The record-union., 1898-08-04
THE BAILEY TAX DECISION.
WHY THE SUPERIOR COURTS
OREDR WAS REVERSED.
Full Text Of the Decision Rendered
by the Supreme
Court.

liz the case Of James Bailey against
FRANK L. johnson, Sacramento County
lntermittor and appellant, the Supreme
court recently decided that the objec-
tlon to the adjudication interposed by
the District Attorney on behalf OF the
county should have been sustained, and
on that ground reversed the decision OF
the Superior Court
The agreed case entered into be-
tween the plaintiff, Bailey, the owner
OF the assessed property, and defend
ant Johnson, the Tax Collector of the
county, whereby it was sought to sub
init to the court below, under the sup
posed sanction of Section 113S of the
Code of Civil Procedure, the question
of the validity of the tax in con-
troversy, gave the court no jurisdiction
of the subject mater sought to have
adjudicated
Section 1888 provides that Parties
to question in difference, which might
be the subject of a civil action, may
without action, agree upon a case CON
tanning the facts upon which the con-
troversy depends, and present a sub
mission of the same case to any court
which would have jurisdiction if an
action had been brought" ETC., and
thereby have a termination of such
petition.
But this provision has reference to
Interested parties, authorized and ca
pable of litigating the question in
volved. The taxpayer and the county
We're the only parties to the question
in difference involving the validity of
the tax in controversy. Defendant
Johnson, the Tax Collector, was not
suchl a party, and he was without
authority to bind the county in the
premises. He was but the agent of the
county for the collection of the tax
with no interest other than that OF an
officer performing a duty enioined by
law, and with only such power ard
authority as the statute gave. He was
not concerned in the question OF the
validity of the tax. If he failed 70
collect it because Of its illegality, he
was not responsible to the county; and
if he collected it, and it subsequently
proved to have been illegally assessed,
he was not responsible to the aggrieved
taxpayer. 1t is quite obvious, therefore,
that he was not a party" within the
statute, authorized to submit the con-
troversy without action.
1t does not follow that, because he
would have been the proper party de-
fendant in an action brought by Bailey
to enjoin the collection of the tax, he
is the proper party to this proceeding
Such an action runs against the offl-
GER or individual, whose act is to be
enjoined, whether he be a principal or
an agent And while such an action
would nominally be against the tax
collector the real defendant would re
the county, with the right in the latter
TO conduct and have control Of the
defense.
Here is an attempt without the IL
tervention of an action, to submit to
adjudication a controversy in which the
rights of the county are directly IN
volved, without any opportunity on its
part to be heard. The objection 70 the
jurisdiction interposed by the District
Attorney on behalf of the county should
have been sustained. This renders IT
unnecessary to consider the other
propositions discussed.
The judgment is reversed with d.
rections to the court below to dismiss
the proceeding.
The decision is by Justice Van Fleet
and concurred in by Justices Garoutte
and Harrison.