Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-02-14

United States does not exist in any or all OF the ue
partnents of the Government" and "if the Courts
themselves can give Judgment for less than the law
full demand OF the Government, our form OF govern
ment is failure" Now, what is the sum de-
mauded in the suits" and what is the lawful de-
msnd" of the Government!
In reading the complaint in the c1se Of the County
OF Santa Clara vs. the southern Pscitc Railrosd
Company (which is in the form prescribed by the
Act approved April %, 1850, and has, L presume,
been followed in all cases for the recovery OF den-
quent taNes) find it alleges, in substance, THAT
defendant is indebted TO plaintiff in the sum OF
IS e6o II county taxes and S0l AZ for State taxes
with per cent penalty added thereto for the non
payment thereof, and interest thereon at the rate
ef , per cent. per month from the 2Ish dav OF De-
cember, 1882 and so cents cost for advertising.
The prayer OF the complaint, which contains the
amount demanded, is as follows Wherefore said
plaintiff prays Judgment against said defendant for
said several sums with interest and penalty atore-
said, with costs OF suit; with lie per cent on the
amount of all said sums as attorneys fees" There
appearing TO my mind such a difference between the
opinion given this department by yourself on the Sth
day of November |, ST and the contained in your
letter of January 29th to your power in the
premises, and not having sufficient confidence in
my own judgment on questions Of law, took occa-
sion the 6th instant to request the written opin
ion of Judge A L Rhodes and D. NJ Delmas, Esq.
who are also attorneys in these cases-as to the
power of your office to allow Judgment to be taken
in these in favor of the State, which did not
provide for the payment of penalties interest COSTS
and attorneys fees, snd they answer that neither
the Attorney General nor any of the attorneys act
ing for and on behalf Of the State, has any such
power, authority, or right as is mentioned in cues
ton four of your letter. (See Exhibits A and b.
hereto attached and made part Of this letter.
Unlocking over the authorities, am more than
ever convinced of the entire absence OF power in
yourself, or in any other person, to allow judgment
to re taken in favor OF the State in the manner you
indicate or in any other or form which does
not include the tChole demand of the Government,
viz: the tax, penalty, interest and costs. case
OF this nature is reported from the State of Nevada
18th Nevada, page 70 ct seq j where the Central IA
cific Railroad Company defendant. The Board
of County Commissioners (which corresponds to our
Boards Of Supervisory had compromised the taxes
due from defendant to the State OF Nevada for three
years by allowing defendant to pay the tax, penalty
interest and COTS for year, and giving it de
fendant) receipt in full for three years The Court
in that decided that " the Board OF County
Commissioners have no power to compromise and
settle suits instituted by the State for the collection
Of delinquent taxes"
Another case, bearing directly on this, is re-
ported from the same State Q5th Nevada page "a ct
seq) entitled State OF Nevada Calf rnia Mining
Company. IL appears that under the laws OF that
State penalty OF twenty-five per cent. is added to
the amount OF the delinquent tax. The tax and
penalty sued for. Afterward the District At
torney with the advice OF the Attorney General and
State officers, consented that judgment might be
entered in favor of the State for the amount of the
tax without including the penalty. The Supreme
Court Of that State held that neither the District
the State officers are clothed with any authority to
give consent to q judgment for delinquent taxes
without including the penalties" and further held
that 1T was the duty of the Court to include the
amount OF the penalties in the judgment"
In Texas State Allen ct al, 80 Texas page
273) the Supreme Court decides that District At
torney has certain duties and powers which are pre-
scribed by the Legislature He is agent attor-
ney of special limited, and not OF general powers;
and where an account of the Indebtedness of the
Assessor and Collector to the State has been deliv-
cred to him with directions to bring suit therefor,
he has power to compromise with the debtor,
either before after suit is brought, during its
tendency, or after Judgment.
In the Georgia Supreme Court, in June, 1888
Vol I6 OF the Reporter, dated July IL, 1885, it
held that "the Attorney General could not compro-
mise tax due the State at less than the amount
due or release the railroad company from any por-
ton of the ad vLlorem tax imposed upon its prop
erty that there no law which conferred upon
him such authority" In our own State, would re
fer YOU to the case OF Preston ct al. Vs. Hill ct al
$50 California page 49,, and County Of Sacramento
VS.. Central Pacific Railroad Company (6l California
page 250 The last case cited is late one, and has
direct bearing on the cases which you now threaten
to attempt to compromise.
shall not weary you by further citations OF the
authorities on this point. l find none to the con-
trsry The reasons for these decisions as set forth
in the opinions is that where an officer is charged
with the enforcement of the collection Of revenue
his authority is limited by the law which coDfers
upon him his authority act. To presume that the
Attorney General has special authority to cOmpro
mise claim for delinquent taxes, or to say that the
penales interest, and costs shall not be colecte
would be to presume fact which is legally imPoss-
Bile.
