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PER CURIAM.

This is an action Co., 7 Cal. 121, it was held, in an action for brought by plaintiff, a banking corporation, damages for trespass, that under a law proto recover from the city of Los Angeles the riding that “no person shall sue a county in sum of $1,235.96, alleged to have been paid any case, for any demand, unless he or by plaintiff under protest for illegal taxes she shall first present his or her claim to for the fiscal year 1902–03. A general de the board of supervisors for allowance, murrer for want of facts sufficient to con * * " it was essential to plaintiff's restitute a cause of action was interposed to covery that the complaint contain an averthe complaint and overruled. An answer ment of presentation of the claim. The denying certain allegations of the complaint point was made in that case that the section having been filed, the cause was tried, and only applied to actions ex contractu, but the judgment went for plaintiff. Defendant ap- court held it applicable in all cases, and held peals upon the judgment roll.

the intention of the Legislature to have been It is contended that the complaint is fatal to prevent the revenue of the county from be. ly defective because it fails to aver that be ing consumed in litigation, by providing that fore the commencement of the action plain an opportunity of amicable adjustment should tiff presented any claim or demand for the be first afforded to the county, before it amount sought to be recovered, or any por could be charged with the costs of a suit. tion thereof, to the city council of defendant. In People v. Supervisors, 28 Cal. 429, it was

The complaint of plaintiff contained no al declared that a claimant has no cause of aclegation whatever as to the presentation of tion against a county for the recovery of any such claim or demand to the city coun money until he has presented his claim or cil, or anything to show that the matter was demand to the board of supervisors for alin any way brought to the attention of that lowance. In Rhoda v. Alameda Co., 52 Cal. body before suit, except in so far as it was 350, an action for damages for injury to presented to it sitting and acting as a board plaintiff's building, judgment went for plainof equalization on an application for the re tiff by default, and on appeal the judgment duction of the assessment. The freeholders' was reversed solely because there was, in charter of the city contains the following the opinion of the court, no sufficient allegaprovisions in the matter of claims and de tion of the presentation of a claim prior to inands:

suit. In Bigelow v. Los Angeles, 141 Cal. “Sec. 208. All claims and demands what 503, 75 Pac. 111, it was declared that, in ever against the city of Los Angeles, excej,t order that a suit might be treated as one interest on bonds and bonds of the funded for damages, it was absolutely necessary undebt, shall be paid only on demands as here der the charter that a claim therefor should in provided for.

have been presented to the city council. In "Sec. 209. Said demands,

shall Alden v. Alameda Co., 43 Cal. 270, the acbe presented to the council on forms and

tion was on a judgment, and there was no alblanks to be provided by the city clerk, and legation in the complaint of the presentation shall be referred to its committee on finance. of a claim to the board of supervisors. A The said committee shall, by indorsement demurrer for want of facts was sustained, thereon, approve or reject the same, in whole and this court held that the statute prohibitor in part. The council shall then consider ing suit "in any case or for any demand, the said demands and the action of said com- without first presenting the claim to the mittee thereon, and shall, if the same be just board, was sufficiently comprehensive to inand legal, approve the same; or may, if it so clude a cause of action founded on a judgdetermine, approve in part or reject the ment against the county.” It was here again whole.

said that the provision was intended to pre"Sec. 216. No payment can be made from vent the county from being harassed by the city treasury, or out of the public funds needless and expensive litigation. In Arbios of said city, unless the same he specially au v. County of San Bernardino, 110 Cal. 553, thorized by law or this charter, nor unless 42 Pac. 1080, it was again said that statutes the demand which is paid be audited as in l'equiring the presentation of claims prior to this charter provided. * * *

suit are framed with the purpose of avoiding "Sec. 2:2. No suit shall be brought upon useless expense in litigation, and to give to any claim for money or damages against the the county ample opportunity to avoid such city of Los Angeles, * * * until a de expense. These cases show that it is the mand for the same has been presented as policy of the law declared in such provisions herein provided, and rejected in whole or that the public corporation shall always be in part. *

given an opportunity to pay before being subU’nder provisions of law of this character, jected to an action upon any money demand, it has always been held in this state that the They further show that a strict compliance presentation of a demand, in the manner with such conditions has always been insistprovided, was a necessary prerequisite to the ed on by this court, and that they apply to maintenance of a suit against a public cor all classes of claims not expressly excepted poration to recover money, and that a com in the law itself. plaint containing no such allegation fails to While it is true, so far as we have discovstate a cause of action. In JcCann v. Sierra ered, that the question bas never been dis

