The record-union., 1891-10-29
MUST GIVE NOTICE.
Wages Cannot Otherwise Be Gar
nisheed for PoII-Tax.
An Important Decision by Justice OF
the Peace Devine of Interest to
Railroad Employees.

henualI against y. ID. Cummings, local
cashier OF the railroad, a case which was
recently tried before that court.
1t has been the practice of the poll-tax
collector to serve garnishments upon the
railroad company for the collection Of de-
linquent poll-taxes, but it appears that
the employees so attached were not given
notice, and the question as to whether or
not this mode of procedure was legal was
involved in this suit
THE DECISION.
Justice Devine's decision in the case is
as follows:
1.-The facts in this case, so far as neces-
are as follows: On August 10, 1891, the
Southern Pacific Company, a corpora
ton, issued and delivered to A. b. New
ton, who had heretofore performed labor
Tor 1t, two certificates or time vouchers
certifying that Newton had worked cer-
tain time, and was entitled to receive
therefor from the company the sum of
S32 so, less certain hospital dues, which
sum would be paid by the company upon
presentation of the vouchers properly re-
ceipted, etc. The day after issuance of the
vouchers they were purchased by plalnt-
III, through his clerk, from Newton, and
by plaintiff presented to defendant for
payment The defendant, according to
MS own testimony iall that was given in
the case on this point, occupies the pO-
sltIon of local cashier of the Southern
Pacific Company at Sacramento City.
The principal place of business of the
corporation, and the place where its
President, Secretary, Treasurer and other
principal managing officers reside, is the
city of San Francisco. Cummings, in
the year 1865, went into the employ of the
Sacramento and Placerville Railroad
Company as its cashier, and acted as such
until about four years ago, when it be-
came part of, and has since been owned
by the Southern Pacific Company. Since
then Cummings has occupied, as he says,
the position of local cashier. His duties
as a cashier are limited to paying and col
lecting certain bills against and in favor
OF the company. He is
NOT ITS PRINCIPAL CASHIER,
Or auditor, or paymaster but simply
sub-cashier, or sub-paymaster, with linn
tied powers so far as the payment or
is concerned. He has been in the habit
OF cashing these time vouchers and re-
porting them to and been allowed credit
therefor by the company, and such
vouchers have also at all times
been cashed by the company in San Fran
cisco. On August II, 1891, and previous
to the presentation Of the vouchers 10 him
by plaintiff for payment, the County
Assessor of Sacramento County served
upon and left with the defendant q writ
ten notice in these words:
''Io c. II. Cummings, Age1t Southern Pdcitc
Company: You are hereby notified that A. 3.
Newton, in your employ, owes poll-tax for
the year 1891, which he neglects to pay after
demand, and you are hereby made liable for
the payment of said tax, together with one
dollar costs for service Of this garnshment,
and also all accruing costs.
'R. c. IRVINE, Assessor
Cummings at the time they were pre-
sented to him for payment offered to pay
the face of them less the hospital dues and
three dollars pOll-taX. Plaintiff declined
10 allow defendant to deduct the poli-tax,
and refused to accept, and declared he
would not accept said amount, and de-
Inanded the return of the vouchers.
Defendant refused to return them to
plaintiff and still retains them. Plaintiff
sues in replevin for their return or their
value. There was no proof upon the
trial that any demand Of any kind had
ever been made upon Newton by the
Assessor or his deputies for the payment
of the poll-taX mentioned.
THREE QUESTIONS PRESENTED.
''Three questions, upon argument,
were presented to the court for considera-
ton, viz: First-Was a sufficient tender
Of the amount due made by defendant to
the plaintiff in the event that il should be
determined that defendant could legally
withhold the pOll-taX from the amount
called for by the vouchers? Second
Must demand be first made upon the
person charged with the poll-taX by the
Assessor before he, or the person upon
whom garnlShment or notice by the
Assessor is served, is liable for its pay
ment? Third-Was the defendant Cum
lnings, personally, or as agent Of the cor
pOration, under the notice or garnish-
nent served by the Assessor. bound to
withhold the poll-taX?
while inlthe view taken of this case it
is unnecessary to decide the first point.
still l think the tender made was sufli-
cient. Although defendant did not
actually produce and offer TO the plaintiff
the amount due, the production and offer
was excused by the declaration OF
plaintiff that he would not accept such
sum II produced and offered.
From an examination of Sections
3S39-3S62 of our Political Code relative to
the imposition, method of collecting, etc.
of poll-taXes in this State, am of opinion
that the second question must be
answered afiirmadveIy.
Section 1899 provides that Every male
inhabitant Of this State over q and under
60 years of age, except paupers, insane
persons and Indians, not taxed must
annually pay poll-taX.' Sec
tion 3S46, The Assessor must demand
payment fpoll-tax of every person liable
LutItiJIs anu Oh iieEtett or REFUSAL OF SuCn
person TO pay the same he must collect by
seizure and sale of any personal property
owned by such person. Section 3S4S.
Every person indebted 10 one who neg
1ects or refuses after demand to pay poll
tax. becomes liable therefor, and must
pay the same for such other person after
service upon him by the Collector Of a
notice in writing stating the name of such
person. Section 1857, The Assessor
laust keep roll of the names and local
residence or place of business of all per-
sons subject to or liable for poll-tax, and
if paid, date and amount of such pay
Inent, and if not paid, cause of non-pay-
ment; provided, that no person shall be
returned as delinquent on such roll un-
less a demand has been made upon him
in person or through the postofsice.'
MUST HAVE NOTICE.
"From these provisions I think it was
the evident intention of the Legislature
that before the liability of person bound
to pay poll-taX is fixed so that has prop
erty can be subjected 10 seizure and sale,
or he be returned as delinquent. or a
third person owing him money can
be allowed to retain therefrom the tax,
he is entitled to have a demand made
upon him by the Assessor for its pay
ment. A poll or head tax is different
from a tax levied upon property. All
property in existence in this State on
certain dates is subject to taxation and
the tax then levied becomes n lien. The
owner is bound to know when it is as
sessed, when payable, and when a
lien. No demand for its payment is
necessary, but il is the duty Of the owner
10 see that it is paid. Whether person
be sane or insane, INDECENT or opulent.
Jew, Gentle, Caucasian or negro, if he
own property. real or personal, situate
and IN existence in this State, at certain