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Vol. I.]
HUNTINGTON v. Cent. Pac. R. R. Co.

[No. 3. This is certainly neither literally nor substantially the mode of assessing prescribed by the statute ; and, as the application is heard on the bill alone, the averments of the bill must be taken as true. Besides, the description is defective. It gives so many miles of railroad without regard to the width of the land occupied, or to any specific location. The bill shows that the land occupied varies in width from 100 to 400 feet, and that it has a superstructure of ties and iron rails forming a track for cars to run on, depots, stations, &c. The description adopted by the assessor is no more definite than that in Kelsey v. Abbott, 13 Cal. 616, 619, which was held by the supreme court of California to be insufficient, and the assessment consequently void.

But we do not find it necessary to determine whether this defect is fatal. The assessment, as equalized by the state board set out in the bill, shows some curious results. The assessment as equalized in San Joaquin County is twice, and in Placer, more than three times as much per mile as in Santa Clara and Alameda counties, and that of Placer County two and one half times as great as in Nevada County. And the value of the rolling stock as equalized is not apportioned according to the number of miles in each county. But we are not prepared to say that the court could remedy an erroneous or unequal assessment, provided that it is made in the proper mode, upon the proper principle, and in other respects properly made. Doubtless it could not. This assessment, in our judgment, has more radical defects. It is not made in the way prescribed by the statute. It is not only not formally, but is not even substantially such an assessment as the statute requires. The statute, for some wise reason, it must be presumed, expressly requires that the interest in the land and the improvements "must" be separately assessed, and separately equalized. This has not been done, and these assessments could not be separately equalized, because the board of equalization would have no data in view of the mode of assessment by which it could be determined what part had been assessed to the land, or what to the improvements.

In states where the statutes contain provisions similar to those in this State, defining real estate for the purposes of taxation, and as to the mode and principle of assessing real estate, as in New York, it has been repeatedly held that the railroads are taxable “ as real estate in the several towns in which such real estate is to be taxed upon its actual value at the time of the assessment, whether that value is more or less than the original cost thereof;” that “ the assessors are simply to ascertain the value of the land, and of the erections or fixtures thereon, irrespective of the consideration whether the road is well or ill-managed, whether it is profitable to the stockholders or otherwise. Such property is to be appraised in the same manner as the adjacent lands of individuals, and without reference to other parts of the railway.” Mohawk of Hudson R. R. Co. v. Clute, 4 Paige, 395; Alb. f Sch. R. R. Co. v. Osborn, 12 Barb. 225; A. & W. R. Co. v. Town of Canaan, 16 Barb. 244; see, also, S. & M. R. Co. v. Morgan Co. 14 nl. 163; Tax Cases, 12 Gill & John. 117. Decisions under different statutes of course have no application.

The statute of New York, under which the decisions cited were made, gives a similar definition of real estate to that cited from the Code of California, and provides, that “ All real and personal estate liable to

Vol. I.

HUNTINGTON v. Cent. Pac. R. R. Co.

Vol. I.]

No. 3.

taxation shall be estimated and assessed by the assessors, at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor." (Stat. N. Y. 1851, 333.) Section 3627 of the Political Code of California is substantially the same. It provides that “All property must be assessed at its full cash value ;” and section 3617 provides that “ The term · full cash value,' means the amount at which the property would be appraised if taken in payment of a just debt due from a solvent debtor.” And the assessor must ascertain “ all the property in his county subject to taxation, and must assess such property to the persons who own, claim, have the possession or control thereof."

That is to say, the property in each county must be assessed in that county, without reference to property in any other county, and the value must be estimated at the amount at which that particular land and improvements thereon would be " appraised if taken in payment of a just debt due from a solvent debtor," if taken by itself out of its connections. For it is that portion only that can be taxed and that can be sold, in any given county. In adopting the provisions of New York, the construction before put upon the statutes by the courts of New York must be presumed to have been contemplated.

The bill alleges that the railroad and its appurtenances were not assessed or equalized upon that principle in any of the counties whose collectors are made parties, but that, on the contrary, they “ lumped said lands and superstructure, and considered them as one thing, and ascertained their value by taking into account the franchises of said company and their value, the cost of construction, fills, embankments, tunnels, cuts, and snow-sheds, and the fact that said road extended from San Jose, in the State of California, to Ogden, in the Territory of Utah — a distance of about eight hundred and seventy-five miles — and there formed a junction with the Union Pacific, and constitutes a part of a line of railroads extending from the Pacific to the Atlantic Ocean, and the amount of business transacted by said plaintiff on said road, and the profits derived by said plaintiff therefrom; all of which as complainants aver, was contrary to the rules prescribed by the statute of such State in such cases made and provided.” If this is so, — and, for the purposes of this motion heard upon the bill alone, the allegation must be taken as true — the assessment was made in direct violation of the provisions of the statute.

