Opinion
Rehearing Denied Nov. 22, 1928.
Hearing Granted by Supreme Court Dec. 20, 1928.
Application for writ of prohibition by the Los Angeles County Flood Control District, to be directed to Superior Court of the State of California in and for the County of Los Angeles and others, in which the City of Pasadena intervenes.
Writ denied. COUNSEL
Everett W. Mattoon, Co. Counsel, Roy W. Dowds, Flood Control Counsel, and W. Sumner Holbrook, Jr., Deputy Co. Counsel, all of Los Angeles, for petitioner.
R. C. McAllaster, City Atty., and Harold P. Huls, Deputy City Atty., both of Pasadena, for respondents and intervener.
Jess E. Stephens, City Atty., and Alan Patten, Deputy City Atty., both of Los Angeles, W. Turney Fox, City Atty., of Glendale, Chester L. Coffin, City Atty., of Santa Monica, and Nowland M. Reid, City Atty., and C. A. Windham, Chief Deputy City Atty., both of Long Beach, amici curiæ .
OPINION
HAZLETT, Justice pro tem.
This is an original application for a writ of prohibition to require respondent superior court of Los Angeles county to dissolve a restraining order issued pending an action commenced in that court on June 29, 1928, by the city of Pasadena against W. O. Welch, as tax collector of the county, and petitioner Los Angeles County flood control district, numbered 255803, and to prevent respondents from taking any further proceedings in the action.
From the act creating petitioner district and the allegations of the pleadings in this application admitted to be true, the following facts appear:
Petitioner Los Angeles County flood control district is a body corporate and politic, created by the act of the Legislature known as the "Los Angeles County Flood Control Act," approved June 12, 1915 (Stats. 1915, p. 1502), and operating under the act and the amendments thereto. The district comprises many thousands of acres of land in the county and territory of cities, to wit, that portion of Los Angeles county lying south of the north line of township 5 north, San Bernardino base, excepting therefrom the islands of the coast included in the county. Pursuant to the provisions of the act, bonds of the district were authorized in 1917 and in 1924, and on the first Monday in March, 1927, there were approximately $9,750,000 of the bonds issued and outstanding and in the hands of investors, and those bonds are liens upon the taxable lands of the district. The act provides that the board of supervisors of the county shall levy the taxes required to be imposed for the purposes of the district, that the officers of the county shall perform their various functions as officers ex officio of and for the district, and that the taxes shall be levied and collected at the same time and in the same manner and by the same officers as general taxes in the county.
On the first Tuesday after the first Monday in September, 1927, the board of supervisors levied an assessment upon all benefited taxable real property in the district to pay interest and installments of principal on the outstanding bonds, and an additional assessment to pay for maintaining, operating, extending and repairing the work or improvements of the district. The lands assessed include 242 parcels belonging to the city of Pasadena and used by the city for public purposes on and subsequent to the first day of March, 1927. The city did not pay the assessments, but permitted them to become delinquent, and the tax collector published the delinquent tax list, including a notice that the parcels would be sold to the state, as provided in section 3771 of the Political Code, if not paid, and prior to June 30, 1928, he mailed a like list and notice to the city.
Thereupon the city commenced the action in respondent court. In its complaint the city alleges that, notwithstanding protests made by the city, the officers of the county and district, more particularly the assessor, after August 1, 1927, and prior to December 1, 1927, the exact date being unknown to the city, proceeded to assess and to levy the assessments upon the lands of the city, and that by reason of their actions the city was deprived of the right to appear before the board of equalization and be heard as to the values of the parcels, but that the values were arbitrarily established by the assessor and the city was given no opportunity to have the values reviewed as provided by law; alleging the notice of delinquencies and proposed sales to the state for nonpayment of the taxes, penalties and costs; that if the sale is made the city will suffer irreparable loss, and will not have for five years after the sale an opportunity to contest the validity of the tax or sale, and that each year thereafter the county officers will impose additional taxes, and will claim and demand additional penalties and interest thereon; that the city has no plain, speedy, or adequate remedy at law, in that it may not pay the taxes for the reasons that they are invalid, that such payment would be a gift of public moneys of the city, and that application to the board of supervisors for cancellation of the assessment would be fruitless, as the board has refused to cancel any taxes or assessments upon any property in the same situation, basing its refusal upon the advice of the county counsel; and that, by the proposed sale, the city will be deprived of its property without due process of law. Wherefore the city prays that the purported assessments be declared null and void, that the defendants in the action be permanently enjoined from selling the parcels to the state, and from doing any other acts to collect the assessments, or to enforce the lien thereof, for an injunction pendente lite and for general relief.
