The San Francisco call., 1896-05-12
AN Action Similar in Effect to
the One in the Supreme
Court.
SUING FOR FORTY THOUSAND.
Judge Trout Eas Declared One Of
the Tax Laws Uncousti.
tutional.

court as defendant IN suit on uncollected
taxes.
Clunie's accusation was made in per-
suanoe of the inference he drew from the
remarks of the Supreme Court when his
petition for writ OF mandate compelling
the Assessor to reassess the Market-street
Railway Company's property came before
that body. 1t was intimated then that
the court considered the Assessor and the
Board of Equalization the supreme au-
thority in that matter, and so without
waiting for decision Clunie has filed his
accusation against Siebe.
The accusation was first made to Judge
Slack, who assigned the case to Judge
Wallace. Upon hearing he set the mat
ter for May 20.
The accusation is as follows:
Now comes Andrew ]. Clunie and files the
iollowlng accusation in writing against John
d. Slebe, Assessor of the City and County of
san FRANCISCO, State OF California, and in that
behalf alleges:
That at all times herein mentioned the CITY
and County of San Francisco has been and now
is, municipal corporation, organized and ex-
lsting under and by virtue of the laws of the
State OF California.
That at all the times herein mentioned said
Andrew J. Clunie has been and now is a citi-
zen and elector OF the State of California and
OF the City and County of San Francisco.
That al an election regularly called and held
IN the City and County of San Francisco on
the 9th day OF November, A. D. 1894, for the
electlon OF officers OF said City and County of
san Francisco State of California, John D.
Slebe was elected Assessor of the Citv and
County OF San Francisco for the term of four
years from and after the first Monday after the
nrst day of January, 1895, and that thereafter
the said John D. Siebe was duly qualified as
such Assessor, and ever since the first Monday
after the 1st of January, A. D. 1895, has been, 4,
and now is the duly elected, qualified and
acting Assessor of the City and County of San
Francisco, State of California.
That at all times herein mentioned the
Market-street Railway Company has been, and
now is, corporation organized and existing
under and by virtue of the laws of the State Of
California, and having its principal place OF
business at the City and County OF San Fran
cisco, State OF California
That on, at and prior to IL O'Clock meridian
of the first Monday in March, 1895, said Mar
ket-street Railway Company was and ever
since has been and now is the owner OF real
and personal property subject to taxation
under the laws of the State of California, and
situated within the City and County of San
Francisco, State of California, and subject to
assessment and taxation within the said City
and County OF San Francisco, and that at all
OF said times the full cash value of said prop
eriy has been and now is not less than $17,-
100000, and that at all said times said prop
erty would have been taken in payment of d
Just debt from said Market-street Railway Com
pany for said amount.
That for the purpose and with the design of
enabling said Market-street Railway Company
TO evade taxation for the fiscal year commenc-
ing July l, 1895, upon the full cash value Of
said property, said John D. Siebe, as such AS
SCISSOR of the City and County of San Francisco,
Wilfully and knowingly failed and neglected
TO, and did not assess the said property OF said
Market-street Railway Company for the pur-
pose OF taxation for said fiscal year, at its full
cash value, but with the said object and Dur-
pose then and there assessed the same at the
value of but $3, ,8S3, ,S66, and that no other
further or additional assessment of said prop
erty for said fiscal year was made.
That the rate of taxation for State and CITY
and County purposes for said fiscal year was
81 % upon each 800 of the assessed valu-
alton OF he property of said City and County
OF San Francisco,
Wherefore it is prayed that said John D.
Siebe, as such Assessor of the CITY and County
OF san Francisco, be cited by this court to an
pear before 1t at q time and place to be fixed
by it, and that thereupon such proceedings De
had and taken required by section 772
Penal Code OF the State of California.
ANDREW J. CLUNIE, Accuser.
The section of the Penal Code referred
to is:
When an accusation IN writing verified by
the oatn OF any person, is presented TO the
Superior Court, alleging that any officer within
the jurisdiction of the court has been guilty of
charging or collecting illegal fees for services
rendered or to be rendered in his Office, or has
refused or neglected TO perform the Official
o4nes out pertaining to his office, the court must
cite the party charged to appear before the
court at u time not more than ten nor less than
hVe DAYS from the time the accusation was
presented, and on that day, or some other sub
sequent day, not more than twenty days from
that on which the accusation was presented
mus proceed 10 near In summary manner
the accusation and evidence in support OF the
same ana the answer and evidence offered by
the party accused and if, on such hearing It
appears thaI tne charge Is sustained the court
must enter a decree that the party accused be
deprived OF his Office and must enter a iude-
men @nent Oh Sooo IN favor OF the informer and
such costs as are allowed in civil cases
The case in Judge Troutts court is all
in Siebe's favor. By one of the amend.
ments of 1895 it becomes necessary for the
District Attorney to sue the Assessor and
his bondsmen for any neglect to collect
due and collectable personal pronertv
taxes unsecured by real estate. The And
itor must go over the Assessors books
after August 10 of each year and if he
finds a shortage he must demand the
amount from the Assessor. Should this
not be paid in fifteen days the Auditor
must notify the District Attorney, who
must bring suit against the Assessor and
his bondsmen for the amount of the
shortage.
1t is further provided that in this suit
no defense but that the tax is illegal, void
or invalid shall be admitted.
All this had been gone through with.
The Auditor found $40,830 Is in taxes un-
collected and this was demanded from the
Assessor. 1t was not paid and suit was
brought. The trial came up yesterday
and lasted about two hours. The decision
was given for Siebe and Judge Trout, in
deciding, said he believed the law uncon-
sIitutional
Mr.. Barnes proved the $40, $50 taxes due
and uncollected. Then Mr.. Herzer, Mr..
Siebe's chief deputy, was called to the
stand in defense. He testified to the diff
culties of collecting the taxes included,
showed that none of it was due on the ves-
sells which had sailed when the tax had
become due; some was on household prop
erty which had been moved to parts un-
known and there were many other reasons
equally as good for the deficit.
Mr.. Barnes demurred to the defense as
one not contemplated by the statute. but
Judge Trout ruled that the law was un-
constitutional, as it sought to deprive a