II he had the authority TO remit the penalty he
would have the like power 20 remit the tax and if
he could remit the penalty or tax in one Instance
he could in all Consequently the question, whether
any money should be paid into the State Treasury
from the taxpayer would depend entirely upon the
will of the Attorney General Tie Legislature it
calf tGa Of t.ItrE
ment, has no power to do that which you claim to
have authority to do. 1t has no power to "reease
or eXtinguish in whole or in part, the Indebtedness
ii ability or obligation Of any corporation or person
to this State" or to "remt fine, penalty, or for
feiture" in any given case Constitution, Article
", Section 81, subdivisions 16 and 26)
But aside from the foregoing aspects Of the ques-
ton why should these penalties interest and costs
be rem tied in these particular cases? Why should
not these defendants submit to the rule that
other taxpayers are compelled to submit to! Where
il the equity in the you threaten to pursue
Justice does not demand 1t reason does not sane
ton il the law will not uphold it. You seem to
place your contemplated action on the ground of
necessity. You say the general fund is nearly eX-
hausted, and to repleHish that you seek to justify
your course. 1t is true, as you state that the gen
eral fund will be exhausted in less than three
months but is that reason why the State should
abandon her rights? THIS State has not vet been
reduced TO a condition Of beggary she has not
reached that condition where she is dependent upon
the will OF her creatures for the means to sustain
her life. She does not ask the defendant to pay
what it owes as fdUOr, but che demands it as a
,igbt Money, alone, does not constitute a State
Honor with the determination to pr, it JUS
tice with the courage to enforce it; these are far
more precious and necessary to a State than any
financial consideration. In the inaugural address,
delivered by myself taking the oath of office Of
Governor in speaking Of the attitude OF those cor
porati )ns which had failed and refused pay their
taxes, used the following language: "The whole
power of the State, within lawful limits. should be
ttat,, tlafr
ton OF the burdens Of government. Powers created
by the State cannot, and shall not with my con-
sent be permitted to become Independent of
greater than the State" From these sentiments
have never deviated and to them l propose to
adhere.
According to the able and exhaustive r. port Of
the C ,ntroer which is hereto attached, and OF
which invite your attentive perusal l find that
those counties in which alleged compromises were
made would lose, on the face Of the tar, the of
sl63 or 81 and with penalties, interest, costs and
attorneys fees added, the sum OF Si20,4S3 49, The
loss to the counties in which no compromises
have been made, accorl ing TO your proposition,
would be 1897 sos ST. and the total loss to the State
and various counties would be the enormous sum of
81 073 4S4 AZ. Are you, as the chief law officer Of
the State conceding that you have the authority to
do So prepared to take the responsibility of allow
ing judgment to be taken in favor of the State in
these cases whereby the State and the various
ties would lose that sum? Ought you not rather
seek to open and set aside those judgments and
were made in the various counties that the State
NAV recover the balance OF the tax, well as the
penalt es interest and costs, which are lawfully
hers?
This Office protests, and will continue to protest.
against the acceptance Of the offer of DEFENDANTS
and against the acceptance of any offer which
knowledges nd includes less than the whole de-
maud of the State against the defendants
In the latter portion OF your communication YOU
fer TO the policy OF conyening the Legislature in
ezra session. and discuss the proprety of action by
that body on certain subjects In answer thereto
may say that for many months past have had that
subject under consideration and that more par
ticuary since the failure to take appeals to the Su-
preme Court Of the United States from the decisions
Of the United States Circuit Court in all cases tried
therein belonging to this class, and the consequent
further failure to procure the advancement on the
calendar for an early hearing Of the Of Santa
Clara county, have had under most serious con-
sideraton the policy of converting the Legislature
act upon some OF the subjects mentioned in your
letter, as well as upon others which are not men
toned by you. | am, sir, very truly YOURS
GEORGE SLOVENIAN, Governor.
Following the above is q letter from the
Govern IT under date of February 6, 1884, to
attorneys Rhodes & Delmss, asking for
opinion as to Whistler the State and counties
can recover from the defendants TIE FIVE per
cent. delinquency, the two per cent. per
month interest upon delinquencies, the ten
per cent. or any less amount for attorneys
fees, ss mentioned in sections of the Code I;
and whether the Attorney. General or other
attorneys Tor State or counties have the right