cussed in connection with a claim for the contention. The money paid as taxes under recorery of taxes paid under protest, we can protest became the property of the city, subperceive no material difference between such ject to no trust whatever. The taxpayer's a claim and claims of the character consider-right against the city in the matter was ed in some of the decisions above cited. thenceforth only such as was conferred eiSuch claims are often settled and paid when ther by section 3819, Pol. Code, or the ordipresented, and the presumption is that they nance provision authorizing an action for the always will be so paid, if they are just. recovery of the amount of taxes paid upon The policy of the law applies as well to them a void assessment. In no sense of the words as to other demands against a city, and the is this an action to enforce a trust. reasons for the rule when applied to such The making of the application for the rea claim are as cogent as when applied to any duction of the assessment by plaintiff to the other claim. We find in the law no method city council sitting as a board of equalizaby which the city can voluntarily refund tion, prior to the payment by it of the money taxes illegally collected, without the pres sought to be recovered, was, of course, not entation of a claim therefor, and if these the presentation of any claim or demand so provisions of the charter are not applicable, far as the alleged cause of action here init would follow that the city must in every volved was concerned. There is no force in case be subjected to the costs of a suit, even the contention that the council could not though the proper officers consider the claim have allowed the claim, because the action a just and legal one, and are willing to pay of the board of equalization in refusing to the same.

reduce the assessment was conclusive as to It is doubtful whether section 3819, Pol. the validity of the assessment. As to matCode, relating to the recovery by suit of ters concerning which the action of such a taxes paid under protest, is applicable to the board is conclusive, there is no power of recity of Los Angeles. It is in terms limited to view anywhere, even in an action to recover the matter of state and county taxes. Sec the tax paid under protest, and plaintiff's tion 46 of the city charter, providing that contention in this regard would leave it with“the mode and manner of collecting such out any remedy whatever. It cannot be held municipal taxes, and enforcing such tax lien, that the making of a proper demand here and the proceedings thereafter, shall sub would have been a vain and useless thing. stantially be the same as the mode and man and therefore was not required. We are ner at the time prescribed by law for the satisfied that the city council had jurisdiccollection of state and county taxes in said tion to allow the claim if properly presentcounty," does not necessarily make the pro ed. The fact that the board of equalizavisions of section 3819, Pol. Code, applicable. tion had several months before refused to Although this section, enacted several years reduce the assessment does not conclusively after the adoption of the Los Angeles char establish that the city would not have alter, was placed in the chapter entitled “Col lowed the claim; but, however that may be, lection of property taxes," it, strictly speak the presentation of the claim or demand is, ing, has nothing to do with the mode and under the charter, a prerequisite to suit. manner of collecting taxes or enforcing the We can see no escape from the conclusion tax lien or with the proceedings thereafter," that the complaint, by reason of its failure within the meaning of those words in the to allege a presentation of a claim to the city above provision. But, assuming that the council, must be held insufficient to support charter provision should be read as making the judgment. it applicable, it must be construed subject to The judgment is reversed, and the cause the provisions of the charter as to claims and remanded, with leave to plaintiff to amend demands against the city. Such a construc its complaint within such time as may be tion woull require presentation of the claims allowed therefor by the trial court. before suit. A provision practically the same as section 3519, Pol. Code, was contained in • MCFARLAND, J. (dissenting). I dissent an ordinance a lopted by the city council of and am of opinion that the judgment ought to Los Angeles. If we assume that the provi- | be affirnied. sion must be construed as authorizing suit This is an action brought by plaintiff, a without any prior presentation of the claim banking corporation, to recover from the city to the city council, the ordinance provision of Los Angeles the sum of $1,235.96 alleged must necessarily be held void because in con to have been paid by plaintiff under protest Sict with the superior charter provisions. for illegal taxes for the fiscal year 1902-3. We do not think, however, that it must be so Judgment went for plaintiff, and from the construed. It may very reasonably be con judgment defendant appeals. struel as simply giving a legal claim against Defendant demurred to the complaint upthe city, to be presented to the city council on the sole ground that it does not state facts before suit in the same manner that all other sufficient to constitute a cause of action. It claims are required to be presented.

