Sidebilder
PDF
ePub

tor of the will, and her own three minor children,
in whose interests he claims the estate should
be held and managed. Cause tried at January
term of 1871, at which defendant, Pacheco, not ap-
pearing, W. Murray, Esq., was appointed Guardian
ad litem for the minor children, and the court
found the facts as above, and a conclusion of law
that plaintiff dia take title in fee absolute, under
the rule in Shelly's case, as construed and applied
From this
in Norris vs. Hensley (27 Cal., 438.)
judgment the defendants appealed; and cited
many important authorities, on contingent re-
mainders.

Wm. J. Graves, attorney for plaintiff and respondent. Walter Murray, for minors, and O. P. Evans, attorney for appellants.

BY THE COURT.

the deed have been void on its face? For if so, it
would have imposed no cloud on the plaintiff's ti-
tle, and the threat to sell, would not, under such
circumstances, have amounted to legal duress.
Bucknall vs. Story, 46 Cal., 589. The only authority
in law there was for the levy of a State tax for the
fiscal year 1872-3, is to be found in Section 3696 of
That section
the Political Code as it then stood.
was under review by this court in the case of
Houghton vs. Austin, 47 Cal., 646, and it was deci-
ded that so much of the section as authorized the
State Board of Equalization in determining the
rate of the State tax, to make an allowance for
delinquency in the collection of taxes, was uncon-
stitutional and void. The exigency of the case
did not require the court to decide, and it did not
decide whether the whole section was void on its
face. But we think the logical result of the decis-

Upon the authority of Norris vs. Hensley, (27th ion is, that the whole section was unconstitutional Cal., R. 439), the judgment is affirmed.

(Filed September 3, 1878.)

JOHN A. WILLS, Piff. and Respondent,"

[ocr errors]

ALEX. AUSTIN, TAX COLLECTOR OF CITY NO. .5545.
FND COUNTY OF SAN FRANCISCO,
Defendant and Appellant.

Appeal from Fifteenth District Court, 8. F.
DWINELLE, Judge.

EQUITY-TAXES PAID UNDER PROTEST-LEGAL DURESS
ILLEGAL AS ESSMENT OF STATE TAX of 1872-8.
The rate of State tax determined by the "tate Board
of Equalization, under Section 3696, Political
Code. by mak ng allowance for delinquercy in
collection, having been decided illegal, iu Hough
ton vs. Austin, 47 Cal., 646, Held, that sale and tx
deen under such an assessment would be vrid on
ite face, and hence no cl ud on a title and a
threar to sell in such a case does not amount to
legu dures.
That illewal clause, being blended with the section,
all become illegal-not being independent of the
rest, and Sec ion 66, Politica: Code, was void per

se, as to taxes that year.

A sale or taxes, of whic a part are illegal, makes the
whole sale and deed void. Payment of such taxe
is deem a voluptury, and ot under legal dur 88
-hence cannot be recovered. No need for a new
trial.
STATEMENT OF FACTS.

This action, (with 94 others of a similar nature), was brought to recover $351, taxes paid by plaintiff under protest for the year 1872-3, for illegal assessment, in the action of the State Board of Equali

zation.

Plaintiff alleges repeated threats of delinquency and sale, with added costs, on the part of defendant, in his official character, and hence, paid under protest, and now demands judgment for return of the money, with interest.

Upon a general denial by defendant, the cause was tried September 10, 1875, and a judgment given for plaintiff for $360 36.

Defendant moved for a new trial, which was denied, and an appeal taken November 2, 1875, from the order of denial.

Cowles & Drown, Attorneys for plaintiff and Respondent. W. C. Burnett, Attorney for defendant and appellant.

(NOTE-The three other cases decided with this, are similar in character, but involving different amounts claimed in recovery.)

BY THE COURT.

If the plaintiff's land had been sold by the defendant as Tax-Collector for the alleged taxes, and tax deed had been made to the purchaser, would

and void per se. The clause requiring an allow ance to be made for delinquency in the collection of the tax, is so blended with the remainder of the section, and the several clauses are so dependent on each other, that they must all stand or fall together.

The rule applicable to this point is forcibly stated by Chief Justice Shaw in Warren vs. Mayor of Charlestown, 2 Gray, 98, who, after stating the general proposition that some portions of a statute may be held to be constitutional, while another portion may be pronounced void, and that in certain cases the valid portion may stand and the other be rejected, proceeds to say, that "this must be taken with this limitation, that the parts, so held respectively constitutional and unconstitutional, must be wholly independent of each other. But if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the Legislature intended them as a whole, and that, if all could not be carried into effect, the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them." This case was quoted with approval in French vs. Teschmaker, 24 Cal., 548; and doubtless states the law correctly. Tested by this rule, the whole of section 3696 was void per se.

