People ex rel. Love v. Ashbury

By the Court, Rhodes, J.: It was determined by the unanimous opinion of the Court in the recent case of the Savings and Loan Society v. Austin, ante, p. 415, that solvent debts are liable to taxation. The solvent debts in question in this case were, therefore, proper subjects of taxation, and, so far as appears in this record, were properly assessed, and entered upon the assessment roll for the fiscal year 1872-3. The taxes thereon not having been paid, those solvent debts were returned as delinquent; and it became the duty of the respondent, as the Auditor of the City and County of San Francisco, under the provisions of section three thousand eight hundred and two of the Political Code, to enter upon the assessment roll for the fiscal year 1873-4, the taxes so remaining delinquent, and, of course, to enter the same upon the duplicate assessment book, unless they had been duly canceled by the Board of Supervisors. The Auditor, in justification of his refusal so to enter those taxes upon the assessment book, sets up and relies upon a resolution of the Board of Supervisors, passed October 25th, 1873, which is as follows: “Resolution number four thousand five hundred and sixty-six (new series)—Resolved, That the assessment on all solvent debts, and all solvent debts secured by mortgage on the list of unpaid taxes furnished by the Auditor on the assessment roll for the fiscal year 1872-3, be, and the same are hereby canceled; and the Clerk is hereby directed to return the said list of unpaid taxes, as corrected by this Board, to the Auditor, in order that the unpaid taxes remaining on said list may be entered on the assessment roll for the fiscal year 1873-4.” It is claimed that this resolution is authorized by section three thousand eight hundred and one, and was passed in pursuance of the authority there given. This position is untenable, The Board has no authority to proceed to [528] cancel any taxes other than such as are contained in the list furnished by the Auditor, and taken by him from the delinquent list, after the Collector has made the affidavit required by section three thousand eight hundred to be indorsed thereon, to the effect that ‘ ‘ he has not been able -to discover any property belonging to, or in the possession of, the person liable to pay the same [taxes], whereof to collect them.” In other words, the Board has no power to cancel the taxes, unless the Collector has made the affidavit provided for in that section. It is not intended that the Board should act in the matter without regard to the action or non-action of the Collector, but the purpose is to give the Board authority to cancel such of the taxes returned delinquent and uncollected, because property could not be found out of which to make the taxes, as, in the opinion of the Board, cannot be collected—to cancel those taxes in respect to which it concurs with the Collector that they are not collectable. Without the affidavit, the Board has no jurisdiction to determine that any tax cannot be collected.' We are not required to express any opinion as to whether a sweeping resolution like the one before us is void; but we think it more orderly, and in better accord with the provisions of the statute, for the resolution or order to specify each particular tax which is canceled. The resolution, for the reasons first stated, is void; and the Auditor should have proceeded in the discharge of his duties, in entire disregard of it. The Collector is not a necessary party to this proceeding, and, indeed, he would not be subject to a mandamus to compel the performance of any duty pertaining to his office, until he had refused to perform such duty. The statute does not expressly prescribe the time at which the Auditor shall enter the delinquent taxes on the assessment book; but the implication is that it should be done before the duplicate assessment book is delivered to [529] the Collector. This implication, however, is not mandatory, but is only directory; and, in our opinion, it is the duty of the Auditor to proceed forthwith to enter the delinquent taxes in question on the assessment book. Peremptory mandate ordered.