The record-union., 1893-02-15

1881. In all the cases judgment was
asked for a penalty of per cent.
interest at 2 per cent. month
and attorneys fees. The case was
argued and decided at the October term,
1885, of the Supreme Court of the United
States. In the opinion, the court says:
1.-The case as presented to the court below
was therefore one in which the plaintiff
sought judgment for the entire tax aris-
ing upon the assessment of different kinds
OF property as unit. Such assessment
included property not legally assessable
by the State Board, and part of the tax
assessed against the latter property not
being separable from the other part.
Upon such an issue the law, we think, is
for the defendant. An assessment of that
kind is invalid, and will not support an
action for the recovery of the entire tax
so levied. 1t results that the court below
might have given judgment in each case
for the defendant upon the ground that
the assessment which was the foundation
of the action included property of mate
rial value which the State Board was
without jurisdiction to assess, and the tax
levied upon which cannot, from the
records, be separated from that imposed
upon other property embraced in the
same assessment. AS the judgment can
| be sustained upon this ground, it is not
necessary to consider any other questions
raised by the pleadings and the facts
found by the court. 1t follows that there
is no occasion to determine under what
circumstances the plaintiffs would be en-
| fitlad RI Indictment Aalinnnnnt
taxpayer tor penalties, interest or attor-
neys' fees: for, if the plaintiffs are not
entitled to judgment for the taxes arising
out of the assessment in question, 20 liza
bility for penalties, interest or attorneys
fees could result from refusal or failure
to pay such taxes. Judgment affirmed"
LIABILITY FOR PENALTIES.
AS to the liability of companies for
penalties, interest and attorneys fees in
case of invalid assessment the point is
directly made and decided in the case of
San Bernardino County VS.. Southern
Pacific Railroad, 1l8 United States Re-
ports. page II, in which the court said:
"Of course no penalties for not paying
an illegal tax, and no attorneys fees
charged for an attempt to collect them,
could be recovered and for a like reason
the interest of per cent. a month
claimed could not be demanded" That
decision disposed of all the cases brought
by the respective counties or the State
against the Pacific Railroad Companies
for the years 1880, 1881 and 1882.
There were also pending, on the 29th OF
September, 1884, in the Circuit Court OF
the United States for California, six GER
tain other cases prosecuted by the People
of the State of California against the
railroad corporations for the collection OF
delinquent taxes for the fiscal year 1888
Each of said cases was originally COM
menced in one of the Superior Courts OF
the State by attorneys employed for that
purpose by the State Controller, and
were subsequently transferred, on mo-
ton of the defendants therein, to the
: Circuit Court, and in that court, on the
29th of September, 1854, an order was
made and entered in one of said last
named six cases; that the defendant cor
porations having rendered in their an
swers, on the 9Th day of November, 1888,
and offered to pay the sum of 1888, 81 10;
that said defendants in their several an
swers having averred that they had
brought the said sum into court and
offered the same to the plaintiff and sub
jected the same to such orders or judg-
ments as the court might make in the
premises; that upon motion of attorneys
for plaintiff it was ordered by the cour
that the defendant within five days from
the date of said order make such tender
good by paying to e. c. Marshall, Attor
General of the State, the sum of $685.
81 10, to be by said Marshall paid int
the State Treasury of California for tn,
benefit of said State and the counties re
spectively entitled thereto. And it wa.
further ordered that neither the paymen
nor the receipt of said sum should preju
dice or affect any right of either party t,
maintain or defend as to the balanc
claimed in the complaint.
The amount thus ordered to be paid b,
the Circuit Court amounted to 60 pc
cent. of the face of the taxes, and wa
g paid to the Attorney-G General by the de
PENDANT corporations in the action
within the five days mentioned in tn
order.
FIVE MORE OF THEM.
On the 18th day of September 1885, il
g the Circuit Court, five other cases wer
r commenced, removed and prosecuted a
= were the six cases last referred to, and il
g which similar proceedings were had, ex
II cept that the amount ordered to be pai
S to the Attorney-General by the respectiv
S defendants, and which was so paid wa
!. the sum of 1929, $50 60, and was so pc
= cent of the face of the taxes. The Circui
n tod 20 I,a 49,
Il ants in all of the cases, and the State tool
a the cases TO the Supreme Court Nos. &C
: and ll57 on the docket of the Suprem
Court are the cases in which the tender
were made and accepted by the State 10
o the taxes of 1888 and 1884.
d The Circuit Court found in cases Nos
: geo and 1157 and others, that an assess
l. ment made by the State Board of Equal
n ization for the years 1888 and 1884 include
e the full value of all the franchises an
e corporate powers held and exercised b
70 the defendants. Justice Bradley, speak
Q ing for the court, says: ''Assumin
d then that the Central Pacific Railroa
10 Company has received all the importar
5; franchises referred to, by grant of tn
d United States, the question arises whethe
= they are legitimate subjects of taxatio
d by the State. They were granted TO til
Of company for national purposes, to sui
,e serve national ends. 1t seems very cles
Is that the State of California can neithe
te take them away, nor destroy, nor prejr
1t dice them, nor cripple them by oneror
l. burdens. Can it tax them? 1t may III
0, doubtedly tax outside, visible propert
ID of the company situated within the Stat,