The Statute authorized the State Board of Equalization to determine the rate of taxation, coupled with the condition that it should make an allowance for delinquency in the collection of the tax. The power was to be exercised only on this condition, and the condition having failed on constitutional grounds, the power to determine the rate, fell with it. In other words, the two clauses were "dependent, conditional or connected," in the language of Chief Justice Shaw, and must stand or fall together. This becomes the more apparent from the fact that if the clause requiring an allowance for the delinquency be stricken out, the State Board of Equalization has no authority to fix any rate of taxation, except such as would produce the requisite amount of rev. enue, on the hypothesis that all the taxes would be paid; and as there will always be, under our revenue system, (as is demonstrated by long experience), a considerable delinquncy in the collection of taxes, the necessary result would be, that the rate fixed by the Board, and the only rate which, by the terms of the Statute, they had the right to establish, would be insufficient to produce the required amount of revenue.

But we need not elaborate this point further, as it is obvious, we think, that no portion of the section can stand, if the clause relating to the allow

ance for the deficiency, be stricken out; and the necessary result would be, that the tax collector's deed would have been void on its face.

Section 3786 of the Political Code required the Tax Collector's deed to recite, amongst other matters, that the land was sold for taxes, "giving the amount and year of the assessment." The deed therefore would have shown on its face that it was for a State tax purporting to have been levied for the fiscal year of 1872-3, whereas, as has been shown, there was no valid law authorizing a State tax to be levied or collected for that year. The deed would therefore have been void on its face

so far as it related to the State tax.

Nor would it have been otherwise, if it had appeared on the face of the deed, that the same land was sold at the same time, to the same purchaser, for a valid municipal tax. It is a familiar rule, that if land be sold for taxes a part of which are valid and a part illegal, the whole sale and the tax deed will be void.

For these reasons we are of opinion that when the plaintiff paid the money to the defendant, he was under no legal duress, and the payment must be deemed to have been voluntary. In such cases, it is well settled that the money cannot be recovered back; and the judgment in the court below should have been for the defendant.

Nor do we see any reason for remanding the cause for a new trial. It is evident the plaintiff could not improve his case on another trial. Judgment and order reversed and cause remanded with directions to the court below to dis

miss the action.

[blocks in formation]

CONTRACT FOR SIDEWALKS IN SAN FRANCISCO-EXCEPTION OF DEWERAGE.

STATEMENT OF CASE.

In this action, commenced January 4, 1877, plaintiff claims that on May 1, 1860, Third street between Market and Mission, was a public street, and ever since; and that the Board of Supervisors, on August 22, 1863, adopted a resolution that of Third street named, and thence proceeded leasphaltum sidewalks be constructed on the part gally and properly with notices, publications, bids, etc., and awarded the contract to plaintiff at the price of $3,728,50, and he completed the work on Commissioners, and accepted by the Board, with November 23, 1873, which was approved by the the exception of the sewerage of the small cross

streets.

and signed by the Mayor on January 5, 1964. It was thereafter finally passed and published,

On January 2, 1877, plaintiff presented a demand they rejected and refused to pay, and he defor payment of the $3,728,50 to the Board, which manded judgment for the amount and costs.

Defendant demurred, which was overruled on February 8th, with ten days time to answer. No answer was made, and at the expiration of the time judgment was entered, and recorded March 1, 1877.

ment, making the point that the sewerage was not Defendant appealed from the order and judgaccepted by the Board.

spondent. W. C. Burnett, attorney for defendant D. H Whittemore, attorney for plaintiff and reand appellant.

Judgment and orders now reversed and cause remanded for new trial.

[blocks in formation]

The defendant gave to plaintiff, on August 7, 1872, his note at 12 months, for $25,000, bearing interest at one per cent. per month, payable monthly, and if not so paid, to draw the same interest; and if unpaid for 10 days, plaintiff can, at his option, declare all the principal and interest due and payable, and can enforce payment, with five per cent. counsel fees and commissions. All secured by a mortgage on the 160 acres embracing the Napa Soda Springs property, with four other tracts of land of 160 acres each, in same vicinity.

Also, on January 10, 1877, defendant executed a mortgage on the same premises to one C. W. Howard, with his promissory note for $27,000.

Plaintiff claims as due at the commencement of this action, a balance of principal $15,000, and interest for the two months from June 7 to August 7, 1873, on the $25,000; $250, with interest on it; and interest on the $15,000 for one month from May 7 to June 7, 1877: $150 with interest on it, and demands, judgment, and a foreclosure and sale of the mortgaged premises.

Defendant's answer claims that he has paid $10,

Appeal from the Twelfth District Court, San Fran- 000 on the principal; and all interest to May 7, 1877,

cisco.

