Cowell v. Washburn

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an appeal from an order refusing to grant an injunction to restrain the defendant, who is Tax Collector of the City of San Francisco, from selling the property described in the complaint for taxes. The application was made on the complaint alone. The sale sought to be enjoined is for taxes due for the fiscal year ending June 30th, 1857, and the plaintiff alleges that he has a deed, executed in pursuance of a sale for taxes upon the same property due for the fiscal year ending June 30th, 1858. There is no averment that the taxes for 1856-7 have ever been paid, but the plaintiff contends that by his purchase and deed under the sale for taxes due the subsequent year he took the title of the property free from all prior claims for taxes; that the taxes of 1857 were necessarily and by operation of law included in the taxes of the subsequent year, and could not be separated.

It seems that the Tax Collector in this case is proceeding to sell under the provisions of the Act of March 22d, 1859 (Stat. of 1859, 123), the first section of which legalizes the tax list of the City and County of San Francisco for the fiscal year ending June 30th, 1857, and the second and third sections legalize the list for 1858 and 1859. Sec. 9 authorizes the Tax Collector to collect by sale any tax assessed in any of the lists mentioned in Secs. 1, 2, and 3, and, with the subsequent sections, provides how, and in what manner, the proceedings shall be conducted for enforcing the collection. Sec. 96 of the Revenue Law of 1854 (Stat. 1854, 112), provides that after the final settlement on the first day of March, all delinquent taxes “ shall be placed in the tax fist of the succeeding year.” So the Revenue Law of 1857 provides, by Sec. 46, that the delinquent taxes shall be added by the Clerk of the Board to the succeeding assessment roll. The complaint in this case does not show whether the delinquent taxes for 1857 were thus placed or added to the tax fist of the succeeding year or not.

Sec. 99 of the Revenue Law of 1854, provides that the lien of *522 the State for ah taxes for State and county purposes shall attach on all real and personal estate on the first day of March, annually, “ and such hen, to the absolute exclusion of all other hens, shah continue till all taxes thereon shall be paid,” and it was under this law that the tax was assessed, to prevent the enforcement of which the injunction is asked. This section clearly established a tax hen upon the property, which continued until the taxes were paid, and the purchaser under a sale for taxes levied in a subsequent year, took his tax title subject to this prior hen for taxes. It is true, that these taxes, when dehnquent, could and should have been put in with those of the succeeding year, and if again dehnquent, the property could have been sold for the taxes of both years ; but if the officer upon whom the duty was imposed of thus placing it in the hst of the succeeding year neglected to do so, such neglect did not divest or destroy the hen established by the law. The law of 1859 clearly recognizes the separate existence of the taxes for each of the several years mentioned in Secs. 1, 2, and 3 ; but even if it had not, we do not conceive that it would make any difference.

The Court properly refused the injunction, and the order is therefore affirmed.