On June 29, 1928, the superior court issued a temporary restraining order, prohibiting the tax collector from selling the parcels to the state, etc., until the further order of the court.
The tax collector and the district filed a demurrer to the complaint on general grounds, as well as a motion to dissolve the restraining order, which motion the court heard and denied, but the demurrer has not been heard. The demurrer admits that the matters well pleaded in the complaint are true.
Petitioner contends that the sale restrained is a ministerial act to be performed by an officer of the law pursuant to public statute for public benefit; that injunctive relief is not open to impede the operation of revenue laws, unless the act sought to be restrained is of such a nature as to irreparably injure the property or throw a cloud upon it; that the assessments were validly levied upon the property of the city; that the city has an adequate remedy at law to determine the validity of assessments under the provisions of sections 3804 or 3819 or 3804a of the Political Code; and that petitioner district has no plain, speedy, or adequate remedy at law. Respondents demurred to the petition on general grounds, and also filed an answer thereto. They contend that the assessments and the levy thereof on the city’s lands are void.
It fairly appears from the allegations of the complaint of the city that no assessment of the city’s lands was made until some time between the 1st day of August and the 1st day of December, 1927. The petition of the district shows that the assessments were levied by the board of supervisors on the first Tuesday after the first Monday in September. The question is squarely presented whether the assessment and levy are valid and enforceable. The procedure required to be followed by the assessor and the board is laid down in sections 3628, 3650, 3652, 3654, 3672 to 3677, inclusive, 3681, and 3714 of the Political Code.
Section 3628 provides that the assessor must, between the first Monday in March and the first Monday in July of each year, "ascertain the names of all taxable inhabitants, and all the property in his county subject to taxation, except such as is required to be assessed by the state board of equalization and must assess such property to the persons by whom it was owned or claimed, or in whose possession or control it was, at twelve o’clock meridian of the first Monday in March next preceding. ***"
Section 3650 provides that the assessor must prepare an assessment book with appropriate headings, in which must be listed all property within the county, and must show the name, if known, of the person to whom the property is assessed, the descriptions of the lands assessed, the cash value of all real estate and the total value of all property.
Section 3652 provides that on or before the first Monday in July of each year the assessor must complete his assessment book, and section 3654 provides that as soon as the assessment book is completed it must be delivered to the clerk of the board of supervisors, who must give notice by publication thereof of the time the board will meet to equalize the assessments, and that after the board of equalization has completed its labors the book must be returned to the assessor’s office.
Section 3672 provides that the board must meet on the first Monday of July in each year to examine the assessment book and equalize the assessment of property in the county, and must continue in session for that purpose from time to time until the business of equalizing is disposed of, but not later than the third Monday in July.
Section 3681 provides that:
"During the session of the board, it may direct the assessor to assess any taxable property that has escaped assessment, or to add to the amount, number, or quantity of property, when a false or incomplete list has been rendered; and to make and enter new assessments ***; but the clerk must notify all persons interested, by letter deposited in the post office or express, postpaid, and addressed to the person interested, at least five days before action taken, of the day fixed when the matter will be investigated."
