The record-union., 1896-09-17
SUSTAINED THE DEMURRER.
Assessor Berkey Will Have to Amend
His Complaint,
But Judge Grant Denies Auditor
Cohn's Motion to Dismiss
the Injunction.

Ine application of Assessor Il. II.
Serkey for an injunction against
county Auditor r. T. Cohn was heard
IN the superior Court, Judge Grant OF
xolo County presiding In Judge Cat
ms department. District Attorney
Ryan and j. c. Ball were counsel for
conn, and F. S. Sprague and a. J. Bru-
ner for Berkey.
The injunction, it will be remem-
oered, was asked for to restrain the
county Auditor from reducing the as
sessment roll of the county in accord
ance with the order of the County
Board Of Equalization, reducing the as
sessment of j. B. Haggin by eliminat-
Ang an arbitrary assessment made by
Assessor Berkey upon horses on the
Rancho del Paso.
Assessor Berkey claimed that Su-
Derintendent Mackey Of the Rancho del
Paso had not In his return included
several hundred head Of stock and
horses, and in accordance with
che provision Of law he added an ar
bitrary assessment of ten times their
value to the assessment Of Mr. Hag-
gin. After hearing the statement Of
Superintendent Mackey as to why the
horses have not been included, he stat
ing that they were unstable, and that
q number of them had been killed to
avoid the expense of keeping them,
the Board of Supervisors ordered the
arbitrary assessment stricken off and
reduced the amount about $4,000.
Berkey contended that the assess
nent, being an arbitrary one, could not,
under the law, be reduced, and asked
for writ Of injunction against the Au-
ditor to restrain him from carrying out
the instructions Of the Supervisors in
certifying the roll
District Attorney Ryan argued that
the complaint did not attempt to show
that the County Assessor had no other
adequate remedy in law than this pro-
ceeding. The assessment was all
made together and was an arbitrary
one on all the property, and the fact
that Mr.. Johnson, the Secretary Of the
Rancho del Paso, had omitted to give
IN a part Of the property did not give
the Assessor a right to make an ar
Ditrary assessment.
He quoted at length from the case Of
Weyse against Crawford, in which the
court states in a similar case that
when a statement of the property has
been made to the Assessor, even if
part of it has not been, in his opinion,
returned, he has no right to make an
arbitrary assessment, and can only
subpoena the party to make statement
under oath and prosecute him for per-
jury afterWard if he thinks 1t has been
committed.
Mr.. Ryan argued further that it did
not appear by the complaint that the
statement Of Mr.. Johnson was sworn
TO, and as a matter of fact it was not.
4lr. Johnson was not summoned by the
Assessor or sworn as to his statement,
as the statute provides may be done
when the Assessor Is not satisfied
The plaintiff was allowed to amend
his complaint so as to state that he
had no other adequate aid SPEEDY rem
edy than this proceeding.
Mr.. Sprague argued that the Assess
or had the right, where he was satis-
fed that property had been withheld in
making the returns, to make an arbi-
trary assessment. In this case the
statement was made by Mr.. Johnson
and sent to the Assessor without being
sworn to, and il was not the fault Of
the Assessor that it was SO. Instead Of
eupenaing Johnson to answer questions,
the Assessor sent a man to investigate
VINO discovered several hundred head
OF horses that had not been returned
and he levied an arbitrary assessment
on them.
In the case of Weyse against Craw-
ford, the claim was set up that the
property assessed and in dispute did
not belong to Weyse but to other par
ties, he said, and he claimed that the
decision only ran to this point. In that
case, also, Weyse refused to make a
further statement when called on.
He called attention to Section 364S of
the Political Code, which provides that
any property wilIfully concealed or
misrepresented by the party assessed
may be arbitrarily assessed at ten times
its value, and that such assessment
cannot be reduced. This, he claimed,
did away with the necessity Of subpe-
naing the party to swear to his state
mentS and answer questions.
Judge Grant said that If the section
was not attacked on the ground of its
unconstitutionality there was no quee-
tion as to It's scope.
Continuing, Mr.. Sprague contended