The record-union., 1891-01-25

making an assessment in such a case as this is
Political Code:
Section 3647. money and property in liti-
CATION in possession of a County Treasurer
of q court, County Clerk, or Receiver must
be assessed to such Treasurer, Clerk or Re-
cetver, and the taxes be paid thereon under
the direction of the Court
There was q plain violation of the provis-
ION OF this section, and the well established
rule is that If an assessment is not made as
prescribed by the statute it is void. (Grote-
fend VS.. Ultz, SO Cal. 666; Grimm VS.. O'Con-
NELL 81 Cal. 522; Hearst VS.. Egglestone, So
Cal. 367; Brady VS.. Dowden, 50 Cal. 81; Bos-
worth vs. Webster "a Cal. 1; DAILY VS.. All
Coon, Cd Cal. SIG; Klumoke VS.. Baker 6S
Cal. 559.) 1t Is true that the code provides
that mo mistake in the name of the owner or
supposed owner of real property shall render
Code, Section 362S.) But whatever may be
the meaning of this provision, it does not APP
ply 70 personal property Qake County VS..
The assessment for 1SS7-SS was therefore
Invalid, and a re-assessment in the following
year was proper.
g 1t is contended that there was no autbor
ity of law for making the levy
section S71 of the Municipal Corporation
Act provides that the City Trustees ssshall
have power and it shall be their duty to pro-
vide by ordinance asystem for the assessment.
levy and collection of all city or town taxes
not inconsistent with the provisions of this
chapter, which system shall conform as nearly
as the circumstances of the case may permit
to the provisions of the laws of this State in
reference to the assessment, levy and colec-
ton of State and county taxes ercept as to he
times for such assessment levy, and collection,
laws 1888, p. 273.9
The ordinance passed in pursuance of the
things, the following
Section g. THE manner form and time of
assessing and collecting city taxes shall be the
same as is prescribed by the Political Code
of the State of California for ASSESSING and
et6lieeting state and md county taxes; and all
Poltlcal Code are hereby adopted and are
ordained to be, and are, the law for assessi11o
arg e;ouec,lng city taxes as to manner mode
The objection consists of two branches
which we shall consider separately.
q. 1t is argued that the statute above Quoted
Jor6idS the city from assessing, levying and
collecting It's taxes at the same time as the
state and county. But we do not so construe
to the discretion of the CITY Trustees who
may fix any time they see fit. There is moth
ing to prevent them from selecting the time
fixed for the other taxes.
b. 1t is said that the ordinance in question
provides only for assessing and coliecting,;
the taxes, and not for levying them. as To
which it is commended that no nrorisia,, " ~
made. -
But in the first place we think that the words
assessing and collecting" are used in the or
dinance in general sense, and include the
operation called leyying the tax The words
are so used in the Constitution AS is said in
the clear and satisfactory argument of the
OF the city taxing power is in the Constitution
Article Article X, Section IL, provides that the
laws vest in the corporate AUTHORITIES noar
to assess and collect taxes There is no author
lty TO levy unless one of the words saSsess
and collect includes levy.'
In the second place the ordinance does not
conf1ne 1tselfto an adoption of the provisions of
the code by q general referenc e to them as those
IN relation TO the assessment and collection of
taxes. 1t goes on to designate specifically the
provisions adopted by saying: aand ali the
provisions of Title TX, Part III, of said
&c pon hn Code are hereby adopted" The part
for levying the tax. (Sections 3713 to 37Ier
ana the ordinance makes provision for the
3. 1t is commended that the provisions of The
ordinance quoted conflicts with Section $40
OF the Municipal Corporation Act. The sec
ton referred to provides in substance that the
delinquent taxes shall be collected by the CITY
Attorney by suit in the name of the city laws
1888, p. 2I7, while the portions of the
vide that such taxes shall be collected by the
Tax Collector by sale of the property iSec
3165 ct seq):, But If it be conceded that these
portions of the ordinance are in conflict with
the statute (as to which see City of PlaceryiIje
vsWicox, 35 Cal. 81 lit does not follow that the
wh1te ordinance Is void Nothing is better
nance which is invalid is distinctly separable
nom the remainder, the latter can stand and
1ne former De rejected" Ex parte Christensen.
So Cal, 212). The provision for the collection
OF the delinquent taxes seem distinctly separ
able from the other parts of the ordinance. and
may therefore be rejected. The proceedings in
this case were in accordance with the statute.
the suit having been brought under section
S79, above referred to.
In the view we have taken it is not necessary
to consider the effect of the amended ord}
nance.
we therefore advise that the Judgment and
order appealed from be affirmed
We concur
BELCHER, G.
FoOTE, G.
THE COURT.
For the reasons given in the foregoing opin-
ION the Judgment and order appealed from are
CoNCURRING OPINION.
concur in the judgment and in the forego-
ing opinion. The money which was the sub
Ject of the double assessment for the wear
ISSS-S9 did not bear its share of taxation for
the preceding year. If the owner had waived
the invalidity of its assessment for the fiscal
year lSo1-8s and had paid upon such assess
nle mem the tax levied tor that year, a different
question would have been presented.
DEHAvEN, j.