Section 3714 (as in effect in 1927 [St. 1927, p. 721]) provides that:
"The board of supervisors of each county must on the first Tuesday after the first Monday of September of each year, fix the rate of county taxes, designating the number of cents levied for each fund on each one hundred dollars of property, and must levy the state and county taxes upon the taxable property in the county. ***"
The term "tax," as used in the Los Angeles County Flood Control Act means "assessment." Los Angeles County Flood Control Dist. v. Hamilton, 177 Cal. 119, 128, 169 P. 1028. The word "assessment," in matters of taxation, refers to the process of listing the persons and property to be taxed, and of extending the sums which are to be the guide in an apportionment of the tax between them. Bruschi v. Cooper, 30 Cal.App. 682, 697, 159 P. 728, 734.
If the lands of the city were not exempt from the assessments, it was the duty of the assessor to assess them and to make the assessments prior to the first Monday in July, 1927; and, as the lands were not then assessed, the board of supervisors, acting as a board of equalization, had the right under section 3681, at any time between the first and third Mondays in July, to order the assessor to assess them as taxable property which had escaped assessment. From the facts pleaded and admitted, it appears that the board took no such action before the 1st day of August. We might assume that the board acted within 20 days after the third Monday in August, which extended time could have been granted the board by the state board of equalization under section 3705 of the Political Code, as under like circumstances was assumed in Buswell v. Supervisors, etc., 116 Cal. 351, 354, 48 P. 226, were it not for the fact that notice of the intended action by the board was a jurisdictional step in the matter.
It was the duty of the clerk of the board of supervisors, as provided in section 3681, to give the city, as the interested party, notice by letter at least five days before action taken by the board of the day fixed when the matter of ordering the assessments would be acted upon and the order to assess made. Huntley v. Board of Trustees, 165 Cal. 298, 304, 131 P. 859. From the facts well pleaded in the city’s complaint it appears that no such notice was given, but nevertheless at some time after the 1st day of August the assessor assessed the lands and the board levied the assessments complained of. It does appear, however, that prior to the time when the assessments were made the city protested, presumably to the assessor, against any assessment of its lands, but the city was given no opportunity to be heard by the board at a time fixed by the board for considering any proposed assessment of the city’s lands, or to make any showing or protest against the values that might be placed upon the lands for the purposes of the assessments, as the city had the right to do pursuant to the provisions of sections 3673 to 3677, inclusive, and 3681 of the Political Code. Therefore the city had no opportunity to have the values fixed reviewed.
The authority to impose taxes upon persons or property for public purposes must be exercised strictly in the manner laid down in the statutes, and all laws having this object are to be strictly construed in favor of the taxpayer as against the state. The taxing authorities must establish every fact essential to the maintenance of the right of recovery of the tax. In this sense the jurisdiction of the board of supervisors and the assessor extends only to their right to act in the manner provided by law (Estate of Potter, 188 Cal. 55, 64, 204 P. 826; Imperial Land Co. v. Imperial Irrigation Dist., 173 Cal. 660, 664, 161 P. 113; Birch v. Board of Supervisors, 191 Cal. 235, 237, 215 P. 903), and if the assessment is not so made, no valid levy of the tax may be imposed and all subsequent proceedings are nullities (Wright v. Fox, 150 Cal. 680, 89 P. 832; Carter v. Osborn, 150 Cal. 620, 623, 89 P. 608; Savings & Loan Soc. v. San Francisco, 146 Cal. 673, 676, 80 P. 1086; Dranga v. Rowe, 127 Cal. 506, 508, 59 P. 944).
A taxpayer is entitled to notice of the meetings of the board of equalization at which his taxes may be increased, an assessment arbitrarily made by the assessor is void, and the taxpayer cannot be deprived of an opportunity of appearing before the board to contest the amount assessed against him and to have the value fixed reduced. His right to such notice is determined by section 9 of article 13 of the state Constitution, as well as by the statutes above referred to, and if the notice is not given him the attempt to tax his property is abortive, the assessment and tax are in violation of the mandate of the Constitution and are void. People v. Pittsburg R. R. Co., 67 Cal. 625, 626, 8 P. 381. See, also, section 3673, Pol. Code.
