The San Francisco call., 1904-08-19
MUST FIGHT
SUIT ON MERIT
Recorder Pryor OverruleS
Demurrer of Marriott i'll
the Street Poll Tax Case
VALIDITY Is UPHELD
Involves Right of Sausalito
Trustees to Make Special
Levy for Improvements
Special Dispatch to The caII.

SAUSALITO, Aug. 1S.-Justice Pryor
to-day overruled the demurrer OF Fred
erick Marriott questioning the consu-
tutionality Of the street poll tax. Mar
riott has two days in which TO plead
Judge Pryor in his opinion says in
part:
This is a criminal action brought
by the people of the State of Cali
fornia against Frederick Marriott,
charging him with having violated
ordinance No. 135 of the Board of Trus-
tees OF the town of Sausalito, TO wit:
Having failed, neglected and refused
TO pay his annual street poll tax. The
defendant appeared in court at the
time set for arraignment and hied
written demurrer
The act Of the Legislature creating
the Recorders Court in cities of the
sixth class has conferred upon il con-
current jurisdiction with the Justices
Courts and provides that the mode of
procedure in the Recorder Court shall
be the same as are or may be pre-
scribed by law for Justices Courts IN
like cases.
The demurrer presents for consider
alton two cardinal points, To which all
others are subsidiary: First-Does the
complaint upon which this proceeding
is based state facts sufficient within
the provisions of Ordinance 135, TO APP
prise the defendant of the nature of
the charge against him? Seconds
the ordinance itself constitutional
The court Will give its views upon
these questions in the inverse order of
their statement.
Does the ordinance levying a street
poll tax and prescribing a penalty or
fine and Imprisonment for refusal to
pay conflict with the constitution, or
violate any general law of the State?
II is asserted, with much earnestness,
that because the constitution, article
Mi, section y, provides that The
Legislature shall provide for the levy
and collection of an annual tax,
TO be paid into the State schc nd
that no other, further or din poll
tax shall be levied by authority oI law.
II the maxim eXpressio unius est ex-
clusiO alterius were to be alone re-
sorted to, and if this court were sitting
as a tribunal of last resort in a case of
first impression. the argument might
recommend itself to weightier consider
alton than the court is inclined to give
it. In the first place, the legislative
construction given the above article Of
the constitution is entitled TO much
weight in deciding the matter, so far
as this court is concerned.
In the case of Sam Wah on habeas
corpus, the Supreme Court. by Justice
de Haven, considered at some length
the question whether a statute making
ii an offense to obstruct an officer in
the collection of any revenue taxes on
sums Of money in which the people of
the State are Interested could be ap-
piled to the resistance of a person TO a
municipal officer of town of the sixth
class in endeavoring 10 collect a
street poll tax The learned Justice in
deciding the matter never gave an ut
terance TO the effect that the street
poll tax was unconstitutional. 1t is
true the point was not presented for
consideration, but if its unconstitution-
ality was so plain and palpable 1t
would never have escaped the seven
Judges who interested themselves in
the law of that case.
1t is sufficient for this court that the
act Of the Legislature creating the
court has granted to the trustees of
municipal corporations Of the sixth
class, in language so plain that it is
not susceptible of misconstruction,
power TO impose on and collect from
every male inhabitant between the
ages Of p and so years, an annual
street poll tax not exceeding 81
The court will now consider the suf-
ficiency Of the complaint.
THE complaint alleges in substance:
That on the 18th day of July, 1904
the defendant was a male inhabitant of
Sausalito and within the required age
TO render him liable to the tax 1t then
proceeds to charge in the language of
the ordinance that he has willfully and
unlawfully failed, neglected and re-
fused 10 pay the tax, on or before the
30th day of July, 1904.
THE complaint may not be model of
pleading or a precedent to follow, but
in view Of the provisions of section $50
of the Penal Code. the court deems it
sufficient TO apprise the defendant of
the nature Of the charge against him
and deprives him of no substantial
right.
1T is therefore ordered that the de-
murrer be overuled and the defendant
will plead to the complaint"