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vember, and have not been paid prior to the said time on the last Monday in April of each year, and an addition of five per centum upon all taxes for the preceding year, which became delinquent on the said last Monday in April, which sum, when collected, must be set aside by the treasurer as a fund with which to pay the contingent expenses of actions against any delinquents, the said expenses to be audited by the board of examiners, and any surplus remaining shall go into the general school fund of the state. When any taxes are paid to the state treasurer, by order of the controller, upon assessments made and apportioned by the state board of equalization, the controller must forthwith notify the auditor and treasurer, respectively, of each county, and city and county, that such taxes have been paid, and of the amount thereof to which each county, and city and county, interested is entitled. The state's portion of the taxes must be distributed by the treasurer to each fund entitled thereto, and the portion belonging to the counties, and cities and counties, must be placed in a fund, to be called "railway tax fund," to the credit of each county, and city and county, entitled thereto. When any taxes are placed in the "railway tax fund" to the credit of a county, or city and county, the controller, at the next settlement with the controller by the treasurer of such county, or city and county, must draw and deliver to such treasurer his warrant upon the state treasurer for the amount in the fund to the credit of such county, or city and county. En. Stats. 1883, 69. Amd. 1891, 441.

Legislative History.

The amendment of 1891 is material only in the changes made to permit of the payment of all personal property taxes unsecured and one-half the realty taxes before the last Monday in November, and the remaining half of the realty taxes and secured personalty taxes on the last Monday in April.

Section Cited .

People v. Cent. Pac. R. R., 83 Cal. 396, 23 Pac. 303; People v. C. P. R. R., 105 Cal. 583, 594, 38 Pac. 905; County of Colusa v. County of Glenn, 124 Cal. 502, 57 Pac. 477.

Annotation.

Constitutionality of Section.-Sections 3668 to 3670 of the Political Code, which provide for the assessment and collection of taxes upon a certain class of railroads, are not unconstitutional as contravening

the provisions of subdivision 10 of section 25 of article IV of the Constitution, prohibiting the passage of a special law for the collecting of taxes. A law which operates only upon a class of individuals is none the less a general law if the individuals to whom it is applicable constitute a class covered by the general law, and which is germane to the purpose of the law. For the purpose of collecting delinquent taxes, railroads operated in more than one county constitute a class distinct from all other railroads, as well as from all taxpayers, and the classification thereof for the purpose of assessment and collection of taxes is constitutional and valid. (People v. Cent. Pac. R. R. Co., 105 Cal. 576, 38 Pac. 905. Cited: 120 Cal. 651, 53 Pac. 213. To same effect: Colusa Co. v. Glenn Co., 124 Cal. 502, 57 Pac. 477.)

Sufficient Notice.-Where a statute requires a notice to be published in a daily newspaper, but does not specify a particular language in which it must be published, a publication in a German newspaper, but in the English language, is sufficient. (Richardson v. Tobin, 45 Cal. 30. Cited: 84 Cal. 448, 24 Pac. 281; 90 Cal. 7, 27 Pac. 52.)

A statutory requirement that a particular notice shall be published in a newspaper is sufficiently complied with by the publication in a sheet of the paper denominated a "supplement," which is circulated coextensively with the balance of the paper. (Lent v. Tillson, 72 Cal. 404, 1 Pac. 71. Cited: 82 Cal. 332, 16 Am. St. Rep. 116, 22 Pac. 910, 1046; 87 Cal, 150, 26 Pac. 797.)

CERTAIN TAXES TO BE PAID STATE TREASURER.

Sec. 3669, Pol. C. Each corporation, person, or association assessed by the state board of equalization must pay to the state treasurer, upon the order of the controller, as other moneys are required to be paid into the treasury, the state and county and city and county taxes each year levied upon the property so assessed to it or him by said board. Any corporation, person, or association dissatisfied with the assessment made by the board, upon the payment of the taxes due upon the assessment complained of, and the percentage added, if to be added, on or before the first Monday in June, and the filing of notice with the controller of an intention to begin an action, may, not later than the first Monday in June, bring an action against the state treasurer for the recovery of the amount of taxes and percentage so paid to the treasurer, or any part thereof, and in the complaint may allege any fact tending to show the illegality of the tax, or of the assessment upon which the taxes are levied, in

whole or in part. A copy of the complaint and of the summons must be served upon the treasurer within ten days after the complaint has been filed, and the treasurer has thirty days within which to demur or answer. At the time the treasurer demurs or answers, he may demand that the action be tried in the superior court of the county of Sacramento. The attorney general must defend the action. The provisions of the Code of Civil Procedure relating to pleadings, proofs, trials and appeals are applicable to the proceedings herein provided for. If the final judgment be against the treasurer, upon presentation of a certified copy of such judgment to the controller he shall draw his warrant upon the state treasurer, who must pay to the plaintiff the amount of the taxes so declared to have been illegally collected; and the cost of such action, audited by the board of examiners, must be paid out of any money in the general fund of the treasury, which is hereby appropriated, and the controller may demand and receive from the county, or city and county, interested, the proportion of such costs, or may deduct such proportion from any money then or to become due to said county, or city and county. Such action must be begun on or before the first Monday in June of the year succeeding the year in which the taxes were levied, and a failure to begin such action is deemed a waiver of the rights of action. En. Stats. 1883, 70. Amd. 1891, 442.

