The record-union., 1897-11-06
SUSTAINED THE DEMURRER.
JUDGE HUGHES IMPORTANT
DECISION YESTERDAY.
James Bailey Must Pay His Taxes
First and Then Sue for
Their Recovery.

Judge Hughes rendered a decision yes
terday that is of great Importance to
taxpayers, and touches a point not hith-
erto adjudicated on in this State.
The suit was that of James Bailey
against Sheriff Johnson, to enjoin him
from selling his property, the old Post
office property, for delinquent taxes.
Assessor Berkey two years ago assessed
the property, upon which there was a
mortgage of $4,000, held by the Re-
gents Of the State University, which
mortgage, by the law of the State, was
non n-aSsessable, being for money loaned
which belonged to the State. The prop
erty, therefore, escaped taxation that
year.
Last wear, however, the Assessor
placed an assessment of $40. 900 besides
the mortgage on the property, and MIR.
Bailey requested the Board of Super
visors to cancel the assessment, on the
ground that it placed too high a valua-
ton on the property. They refused to
do so. and he then brought suit to en-
join the Sheriff from selling the property
for delinquent taxes. The Sheriff de-
INJURED, and Judge Hughes has sustain
ed the demurrer in his decision, which is
as follows:
IN THE SUPERIOR COURT. IN AND
FOR THE COUNTY OF SACRA-
MENTO, STATE OF CALIFORNIA.
James Bailey, plaintiff, VS.. F. T. john
son, as Sheriff and ex-Officio Tax Col
lector of the County of Sacramento, de-
fendant.
Plaintiff brings this action to enjoin
Nf 4 !,
County of Sacramento, from selling
plaintiffs real estate, particularly de-
scribed in the complaint, for State and
county taxes for the current fiscal year,
on the ground that plaintiffs said prop
erty has been improperly and illegally
assessed.
The defendant has interposed a gen.
erA demurrer to the PLAINTIFFS COM
plant, and contends that plaintiff has
mistaken his remedy in that he has a
speedy and adequate remedy at law, un-
der the provisions of Section 1919 of the
Political Code of the State of California,
the same having been adopted in 1893,
and reads as follows:
Section 1919. AT any time after the
assessment book has been received by
the Tax Collector, and the taxes have
become payable, the owner of any prop
erty assessed therein, who may claim
that the assessment is void in whole or
in part, may pay the same to the Tax
Collector under protest, which protest
shall be in writing, and shall specify
whether the whole assessment is claim
ed to be void, or if a part only, what
portion, and in either case the grounds
upon which such claim is founded: and
when so paid under protest, the pay
ment shall in no case be regarded as a
voluntary payment, and such owner
may at any time within six months
after such payment bring an action
against the county, in the Superior
Court, to recover back the tax SO paid
under protest: and if it shall be ad-
Judged that the assessment, or the part
thereof referred to in the protest, was
void on the ground specified in the pro-
test, Judgment shall be entered against
such county therefor; provided, that no
assessment shall be declared void on
account of deductions being made for
mortgages where part payments have
been made and not released upon the
record. On the payment of any such
judgment, such part of the tax recover
ed thereby as may have been paid by
the County Treasurer into the State
Treasury. shall be REGARDED as an
amount due the county from the State;
and shall be deducted in the next settle
ment had by the county with the Con-
troller; such deductions to be made in
that manner that other deductions are
made. as provided in Section three
thousand eight hundred and seventy
one of this Code"
This section of the Code has never
been passed upon by the Supreme Court
of this State directly, but the same was
approved by implication in the case of
Mackay VS.. San Francisco, 113 Cal, 292.
That was an action by the executors of
the estate of Theresa Fair, deceased,
TO recover from the City and County Of
San Francisco the sum of S31 ,6S1 taxes
assessed against said estate. and which
had been paid by the executors under