For the reasons stated, it appears from the admitted allegations of the city’s complaint that the assessments and levy complained of were made arbitrarily and are void.
Payment of the tax under protest and suit to recover back the amount as provided in sections 3804 and 3819 of the Political Code do not constitute a plain, speedy, or adequate remedy, for the reason that the taxpayer is not entitled to recover interest on the amount paid. Birch v. Board of Supervisors, supra; Hopkins, Assessor, v. Southern California Telephone Co., 275 U.S. 393, 48 S.Ct. 180, 72 L.Ed. 329. It certainly would be useless and unreasonable for the court to adjudge a tax invalid and then to remit the taxpayer plaintiff to the pursuit of statutory remedies, particularly when all subsequent proceedings of the taxing and tax collecting authorities would necessarily be based upon a foundation decreed to be void. No matter what remedies are allowed by statute, it would come back to the proposition that the taxpayers should be relieved from the payment of a void tax. Spring Valley Water Co. v. Planer, Tax Collector (Cal.App.) 263 P. 323. See, also, Hopkins v. Southern California Telephone Co., supra.
City officers have no right to pay out moneys of the city upon a void claim (section 17, art. 11, Const.); and if in this matter the officers of the city of Pasadena had used the money of the city to pay the assessments as provided in sections 3804 and 3819 of the Political Code, the city could not have recovered the money back upon the ground that the assessments were void, for the reason that no compulsion to pay the void assessments existed. Spencer v. Los Angeles, 180 Cal. 103, 107, 179 P. 163.
The provision of subdivision 4 of section 3423 of the Civil Code, to wit, that "an injunction cannot be granted *** (4) to prevent the execution of a public statute, by officers of the law, for the public benefit," rests on the premise that the statute in question is a valid exercise of legislative power; but, if the statute is void, subdivision 4 of section 3423 has no application, and does not prohibit the issuance of the injunction. Livermore v. Waite, 102 Cal. 113, 36 P. 424, 25 L. R. A. 312; Wheeler v. Herbert, 152 Cal. 224, 228, 92 P. 353; Reclamation Dist. v. Superior Court, 171 Cal. 672, 676, 154 P. 845. Neither do the provisions quoted from section 3423 have any application to a proceeding by public officers under a valid statute to impose or enforce a tax when they proceed in such manner that they fail to acquire jurisdiction to tax, unless it appears that the deed which may be issued pursuant to the tax sale will show on its face that the proceedings are void. In the latter case injunction to stay the hands of the officers does not lie, as the deed would not constitute a cloud upon the title. Las Animas, etc., Land Co. v. Preciado, Tax Collector, 167 Cal. 580, 584, 140 P. 239; Pierce v. City of Los Angeles, 159 Cal. 516, 519, 114 P. 818; Woollacott v. Meekin, 151 Cal. 701, 707, 91 P. 612; Pasadena Park Imp. Co. v. Lelande, 175 Cal. 511, 521, 166 P. 341; Title Restoration Co. v. Kerrigan, 150 Cal. 289, 88 P. 356, 8 L. R. A. (N. S.) 682, 119 Am. St. Rep. 199.
An injunction lies to prevent the colorable lien of a void special assessment attaching to lands in an assessment district (Pasadena Park Imp. Co. v. Lelande, supra; Las Animas, etc., Land Co. v. Preciado, supra), where it is necessary to resort to extrinsic evidence to defeat the lien of the assessment otherwise, on its face and by virtue of the presumption of its regularity, valid. (Owens v. Dudley, 162 Cal. 422, 427, 122 P. 1087).