Legislative History.

Instead of "June" the original had "February,' " and instead of, in the second sentence, "and the percentage added," had "and the five per cent added."

Section Cited.

People v. C. P. R. R., 105 Cal. 583, 38 Pac. 905; County of Colusa r. Glenn County, 124 Cal. 502, 57 Pac. 477; People v. C. P. R. R., 83 Cal. 393, 23 Pac. 303; Colusa Co. v. Glenn Co., 117 Cal. 440, 44 Pac.

457.

Annotation.

Section is Constitutional.-People v. C. P. R. R., 105 Cal. 583, 38 Pac. 905; County of Colusa v. County of Glenn, 124 Cal. 502, 57 Pac.

477.

Oringinal Section was Unconstitutional: People v. C. P. R. R., 83 Cal. 393, 23 Pac. 303.

Payment to State Treasurer.-Whether the taxes be due upon an original or a reassessment, they are payable to the state treas(Colusa County v. Glenn County, 117 Cal. 440, 49 Pac. 457.)

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CONTROLLER TO SUE FOR DELINQUENT TAXES.

Sec. 3670, Pol. C. Within sixty days after the first Monday in June of each year, the controller must begin an action in the proper court, in the name of the people of the state of California, to collect the delinquent taxes upon the property assessed by the state board of equalization; such suit must be for the taxes due the state, and all the counties, and cities and counties, upon property assessed by the board of equalization and appearing delinquent upon the "Duplicate Record of Apportionment of Railway Assessments." The provisions of the Code of Civil Procedure relating to pleadings, proofs, trials and appeals are applicable to the proceedings herein provided for. In such action, should a writ of attachment be demanded and issued, no bond nor affidavit previous to the issuing of said attachment is required. If in such action the plaintiff recover judgment, there shall be included in the judgment as counsel fees, and in case of judgment of taxes, after suit brought but before judgment, the defendant must pay as counsel fees such sum as the court may determine to be reasonable and just. Payment of the taxes, or the amount of the judgment in the same, must be made to the state treasurer. In such actions the "Duplicate Record of Assessments of Railways" and the "Duplicate Record of Apportionment of Railway Assessments," or a copy of them, certified by the controller, showing unpaid taxes against any corporation, person, or association, for property assessed by the state board of equalization is prima facie evidence of the assessment, the property assessed, the delinquency, the amount of the taxes due and unpaid to the state, and counties, or cities and counties therein named, and that the corporation, person or association is indebted to the people of the state of California in the amount of taxes, state and county, and city and county, therein appearing unpaid, and that all the forms of law in relation to the assessment and levy of such taxes have been complied with. En. Stats. 1883, 71. Amd. 1891, 442; 1895, 314.

Legislative History.

The amendment of 1891 is like the original, except that "February" is changed to "June."

Section Cited.

People v. Central Pac. R. R., 83 Cal. 396, 398, 403, 23 Pac. 303; People v. N. P. C. R. R. Co., 68 Cal. 552, 10 Pac. 45; San Diego v. S. P. R. R., 108 Cal. 48, 40 Pac. 1052; San Mateo v. Oullahan, 69 Cal. 648, 11 Pac. 86; People v. Cen. Pac. R. R., 105 Cal. 583, 588, 591, 596, 38 Pac. 905.

Annotation.

Sufficiency of Complaint.-The sufficiency of the complaint in an action to recover delinquent taxes must be tested by the rules regulating pleadings in civil actions, and not by section 3670 of the Political Code. (People v. Cen. Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303.)

It is not enough in a complaint to aver the indebtedness for taxes, but the complaint must show that the taxes were levied upon the property, and when, and where, and by whom the levy was made; that the taxes were based upon the assessment averred, and are delinquent and unpaid; and must show how and when the defendant became indebted for taxes, and how and when the five per cent demanded was added to the amount due. (People v. Cen. Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303.)

A complaint for taxes must not only aver the fact of the assessment of property to the defendant, but must show that the defendant is the owner of the property, and that it was situated within the jurisdiction of the person or board making the assessment, and is within the jurisdiction of the court. (People v. Cen. Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303.)

Complaint for taxes must show the authority of the state board of equalization to make and apportion the assessment of railroad property, and show what part of the property assessed is situated in the county to which the apportionment was made. (People v. Cen. Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303.)

A complaint to recover taxes must show upon its face a prima facie case of a valid tax assessed and levied, and that it is delinquent. The statute waiving informality in the assessment does not excuse the total want of assessment, which cannot exist without a description showing the general character and situs of the property. The statute nowhere waives informality in the levy of the tax. There is no tax until one is levied, and a complaint for taxes shows no indebtedness without averring the levy. (People v. Cen. Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303.)

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