Upon the hypothesis alleged, many elements were considered which the statute does not contemplate. In addition to other improper elements considered, such an assessment would be equivalent to taking the valuation of an undivided part of the whole road extending entirely across two states and a part of a territory, and in principle, like the case of S. f M. R. Co. v. Morgan Co. 14 ii. 163, it would be taking into consideration value given to it by its connection with other property outside of the said counties, and even outside the state in which the assessments were made; or, in other words, assessing the entire road, including property ouside of the several counties and state where the assessments were made, and then taking a proportionate part of the whole, corresponding to the number of miles of road situate in the particular county where the assessment is made. If the assessment had been made in the mode, Vol. I.]

[No. 3.

HUNTINGTON v. Cent. Pac. R. R. Co.

on 3650 % or in the namely, by pursu

and upon the principle prescribed by the statute, without actual fraud, it would, doubtless, be incompetent for the court to inquire into any error of judgment in ascertaining the value, however gross it might be.

The law has devolved upon the assessors the sole duty of determining the amount, and upon the boards of equalization the duty and power of equalizing, and their determination is final, provided they act in the mode, and upon the principle which the statute requires. But they cannot depart from the mode or the principle prescribed, for when they do this, they act without authority. The court can only inquire as to whether they have pursued the statute. In this case the allegations of the bill being taken as true, as they must be, as now presented, it is apparent that the assessment has not been made or equalized in pursuance of the statute, either in the mode of assessment, namely, by assessing the land and improvements separately, or in the principle adopted for ascertaining the value. Section 3650 of the Political Code expressly provides for listing. “All personal property showing the number, kind, and quality ; but a failure to enumerate in detail such personal property does not invalidate the assessment ;” and section 3807 provides that “When land is sold for taxes correctly imposed, as the property of a particular person, no misnomer of the owner, or supposed owner, or other mistake relating to the OWNERSHIP thereof, affects the sale, or renders it void or voidable.” Thus it is provided, that a failure to mention in detail personal property, or to name the true owner of real estate otherwise " correctly " assessed, shall not vitiate the assessment; but we find no saving clause to protect an assessment substantially defective by a failure to assess in the mode, as to assess the land and improvements separately, and upon the principle prescribed by the statute — such defects as now appear to exist in this assessment. The maxim expressio unius exclusio alterius est, would seem to be peculiarly applicable.

It has often been held by the supreme court of California and the courts of other states, that taxes and street assessments not assessed in strict accordance with the provisions of the statute are void. The statute confers the power, and it affords the measure of power. Smith v. Davis, 30 Cal. 537 ; Kelsey v. Abbott, 13 Cal. 618; M088 v. Shear, 25 Cal. 38; Blatner v. Davis, 32 Cal. 329; Taylor v. Donner, 31 Cal. 482 ; People v. Sneath of Arnold, 28 Cal. 615; Falkner v. Hunt, 16 Cal. 167, 172-3 ; see, also, Shimmin v. Inman, 26 Me. 228; Willey v. Scoville's Lessees, 9 Ohio, 13; Blackwell on Tax Titles, 176.

In our judgment, the several assessments in question have not been made in accordance with the provisions of the statute in the particulars indicated, and on those grounds they are void.

But the mere fact alone, that the tax levied is void, affords no ground for equitable relief. Are there any other circumstances alleged which present a proper case for equitable cognizance? The bill alleges that the several tax-collectors, who are defendants, threaten to collect and will collect the said several taxes by forced sale of the said railroad, fixtures, and appurtenances, unless voluntarily paid by said Central Pacific Railroad Company; that they will sell the same and give certificates of sale and deeds to the purchasers, under the laws of the State ; that said deeds will be conclusive evidence of the validity of said assessments, and the (No. 3.

Vol. I.]

HUNTINGTON v. CENT. Pac. R. R. Co.

regularity of the proceedings thereon, and in that event the capital stock of said company owned by defendant will become valueless; or, if the said defendant, the Central Pacific Railroad Company, should pay said taxes to prevent said sale, the complainants will be deprived of a proper portion of dividends, &c. The Political Code provides for sales, for taxes, and that certificates of sales, and deeds containing certain enumerated recitals shall be given to the purchasers ; and section 3786 provides, that the deed so given shall be “ primary evidence" (that is to say, prima facie evidence, or “ that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence." See Civ. Pro. 1833] that:

“ 1. The property was assessed as required by law;
“ 2. The property was equalized as required by law;
“ 3. The taxes were levied in accordance with law;
“ 4. The taxes were not paid ;

“ 5. At a proper time and place the property was sold as prescribed by law, and by the proper officer;

“ 6. The property was not redeemed ;
“ 7. The person who executed the deed was the proper officer ;

“ 8. Where the real estate was sold to pay taxes on personal property, that the real estate belonged to the person liable to pay the tax.”