Petitioner lays great stress upon the reasoning in the case of Crocker v. Scott, 149 Cal. 575, 87 P. 102, in which the court announced that to justify the remedy of injunction to stay the hands of the tax collector in selling the lands to the state on account of the delinquency of taxes already assessed and levied it must appear that injunction is necessary to protect the rights of the landowner, or that the enforcement of the tax will throw a cloud upon the title of his lands, or lead to a multiplicity of suits, and that he has no adequate remedy at law. The court further held in that case that none of the acts complained of could have any such effect for the reasons that the sale to the state, making the entry "sold to the state" and issuing a certificate of delinquent tax sale, added nothing to the validity of the tax lien, but only had the effect of preserving the rights of the state and of starting the running of the period of five years within which redemption might be effected, at the expiration of which a deed might be issued to the state; also, that the taxpayer has complete protection against the creation of a cloud upon his title by enjoining the issuance of the deed, and that equity will not interpose to the extent of preventing the performance of those preliminary acts by the tax collector, the failure to perform which may result in prejudice to the state in the enforcement of its revenue laws.
In the case of Pierce v. City of Los Angeles, supra, it appeared that the board of public works of the city of Los Angeles was enjoined from imposing any penalty or making any sale on account of the failure of property owners to pay certain assessments declared against their lands for public improvements. Upon appeal the Supreme Court held that such proceedings are in invitum, and the very essence of the litigation is whether or not the steps necessary to acquire jurisdiction were followed by the board, and that the court must alternately determine the sufficiency or insufficiency of the proceedings by virtue of which the city and the board claimed jurisdiction to assess the costs of the improvement and to do the other acts contemplated by them; also, that a court of equity, in such a case, may stay the hands of the officers until it is finally and judicially determined whether or not they are seeking to deprive citizens of property without due process of law.
The holding in Crocker v. Scott, supra, was construed in the case of Las Animas, etc., Land Co. v. Preciado, supra, in which the plaintiff sought to enjoin the defendant from declaring delinquent certain void school taxes and from selling the taxed lands to the state. The court held that the taxing officers acted beyond the scope of their jurisdiction, that the tax lien was a cloud upon the plaintiff’s title, that the deed, if issued, would not show that the assessment was void, that equitable consideration of a disturbance of revenues was absent, in that the assessment was not made by a competent authority which had irregularly exercised its power, and that the holding in Crocker v. Scott upon the facts in that case was correct.
However, in Crocker v. Scott, the trial court issued an injunction pendente lite upon verified complaint, and on appeal from that action the Supreme Court held that the complaint showed that the taxing authorities had fully complied with the law, that the tax was legally assessed and that the facts alleged were insufficient to support the injunction, while in the Las Animas and Pierce Cases it was held that the taxing officers acted without having acquired jurisdiction, and the injunctions were properly issued.
In the proceeding before us, it appearing that the assessor and the board of supervisors proceeded not merely in an irregular manner but that they failed to acquire jurisdiction to assess or levy the assessments, and that further action on the part of the tax collector to sell the lands of the city to the state would result in uselessly adding to the cloud upon the title to the lands by imposing thereon additional apparent burdens of penalties, interest, and costs of sale, and the added threat of ultimate sale and deed by the state, based upon a void foundation, and that the city should not be compelled to suffer the cloud to remain on the title to its lands for five years (Spring Valley Water Co. v. Planer, supra; Hopkins v. Southern Cal. Telephone Co., supra; Pasadena Park Imp. Co. v. Lelande, supra; Pierce v. Los Angeles, supra; Las Animas, etc., Land Co. v. Preciado, supra), there is no reason why the court should not now exercise its equitable power.
Other contentions are made by the parties, but as the points above discussed arise only upon demurrer, and dispose of petitioner’s application, we do not feel it necessary to consider them, but leave them for determination in the first instance by the trial court, should the district answer the complaint and raise appropriate issues of facts.
The writ is denied.
We concur: WORKS, P. J.; THOMPSON, J.