did not demur upon any special ground, nor It is contended that there was an involun did it interpose any pleading in the nature tary trust against the city, rendering a de of a plea in abatement. The general demurmand unnecessary. We see no force in this rer was overruled, and defendant filed an au

swer in which some of the material allega- | time left with him a written protest in due tions of the complaint were denied. A jury | form, claiming that the assessment and levy was waived, and the court made findings cor made for said $352,997.30 was illegal and ering all the issues. No motion for a new void, etc. trial was made. There is no bill of excep From the foregoing it is entirely clear that tions or statement, and therefore there is no the plaintiff had, upon the real merits, a evidence before us, and no point us to any most just cause of action against the defenderror committed at the trial. All the points ant. To allow the city to retain money paid made by appellant for a reversal arise upon by plaintiff as taxes on the city's own propthe general demurrer; appellant contenuing erty would be to violate any admissible conthat the complaint does not state a cause of ception of what is right and just. Indeed, action.

defendant makes no pretense of a defense on The material facts as alleged in the com the merits, but defends only on the ground plaint and found by the court which are nec that the complaint is fatally defective. essary to be here stated, and which must on The main contention of appellant on the this appeal be taken as true, are briefly i general demurrer, and the only one that these: In April, 1902, plaintiff gave to the really calls for much discussion, is that the (ity assessor of the city of Los Angeles a complaint is fatally defective because it fails verified statement in due form of all the per to aver that before the commencement of the sonal property which it owned, possessed, or action respondent presented any claim or controlleil at 12 o'clock m, on the first Non-demand for the amount sought to be recovday of March, 1902. This statement showed ered to the city council of appellant, which that all the money which plaintiff had on demand, appellant contends, was made necessaid first Monday was $200,+92.70, and the sary by sections 208, 209, and 222 of the city court found that "said statement was true charter. Section 208 is as follows: "AN and correct, and the plaintiff did not have in claims or demands whatever against the city its possession or under its control any other, of Los Angeles, except interest coupons on further, or different sum of money.” But bonds and bonds of the funded debt, shall be plaintiff, in addition to its general banking | paid only on demands as herein

, a deposit department which was entirely dis mands shall be presented to the council and tinct from its general banking business, and be referred to the committee on finance, from other vaults in which it kept money re which committee shall by indorsement there(eived from its general depositors. That on on approve or reject the same in whole or in said first Monday of March, 1902, the de part, and the demand small then go to the fendant by its treasurer had in vault No. 19 council for action. "The council shall then of said safe deposit department the sum of

consider the said demands and the action of $:352,997.30 of the moneys belonging to the said committee thereon, and shall, if the city. That said moneys were a special de same be just and legal, approve the same, or posit and were not in any way commingled may, if it so determine, approve in part or with other deposits in plaintiff's bank, but reject the whole." Section 222 provides that: were kept separate and distinct from all oth "Yo suit shall be brought on any claim for er moneys. And the court finds that "said money or damages against the city of Los city money, $332,997.30, was wholly and ex Angeles

until a demand for the clusively within the control of the said city same has been presented as herein provided of Los Angeles through its officer the said and rejected in whole or in part." And there city treasurer, W. H. Workman.”. Neverthe is in the complaint in the case at bar no less, the city assessor arbitrarily assessed the averment of the formal demand made in complaintiff, against the latter's will and protest, pliance with said section. It is apparent that for the said $352,997.30, being the said city's this defense, founded upon a want of avermoney as aforesaid. The city tax on said ment of demand, is, in the extreme sense, sum of money was $1,235.96, the money in technical. It seeks to avoid a just judgment volved in this action. The city council of by taking refuge behind a general provision defendant met as a board of equalization in of law not intended for such purpose. But August, 19902, and the plaintiff filed with them while it is true that a technical defense cana verified petition for the correction of said not be ignored, and must be maintained, when assessment by reducing the amount of money it blocks the way of obtaining a judgment on assessed to plaintiff to the extent of said a meritorious cause of action by an obstacle $:332.997.30, and presented the facts relative so complete that it cannot be surmounted, or thereto as above stateil; but the board refus circumvented, or in any manner evadel, stili ed to make any reduction. Afterwards the the general rule is, as stated by Baldwin, J., tax collector of defendant demandled of plain in Roland v. Kreyenhagen, 18 Cal. 457, that tiff the payment of the said $1,2:35.96 and courts are justified in “regarding mere techthreatened to levy, etr.; and on November nicalities as obstacles to be avoided, rather 18, 1:22, a few days before said tax would than as principles to which effect is to be Hive become delinquent, plaintiff paid said given in derogation of substantial rights." taxes to the tax collector, and at the same A court will not maintain such a technicality