“ And conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed.” (Sec. 3787).

That such a deed would cast a cloud upon the title, if nothing worse, there can be no doubt. It would only be necessary for the plaintiff to produce his deed to show title. It would then devolve upon the defendant to show affirmatively, by evidence dehors the deed, such fatal defects in the assessment as it is admissible to show under the provisions cited, the deed itself being conclusive as to other particulars; and this brings it within the test by which the question is determined whether a deed would be a cloud upon title, established in this State by the decisions of the supreme court. « The true test, as we conceive, by which the question, whether a deed would cast a cloud upon the title of the plaintiff, may be determined, is this :

" Would the owner of the property in an action of ejectment, brought by the adverse party, founded on the deed, be required to offer evidence to defeat the recovery? If such proof would be necessary, the cloud would exist ; if no proof would be necessary, no shade would be cast by the presence of the deed.” Pixley v. Huggins, 15 Cal. 133-4 ; Thompson v. Lynch, 29 Cal. 189; Hager v. Shindler, 29 Cal. 47; Arrington v. Liscom, 34 Cal. 365.

This test is also recognized by implication by the United States supreme court, in Hannewinkle v. Georgetown, 15 Wall. 548. It is only necessary to introduce the deed under the statute to make out a title. It is not necessary to introduce the record of the prior proceedings, which show the invalidity of the assessment. In such cases the court will interfere by injunction to prevent a cloud being cast upon the title. The court will enjoin the casting of a cloud upon a title in cases wherein the cloud itself, when cast, would be removed. Palmer v. Boling, 8 Cal. 388; Fremont v. Vol. I.)

LANGABER v. FAIRBURY, PONTIAC, AND N. W. R. R. [No. 3. Boling, 11 Cal. 380; Pixley v. Huggins, 15 Cal. 127 ; Hibernia S. f L. Soc. v. Ordway, 38 Cal. 681–2; Shattuck v. Carson, 2 Cal. 588; Guy v. Hermance, 5 Cal. 73; England v. Lewis, 25 Cal. 337; Alverson v. Jones, 10 Cal. 9–11; Pettit v. Shepherd, 5 Paige, 501. In Dow8 v. City of Chicago, 11 Wal. 112, where a bill was filed by a stockholder of the Union National Bank against the bank and the city, to restrain the collection of a tax levied upon the stock, the complainant alleged only the invalidity of the assessment, without any special circumstances of equitable cognizance. The bill was not sustained expressly on this ground. The bank filed a cross-bill, in which it alleged that a sale of the stock would subject it to a multitude of suits, &c. The court, in deciding the case, say in regard to the cross-bill filed by the bank : “ Were it an original bill, the jurisdiction of the court might be sustained on that ground. But as a cross-bill, it must follow the fate of the original bill.This case is, therefore, authority in favor of the proposition that a bill alleging equitable circumstances of a similar character to those alleged in this bill, in addition to the invalidity of the tax, will be sustained. We think that an act that results in casting a cloud upon the title of real estate is an ordinary ground of equitable relief, and that this bill, in addition to the invalidity of the tax, shows special circumstances sufficient to justify an injunction.

Let an injunction issue, restraining proceedings, in pursuance of the prayer of the bill, until further ordered by the court.

HOFFMAN, J., concurred.

SUPREME COURT OF ILLINOIS.

ISSUING INJUNCTION ON SUNDAY. - ORIGIN OF THE RULE THAT SUNDAY

IS DIES NON JURIDICUS.

JAMES LANGABER V. THE FAIRBURY, PONTIAC, AND N. W.

R. R. CO. ET AL.

In a case of necessity a court may issue a writ of injunction on Sunday. OPINION by BREESE, J. This was a bill in chancery in the Livingston circuit court, praying for a writ of injunction to restrain the Fairbury, Pontiac, and Northwestern Railway Company from taking possession of one of the principal streets (Walnut) in the incorporated town of Fairbury, for the purpose of grading, tieing and ironing the same for the track of their railroad. The bill is filed by a large property owner on the street to be taken by the railway, and it alleges that the company, immediately after twelve o'clock of the night of Saturday, with a large force of men had taken violent possession of the street, for the express and avowed purpose of finishing their track through its entire length before the next Monday morning, and that they had selected Sunday for the work for the express purpose of evading an injunction and avoiding the process of court, and for the purpose of obtaining and holding the street without paying for it, or the damages thereby occasioned to the property owners upon it.

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