Wills v. Austin

By the Court : If the plaintiff’s land had been- sold by the defendant as Tax Collector for. the alleged taxes, and a tax deed had been made to the purchaser, would the deed have been void on its face ? For if so, it would have imposed no cloud on' the plaintiff’s title, and the threat to sell would not, under such circumstances, have amounted to legal duress. ( Bucknall v. Story, 46 Cal. 589.) The only authority in law there was for the levy of a State tax for the fiscal year 1872-3, is to be found in sec. 3696 of the Political Code as it then stood. That section was under review by this Court in the case of Houghton v. Austin, 47 Cal. 646, and it was decided that so much of the section as authorized the State Board of Equalization, in determining the rate of the State tax, to make an allowance for delinquency in the collection of taxes, was unconstitutional and void. The exigency of the case did not require the Court to decide, and it did not decide, whether the whole section was void on its face. But we think the logical result of the decision is, that the whole section was unconstitutional and void per se. The clause requiring an allowance to be made for delinquency in the collection of the tax is so blended with the remainder of [179] the section, and the several clauses are so dependent on each other, that they must all stand or fall together. The rule applicable to this point is forcibly stated by Chief Justice Shaw in Warren v. Mayor of Charlestown, 2 Gray, 98, who, after stating the general proposition that some portions of a statute may be held to be constitutional, while another portion may be pronounced void, and that in certain cases the valid portion may stand and the other be rejected, proceeds to say that “ this must be taken with this limitation, that the parts, so held respectively constitutional and unconstitutional, must be wholly independent of each other. But if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the Legislature intended them as a whole, and that, if all could not be carried into effect, the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.” This case was quoted with approval in French v. Teschemacher, 24 Cal. 548; and doubtless states the law correctly. Tested by this rule, the whole of sec. 3696 was void per se. The statute authorized the State Board of Equalization to determine the rate of taxation, coupled with the condition that it should make an allowance for delinquency in the collection of the tax. The power was to be exercised only on this condition, and the condition having failed on constitutional grounds, the power to determine the rate fell with it. In other words, the two clauses were “ dependent, conditional, or connected,” in the language of Chief Justice Shaw, and must stand or fall together. This becomes the more apparent, from the fact that if the clause requiring an allowance for the delinquency be stricken out, the State Board of Equalization has no authority to fix any rate of taxation, except such as would produce the requisite amount of revenue, on the hypothesis that all the taxes would be paid; and as there will always be, under our revenue system, (as is demonstrated by long experience) a considerable delinquency in the collection of taxes, the necessary result would be that the rate fixed by the Board, and the only [180] rate which, by the terms of the statute, they had the right to establish, would be insufficient to produce the required amount of revenue. But we need not elaborate this point further, as it is obvious, we think, that no portion of the section can stand if the clause relating to the allowance for the deficiency be stricken out; and the necessary result would be that the Tax Collector’s deed would have been void on its face. Sec. 3786 of the Political Code required the Tax Collector’s deed to recite amongst other matters that the land was sold for taxes, “ giving the amount and year of the assessment.” The deed, therefore, would have shown on its face that it was for a State tax purporting to have been levied for the fiscal year of 1872-3, whereas, as has been shown, there was no valid law authorizing a State tax to be levied or collected for that year. The deed would therefore have been void on its face, so far as it related to the State tax. ¡Nor would it have been otherwise if it had appeared on the face of the deed that the same land was sold at the same time to the same purchaser for a valid municipal tax. It is a familiar rule that if land be sold for taxes a part of which are valid and a part illegal, the whole sale and the tax deed will be void. For these reasons, we are of opinion that when the plaintiff paid the money to the defendant he was under no legal duress, and the payment must be deemed to have been voluntary. In such cases, it is well settled that the money cannot be recovered back; and the judgment in the Court below should have been for the defendant. ¡Nor do we see any reason for remanding the cause for a new trial. It is evident the plaintiff could not improve his case on another trial. Judgment and order reversed, and cause remanded, with directions to the Court below to dismiss the action.