*

unless there is no way of escaping it, unless the latter evidently refers to the state law it effectually closes every avenue through in force at the time" of any payment of which the just judgment could be reached ; taxes under protest. And we are also satisand we do not think that the technical de fied that the language "mode and manner of fense here under discussion is of that char collecting such municipal taxes," and "the acter.

proceedings thereafter," cover the whole Respondent makes numerous answers to scheme of taxation and include the refundappellant's contention, as, for instance, that | ing of taxes illegally collected. But subthie point of want of averment of demand stantially the same provision is found in seccannot be reached by a general demurrer, but | tion 55 of the said ordinance of the city, No. should have been presented by special de 2.818. That section is as follows: “At any murrer or plea in abatement; that an invol time after the assessment book has been reuntary trust was created agilirst the city ceived by the city tax and license collector which rendered il demani umerossary: that and the taxes have become payable, the ownthe verified petition by respondent before the er of any property assessed therein who may vity council sitting as a board of equalizil-claim that the assessment is void in whole tion was, in substance, a sufficient demand;

or in part may pay the same to the city tax that after the completion of the assessment and license collector under protest, which book after equalization the respondent had protest shall be in writing and shall specify no demand within the meaning of the said ; whether the whole assessment is claimed to provision relating to presentation and de- , be void, or if a part only, what portion, and mand; and that in the case at bar it am- ; in either case the grounds upon which such Duly appears that the demand here insisted claim is founded, and when so paid under on would have been a vain thing and there. protest the payment shall in no case be refore not required. We think it just to coun garded as voluntary, and such owner may sel for respondeut to mention the foregoing : at any time within six months after such Joints made by them in their elaborate brief; : payment bring an action against the city in but we do not consider it necessary to pass any court of competent jurisdiction to reupon these points, because we think that an cover back the taxes so paid under protest, other contention made by them must be main and if it shall be the judgment that the astained to wit that the contention of ap sessment on the part thereof referred to in pellant as to the demand is governed by sec the protest, was void on the ground specified tion 3S19 of the Political Code, and by the in the protest, judgment shall be entereil ordinance of the city of Los Angeles desig. against the city therefor." Whether or not nated as No. 3,118 new series, Section 16 i the right of a party to get back illegal taxes of the city charter provides that “the mode ; paid under protest couldi, in the absence of anil manner of collecting such municipal other legislation on the subject, be propertaxes, and enforcing such tax lien, and the ly brought within the general category of proceedings thereafter, shall substantially be “claims and demands," need not be here disthe same as the mode and manner at the time cussed. The ordinance above quoted, and prescribed by law for the collection of state section 3819, Pol. Code, deal expressly with and county taxes in said county." (The ital the exceptional matter of taxes paid under ics are ours. And at the time of the oc protest, and afford an independent remedy. currences under which the present litigation | There is no provision for a demand: the only arose, section 3819 of the Political Code, or restriction being that the action must be consuch of it as is necessary to be here quoted, menced within six months after such payWas as follows: "And at any time after the ment." The protest gives the defendant full assessment book has been received by the notice of the character and amount of the tax collector, and the taxes have become pay- ! claim. And a further demand would be of able, the owner of any property assessed · no benefit. This view is fully supported by therein, who may claim that the assessment authorities cited by respondent, and particuis void in whole or in part, may pay the larly by the case of Western Ranches

r. same to the tax collector under protest, i Custer (ounty, 89 Fed. 77. That was an acwhich protest shall be in writing. * * tion to recover taxes pail under protest, and And when so paid under protest, the pay "the defendant asks judgment upon the ment shall in no case be regarded as yolun ground that the complaint does not state a tary payment, and such owner may at ans : cause of action, in this, that it does not aptime within six months after such payment pear that the plaintif ever presented his brins an action against the county, in the claim to the boaril of county commissioner's superior court, to recover back the tax so of Custer counts for allowance, as required, paid under protest: and if it shall be adjudg. . it is claimed, by the statute law of Montana, ed that the assessment, or the part thereof before an action could be maintained upon referred to in the protest, was void on the the same." Bu a statute of Montana proground specitied in the protest, judgment vided that in all cases of a levy of taxes shall be entered against such county there which is deemed unlawfully the party for." While sertion 3819 of the Political whose property is taxel, such party may paly (ode was enacte subsequently to the adoj the same under protest, and may bring an tion of the said section 10 of the charter, yet ; action to recover back the amouni so paid,

