, 1886-11-23

'"l iNllulNN Illtll 10 remain
in session fifteen days, and The aet com
planned OF was not done until after such
fifteen days had expired.
The point that section Is. chapter l0o
laws of 1876, does not provide for notice
to persons whose property is added to the
assessment roll, is based upon the lam
guagc OF the the statute which is AS fol
lows:
1T shall be the duty of the clerk of
the board to give notice TO each person
whose assessment has been raised
Plaintiff contends that the omission of
the words ''or added to the rolls, leaves
no provision for notice. Strictly speak
ing, that is the case; but the court does
not think hat such section can be read
separately from the balance of thc'revcnuc
laws. 1t is provided that the assessor
must notify all persons in his bailiwick to
list their property for taxation. 1t is
conceded in this case that he did 50.
Upon failure of the person to So list his
property 1t becomes the duty of the as
SCISSOR to list the property according to
the best information he can obtain. If
he fails to do so, as he did in this case,
it then becomes the duty of the county
board, acting upon the best information
they can obtain, to add the same to the
assessment rolls. In the opinion Of the
court the notice required in order to sup
port the statute cited, and of whose abb
sence plaintiff complains, may be referred
back to the notice served by the assessor,
and after such notice by the assessor the
plaintiff is chargcablc with knowledge of
the complete legal routine to be then
followed.
think the true rule is laid down in
~llambleton vs. Dempsey, 20 o., l73. .
THE law fixes the time and place of
the meeting of the board. This is notice
to every citizen who has property, real or
personal, returned for taxation.
Plaintiff had taxable property and knew
it. He was chargcablc with knowledge of
the law. Yet he fails to make any return,
and by reason of such failure now asks the
court to enjoin the collection of the taxes
assessed against him in the regular course
of law. This disposes of the question as
to whether the statute Is constitutional or
not. | have discussed this question of
the constitutionality of such act, not for
the purpose of deciding it, as its decision
is not necessary for the purposes of this
case. As to the second objection made
to the action of the board, whilst the pro-
position is undoubtedly true that such
board is limited to fifteen separate days of
session, | cannot conceive that the statute
is mandatory in requiring them to meet
on fifteen consecutive days and limiting
them in that way. The other provision
of the statute which requires the members
OF such board to meet in their capacity as
county commissioners during such fifteen
days would clearly settle that PROPOSE
ton. If the laws We're construed
strictly one section would defeat the other
and that would be contrary to all canons
of construction. But did the board assess
this right of way at all, and il so, did it
do it effectually? The entry ON the as
sessment rolls is thirty miles of railroad."
In the view of the court thirty miles of
right of way could not under the circum-
stances answer to the description of thirty
miles of railroad Cooley lays down
the rule that property must be sufficient
ly described to identify it in order to con-
stitute a valid assessment. Applying that
rule to this case, the court is clearly of
the opinion that the assessment of thirty
miles of railroad could not under any cir
cumstances be taken to mean thirty miles
of right of way. But if it could, then
the property assessed by the board should
have been assessed by the territorial
board under section /, chapter 6, laws of
1879; and this board was clearly without
jurisdiction In either view this tax is
Illegal.
This assessment is perfectly regular on
its face. 1t may have come from the
territorial board of equalization, and it
fails to show the material fact that the
property actually subject to taxation was
not the thirty miles ofrailroad, but certain
rights OF way. The rule is well laid down
in Union Pacific railroad vs.. Ca,land 2.
Pacific railroad I8l:
TO cntitle a party to relief in equity
against an illegal tax, he must bring his
me. ,,,lar .,, ,v.ll .l.Enal I.,l -
equity jurisdiction.
Courts of equity will enioin the east
Ing of a cloud upon a title in cases where
in the cloud itself when cast would be
removed.
"Ifthe record showing the valuation
and levy of a tax is complete in its face.
such record creates a lien upon the real
estate against which the tax Is assessed
and is a cloud upon the the title.
One other point has been raised. Is
plaintiff entitled to relief before he shows
hat he is ready to pay the taxes which
equitably are due from him2 But the
ease Of county of Valencia vs.. Atchison,
Topeka X Santa fc railroad, s, Pacific
railroad POI, in a well considered opinion
properly settles the rule to be:
In a suit to onioin the collection OF
taxes, when the original assessment is en-
tircly void, there is no necessity for a
tender of such sun as might be cquitably
due on account Of such taxes.
The demurrer to the petition will he
overrule1, and the Injunction asked for
granted,
Gibson CLARK, attorney for plaintiff, and
T.. W. Mann for defendant.