, is delivered by the Clerk to the Auditor, whose duty it is to add up the columns of valuation, enter the totals upon the roll, and deliver to the Tax Collector a copy of the corrected roll, with the State, county and other taxes, and total of taxes carried out in separate money columns. This is the duplicate. The Auditor's duties in this respect are merely those of computation of the percentage upon the valuation already fixed by the Assessor, as corrected by the Board of Supervisors, and carrying out the amount in separate columns in the roll. (Sec. 8, Rev. Laws.) He has no discretion. The duty of computation could as well be performed by any other person as by the Auditor. He must base his computation upon the record--the valuation furnished him. He must take the valuation as he finds it. He has no means of information as to the value of the property, which is not equally open to this Court. If no valuation is expressed, he has no authority to supply it. If he finds certain figures without any designation as to what they are intended to signify, he cannot give them an arbitrary signification; and if he assumes them to signify dollars, that assumption does not aid this Court in determining whether or not they were intended to designate dollars. In this case, neither in the original, nor duplicate, is there anything to indicate what the figures in the column headed " valuation" were intended to signify, and the Auditor was no more authorized to call them dollars than this Court would be. The duplicate, therefore, of itself affords no aid in the solution of the question. Section thirteen, Article XI, of the Constitution requires all property to be taxed in proportion to its value, to be ascertained as directed by law, and provides that Asessors shall be elected. A valuation is the very foundation of proceedings for apportioning and collecting a tax upon property. It is essential to the validity of a property tax. It was so held in People v. Hastings , 29 Cal. 449, and that the valuation must be made by the Assessor. If the Assessor has failed to make an intelligible valuation, that duty cannot be performed or the defects remedied by the Auditor. Nor can the Legislature make the valuation. Clearly, then, under the authorities cited, there is no valuation shown by the original assessment roll or the duplicate--for the same defect exists in both. They, therefore, afford no evidence of a tax legally levied; and independent of any statute authorizing such evidence, we are clearly of the opinion that the parol testimony of the Assessor to show what he intended to express by the figures in the assessment roll was incompetent. The record--the assessment roll, when completed and certified to the Board of Supervisors, is the only evidence of his acts and intentions.

         Act of 1863-4 legalizing assessments .

         On the 4th of April, 1864, an Act was passed in the words following: " Section 1. The assessments of taxes upon all property, real and personal, in the several counties of this State, whether for State, county or other purposes, made by the county, district or township Assessors thereof, for the revenue year commencing on the first Monday of March, A. D. 1862, and for the revenue year commencing on the first Monday of March, A. D. 1863, are hereby legalized and confirmed, and rendered binding and valid, both in law and equity, against the person and property assessed, and no want of description or indescription, or informality, or irregularity in the description of the property assessed upon the assessment roll, if it can be ascertained or proved by any proper and competent evidence what property is intended, shall invalidate the assessment, but the same shall be sufficient and be considered valid both in law and equity." (Laws 1863-4, p. 359.)

         It is claimed that this Act cured the defect. But we think not. There was no intelligible valuation, and it is necessary to ascertain the value in order to determine the amount of the tax. The Act in no way enables us to determine the value of the property, and consequently we cannot ascertain the amount of the tax. The very essence of a valid apportionment of the tax is wanting. The Legislature might perhaps have authorized the Assessor, even in the present stage of the record, to amend the assessment roll so as to show what he actually intended; or, perhaps, have authorized the Assessor to testify upon the trial what he designed to express by the figures used. But nothing of the kind has been done. Where there is a defective description of the property taxed the law authorizes it to be shown by " proper and competent evidence," if it can be done, " what property is intended." But suppose this cannot be " ascertained or proved by any proper and competent evidence," will the tax still be valid? Of course not. But the law limits this remedy to defective descriptions of the property, and does not purport to authorize the Assessor to state what his intention was in the use of certain figures for the purpose of remedying a defective valuation. Nor can it be said that the tax carried out by the Auditor, admitting that to be expressed with sufficient certainty, was adopted and legalized without reference to the valuation. That would be to levy an arbitrary tax without reference to value, and would be more objectionable, if possible, under the Constitution, than the assessment in question in People v. Hastings, before cited. We are satisfied that the Act in question does not reach the case. It follows that no legal tax against the defendant was shown by the evidence, and that there is no error in the judgment.

         Judgment affirmed.