Opinion
Department Two
Appeal from a judgment of the Superior Court of San Diego County.
COUNSEL:
The directors had express power to create a debt without a vote of the electors. (See Wright Act, secs. 11, 14, 15, 35.) There is certainly no express prohibition of the power of taxation in the Wright act, and therefore the district had implied power to create debts, and consequently to levy a tax to pay such debts. (People v. Board of Supervisors , 21 Cal. 669; Security Sav. Bank v. Hinton , 97 Cal. 219; Citizens' Sav. and Loan Association v. Topeka, 20 Wall. 655; Wolff v. New Orleans , 103 U.S. 358; Quincy v. Jackson , 113 U.S. 332-38; Albuquerque Bank v. Perea , 147 U.S. 87; Cooley on Taxation, 475-79.) It will not do to say that a minority of the electors, by refusing to act, can relieve the taxpayers of the obligation, and the legislature has recognized this by providing in the act to disincorporate, that no district shall be dissolved until all indebtedness is paid. (Laws of 1893, pp. 520, 521. And see People v. Selma Irrigation District , 98 Cal. 206.)
C. H. Rippey, and David L. Withington, for Appellants.
D. L. Murdock, for Respondents.
The assessment is illegal, as it was levied without a vote of the electors. (Tregea v. Owens , 94 Cal. 317.) As under section 30 of the Wright law the deed given to a purchaser under sale for delinquent taxes is prima facie evidence of the proceedings, it casts a cloud upon the title. (Palmer v. Rich , 12 Mich. 420; Scofield v. Lansing , 17 Mich. 447; Jenkins v. Board of Supervisors , 15 Wis. 12; High on Injunctions, sec. 595; Blackwell on Tax Titles, sec. 1066.) A deed good on its face is a cloud. (Blackwell on Tax Titles, sec. 1066; High on Injunctions, sec. 375; Burr v. Hunt , 18 Cal. 307; Holt v. Weld , 140 Mass. 578; Arrington v. Liscom , 34 Cal. 371; 94 Am. Dec. 722.) Injunction will lie to restrain a tax sale that will cast a cloud upon the title when the invalidity will not appear upon the face of the deed. (High on Injunctions, secs. 494, 525, 526, 538; Blackwell on Tax Titles, 5th ed., secs. 1053, 1056-58; Burnet v. Cincinnati, 3 Ohio, 75; 17 Am. Dec. 582; Greedup v. Franklin , 30 Ark. 101; Burr v. Hunt , 18 Cal. 307; Axtell v. Gerlach , 67 Cal. 483; Jenkins v. Board of Supervisors , 15 Wis. 12; Scofield v. Lansing , 17 Mich. 447; Pomeroy's Equity Jurisprudence, sec. 1345; Johnson v. Hahn, 4 Neb. 149; South Platte Land Co. v. Buffalo Co ., 7 Neb. 253.) A deed regular upon its face, which by statute is made evidence of title, casts a cloud, and the court will enjoin raising of the cloud where it would remove the cloud if cast. (Pixley v. Huggins , 15 Cal. 132; Blackwell on Tax Titles, sec. 1066; High on Injunctions, sec. 372; Pettit v. Shepherd, 5 Paige, 493; 28 Am. Dec. 437.)
JUDGES: De Haven, J. Fitzgerald, J., and McFarland, J., concurred.
OPINION
DE HAVEN, Judge
The assessment referred to in the complaint not having been authorized by a vote of the electors of the Otay Irrigation District, was illegal under the rule announced in the case of Tregea v. Owens , 94 Cal. 317; and inasmuch as the [37 P. 527] invalidity of such assessment would not appear upon the face of the deed given to the purchaser at the sale made for the purpose of collecting the delinquent tax levied by such assessment, the plaintiffs are entitled to the injunction given by the judgment appealed from. (Pixley v. Huggins , 15 Cal. 127; Burr v. Hunt , 18 Cal. 303.)
Judgment affirmed.