DAINGERFIELD, Judge.

leaving only due $15,000 principal, and interest 75, from May 7 to 22, 1877, when he made a tender

to plaintiff of the said amount to extinguish the

note, but plaintiff refused, claiming the $500 for THE AMERICAN BAR ASSOCIATION. the two month's interest in 1873.

The cause was tried at the October term of 1877, and the court found that only $15,075 was due on May 22, 1877, which defendant tendered to plaintiff by check on Falkner, Bell, & Co., also offering to get gold instead if required, but plaintiff refused, only because the amount was not enough. Judgment given plaintiff for $15,000, with interest from May 7, 1877, to entry of judgment, at one per cent. per month, computed monthly; and a de cree of foreclosure of the mortgage, with $400 counsel fees, and costs for plaintiff to the time of Aling of defendant's answer, but not since. Judg. ment entered on November 9, 1877. Defendant appealed from the judgment on December 3, 1877, urging that his tender should have cut off all interest and the $400 for counsel fees, and that the

judgment be so modified.

Judgment now affirmed. Botts & Sullivan, aDo C. A. Tuttle, attorneys for plaintiff and respondent. Thos. P. Stoney, attor ney for defendant and appellant.

SUPREME COURT RECORD.

[JULY TERM, 1878.]

NO MORE CASES CALLED.-On Monday, Aug. 26, it was ordered that no more cases on the regular published calendar will be called this term.

The court will hear all cases that have been called and announced "ready."

The organization of "The American Bar Association" is one of the most noteworthy events in the history of jurisprudence in this country. To assimilate and unify the laws of the several States, especially so far as they relate to commerce and to crime, is a consummation devoutly to be wished by every lover of his country, for not only will it facilitate intercourse and harmony among

the people, but it will also be one of the strongest bonds of Union among the several States. The meeting at Saratoga called together an unusual number of representative lawyers and jurists-men who have made their mark either in the forum or upon the bench, and the interest and enthusiasm manifested in the undertaking show unmistak. ably that the time is come for such an or ganization. To our thinking, it would have been better could such an association have been composed of delegates from bar associa

APPEALS DISMISSED-September 2nd-tions of the several States just as State bar No 6207-People ex rel. Aĥart vs. County associations would be more influential— Court of Placer Co. Application for writ, denied.

September 5th-No. 6059.-Moore vs. Mo Aller et al-on mothion of Burch for Appell.

ant.

CASES CONTINUED-September 2nd-No. 5686-Merle vs. Thorp et al-for the term, by stipulation.

Sept. 3d.-No. 5811-Gleason vs. Gleason
For the term-on motion of Adams.

REHEARING September 7th.-No. 6025Ybarra vs. Lorenzana et al.-Stay of Proceedings,- -on motion of Hartman, and Petition filed.

ADMITTED TO PRACTICE.-On August 28th -George W. Langan, -on motion of Cutler McAllister, and license from Supreme Court of Washington Territory.

more potent if formed of delegates from county or local associations, but with the few State bar associations which now exist, such a formation is at present impracticable, and that which has been made at Saratoga seems to be the best substitute. The proceedings of the two days through which the meeting extended are notable for the absence of "talk," to which lawyers are sometimes addicted. The business in hand was discussed by the best men present, and with an obvious desire to secure the best organization-the best results possible. This, we believe, has been done, and under the administration of the men who have it in charge, "The American Bar Association " can hardly fail to prove of great service to the profes

On August 29th-Michael W. Pepper, on motion of L. S. Clark, and license from Su-sion and to the country. preme Court of Wisconsin.

Sept. 3d.-Thornton Carusi-on motion of Hon. Wm. M. Stewart, and license from Supreme Court of District of Cloumbia.

ITS PROCEEDINGS.

In pursuance of a resolution adopted by the Jurisprudence Department of the American Social Science Congress at its last annual

justice and uniformity of legislation throughout the Union, uphold the honor of the profession of the law, and encourage cordial intercourse among the members of the American Bar.

Qualifications for Membership.

session, an invitation was sent to many of the leading lawyers and jurists of the country to meet at Saratoga on the 21st of August, for the purpose of establishing an American Bar Association. The invitation was signed by leading lawyers of the sev- ART. II.-Any person shall be eligible to eral States, among whom were William M. membership of this Association who shall be, Evarts and John K. Porter of New York; been, a member in good standing of the bar and shall for five years next preceding have Benjamin H. Bristow, of Kentucky; J. of any State, and who shall also be nomiRandolph Tucker, of Virginia: Stanley Mat-nated as hereinafter provided. thews, of Ohio; Lyman Trumbull, of Ilinois, and Charles R. Train, of Massachusetts.

ance.

Officers aud Committees.

in succession; one Vice-President from each State; a Secretary; a Treasurer; a Council consisting of one member from each State; the Council shall be a Standing Committee on nominations for office; an Executive Committee, to be composed of the Secretary and Treasurer, together with three members of the Council, to be chosen by the Association, one of whom shall be Chairman of the Committee.

ART. III.-The following officers shall be At 10 o'clock on Wednesday the lawyers elected at each annual meeting for the year ensuing : A President-the same person convened in the Supreme Court room at Sar-shall not be elected President two years atoga over two hundred members of the bars of the several States being in attendThe meeting was called to order by Hon. Roger Averill, of Connecticut. The Hon. F. C. Latrobe, of Baltimore, was elected temporary Chairman, and Francis Rawle, of Philadelphia, and Isaac Grant Thompson, of Albany, temporary Secretaries. A Committee on permanent organization was then appointed, which reported the name of Benjamin H. Bristow, of Kentucky, for Chairman, and Francis Rawle and Isaac Grant Thompson for Secretaries.

A Committee of nine was appointed to report a Constitution and By-laws. This Committee consisted of Carleton Hunt, of New Orleans, Chairman; Simeon E. Baldwin, of the Yale College Law School; Prof. H. M. Hitchcock, of St. Louis; E. J. Phelps, of Vermont; Professor James S. Pirtle, of Kentucky; Rufus King, of Cincinnati; ExGovernor William Gaston, of Massachusetts; Hon. Henry Smith, of Albany, and Hon. Henry Green, of Pennsylvania.

This Committee. after a conference of three hours, reported the following Constitution, which was, after some debate, adopted.

CONSTITUTION.

Name and Object.

ARTICLE I.-This Association shall be known as The American Bar Association." Its object shall be to advance the science of jurisprudence, promote the administration of

The following Committees shall be annually appointed by the President for the year each: On Jurisprudence and Law Reform; ensuing, and shall consist of five members on Judicial administration and Remedial Procedure; on Legal Education and Admissions to the bar; on Commercial Law; on Law; on Publication; on

International
Grievances.

A majority of those members of any committee, including the Council, who may be present at any meeting of the Association, for the purposes of such meeting. shall constitute a quorum of such committee

The Vice-President for each State, and not less than two other members from such tute a Local Council for such State, to which State, to be annually elected, shall constishall be referred all applications for membership from such State. The Vice-President shall be ex-officio Chairman of such Council. Election of Members.

ART. IV.-All nominations for membership shall be made by the Local Council of the State, to the bar of which the persons nominated belong. In default of such a Council in any State, nominations may be made by the General Council of the Association. All elections shall be by ballot.

Several nominees, if from the same State, may be voted for upon the same ballet; and

in such case placing the word "No" against any name or names upon the ticket shall be deemed a negative vote against such name or names, and against those only. Five negative votes shall suffice to defeat an election. By-Laws.

ART. V.-By-laws may be adopted at any annual meeting of the Association, by a majority of the members present. It shall be the duty of the Executive Committee, without delay, to adopt suitable By-laws, which shall be in force until rescinded by the Association.

[blocks in formation]

ART. IX.-All members of the Conference adopting the Constitution, aud all persons elected by them, upon the recommendation of the Committee of five appointed by such Conference, shall become members of the Association upon payment of the annual dues for the current year herein provided for. Amendments.

ART. X.-This Constitution may be altered or amended by a vote of three-fourths of the members present at any annual meeting, but no such change shall be made at any meeting at which less than thirty members are present.

Construction.

ART. XI.-The word State, wherever used in this Constitution, shall be deemed to be equivalent to State, Territory, and the District of Columbia.

The Council on Thursday morning reported the following names as nominees for the several offices of the Association, and they were unanimously elected:

President James O. Broadhead, St. Louis, Missouri.

Vice-Presidents-Arkansas, Geo.. A. Gallagher; Connecticut, Origen S. Seymour; Delaware, Anthony Higgins; District of Columbia, H. H. Wells; Florida, Chas. W. Jones; Georgia, A. R. Lawton; Illinois, David Davis; Indiana, Thomas F. Davidson; Iowa, W. G. Hammond; Kentucky, Benjamin H. Bristow; Louisiana, Thomas J. Semmes; Maryland, Richard J. Gittings; Maine, A. A. Strout; Massachusetts, Wm. Gaston; Michigan, Thomas M. Cooley; Mississippi, Jas. T. Harrison; Missouri, Henry Hitchcock; Nebraska, George K. Armory; New Hampshire, C. W. Stanley; New Jersey, A. Q. Keasbey; New York, Clarkson N. Potter; