Burr v. Hunt

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. Plaintiff brought his bill against defendant, Tax Collector, to enjoin the collection of taxes in the city of San Francisco, claimed to be due from the plaintiff for the year 1857. The bill avers that the assessment under which plaintiff’s property was advertised was made under, and by virtue of, an act of the Legislature, passed May 15,1854, which act provided the manner of the assessment, and rules for the collection, and remedies for the enforcement thereof against all delinquents, and that this act was repealed by the act of April 29th, 1857. The only question made and argued is, whether the deed, if executed by the Tax Collector, would create a cloud upon the title. If the assessment and the sale would be void, and if the matters which make them so do not appear on the face of the deed, but must be shown by extrinsic proof, and if the deed upon its face be prima facie valid, according to the cases in this and other Courts, the equitable remedy here sought would be proper. If this law of 1854 be repealed in all its parts, as stated in the bill, and the Tax Collector is proceeding under that repealed act, it is difficult to see how any man’s title could be clouded by force of any proceedings under it. The presumption of knowledge of a law passed,-or a law repealing a former act, attaches to every citizen. It is said, in answer, that it will not appear on the face of the deed of the Tax Collector by what act the assessment was made. We must suppose the Tax Collector will make the deed in the usual and regular form, and that the deed will recite the facts. Among these would be the fact that taxes were assessed, and the [308] time and amount of this assessment. It would seem almost impossible to make out a certificate or deed under the Act of 1854 which would not show that the sale was not justified. The Tax Collector in making his certificate should state the facts as they really existed, and we cannot interpose by way of injunction upon a mere conjecture that he will make his papers so as not to conform to the facts. If the sale were made in 1860, for taxes assessed by the Act of 1854, and due in 1857; and the proceedings so taken were not authorized by the Act of 1854, but that act was repealed, the act of the Collector would be simply null. The deed showing the assessment would show that it was made prior to April, 1857, and the last act repeals the previous act of 1854 giving any effect whatever to such assessment. The tax deed, to be evidence, must be made in pursuance of a law giving it that effect; but no law gives that effect to a tax deed for lands sold under the Act of 1854, the deed being made after that act was repealed. The Act of 1857 does not authorize sales for taxes assessed prior to its passage, but only for the fiscal year or years following the passage of it. And these taxes would show upon the face of the assessment and deed that they were not assessed for that year, but for the previous year, that is, for the fiscal year ending June 30th, 1857. It is further said that the Act of 1859 (St. 1859,123) ratified the assessment roll of 1857, and that the Court will take notice of this; and that, therefore, this tax deed and the act taken together, would create this cloud upon the title. The bill charges that the defendant is proceeding under the Act of 1854, and no facts in connection with the Act of 1859 are stated which enable us to pass upon the question whether or not the assessment of 1854, or the pretended assessment, is or is not invalid within the true meaning or effect of the Act of 1859. - , We have in several cases laid down the principles which govern the liability, of taxpayers and the effect of tax laws, by reference to which the -validity of the Act of 1859 possibly might be determined. But we cannot, in the absence of some allegation that no assessment list was made within the true meaning and operation of the Act of 1859, decide upon the question here. If the Act of 1859 be unconstitutional, it creates no cloud upon the title; if it [309] be not, and the act embraces and validates this alleged assessment of 1857, then there is no pretense for an injunction. We think that the injunction should be dissolved, the judgment reversed, and cause remanded. Ordered accordingly.