and that, if it be determined that the tax so election to be held within 60 days after the or paid was illegal, may recover a judgment for ganization of the special commission, is directory the amount. The court held that this stat

merely, so that, if the election within that time

is prevented by injunction, it may be held at a ute gave a special remedy as to taxes paid reasonable time after the injunction is removed. under protest, and that "a condition not nam 2 CERTIORARI-REMEDY BY APPEAL. ed in the statute is not required," and the The right of appeal from the granting of an

injunction excludes the right to a writ of cerjudge who delivered the opinion said: "For

tiorari. these reasons, I hold that there was no ne

[Ed. Note.-For cases in point, see Cent. Dig. cessity for presenting this claim of plainti tr vol. 9, Certiorari, & 5.] to the board of county commissioners of 3. PROHIBITION-REMEDY BY APPEAL. Custer county for allowance before plaintiff Writ of probibition will not be granted, could maintain this action. The tax being where, by appeal, which can be advanced to a

speedy hearing, the whole case can be taken up an illegal one under the facts set forth in

and reasonably decided on the merits. the answer, and paid under protest, the

[Ed. Note.-For cases in point, see Cent. Dig plaintiff was entitled to have the same re vol. 40, Prohibition, 88 419.] tunded to him. The complaint under the

In Bank. Application by J. W. Herbert statute cited above stated a cause of, action,

and others for writ of prohibition to the suand it was not necessary that it should be

perior court, Fresno county; Hon. II. Z. Ausshown that there was any demand upon the

tin, Judge. Writ denied. county commissioners for a refunding of the same."

Hannah & Miller and C. G. Lamberson, for The contention of the appellant that the petitioners. Frank H. Short, for respondent. passage of said ordinance by the city council relative to the repayment of taxes under BEATTY, C. J. The court has had this protest was ultra vires and void is not main matter under advisement, and we are all of tainable. The city had full power over the the opinion that the provision of the statute assessment and collection of municipal taxes, for submitting to the voters of the district and such power included the manner of col affected by the question of detachment from lecting them under protest. The authority Fresno county, requiring the election to be to refund is clearly an incident to the power held within 60 days after the organization of to collect. The provision, as to paying under the special commission, is directory merely; protest is a salutary one and beneficial to that it is not essential that the election sbould both parties. If the protested tax is finally be held within 60 days; and that, if it is held to be good, the municipality is not re prevented by the injunction, it may be held tarded in the collection of its revenue; and, afterwards, at any reasonable time after the if it is held to be illegal, the protestant bas injunction is removed. We are satisfied also a remedy without running the hazard of that it was an error on the part of this court losing his property by a refusal to pay in to issue the writ of certiorari in this case; the first instance.

the fact being that there is an appeal from There is no merit in the contention that the injunction, and the right to appeal excludthe taxes sought to be recovered were not ing the right to a writ of certiorari. paid under duress, and that the payment was As to the writ of prohibition, we think that therefore voluntary. The common-law rule is unnecessary and inadvisable under the ciras to distress of person or property does not cumstances, because by an appeal from the apply to a statute expressly giving the right order granting an injunction, which would be to pay under protest. Stewart v. County advanced to a speedy hearing by the court of Alameda, 142 Cal. 660, 662, 663, 76 Pac. on the application of either party, we can 481, and cases there cited; Western Ranches take up the whole case and decide it on its v. Custer County, supra.

merits before any election is held, and thus There are no other points calling for spe prevent any complications which are apprecial notice.

hended by reason of the holding of an elecThe judgment appealed from should be af. tion while the question is undetermined as to firmed.

whether the act is constitutional or not. For

these reasons we have decided to set aside We concur: HENSHAW, J.; LORIGAN, J. the writ of certiorari granted in the case and

to deny the writ of probibition, suggesting to

the parties that they bring the matter up by (7 Cal. Unrep. 336)

an appeal as speedily as they like, when the HERBERT et al. v. SUPERIOR COURT

court will advance it to an early hearing, OF FRESNO COUNTY, (S. F. 4,810.)

that it may be decided at once upon the mer.

its, and the election held as soon afterwards (Supreme Court of California. May 21, 1907.)

as the necessary arrangements can be made. 1. COUNTIES-DIVISION-ELECTION.

The order of the court is : The writ of cerThe provision of the statute for submission to the voters of the district affected by the ques

tiorari be discharged, and writ of probibition tion of detachment from a county, requiring the denied.

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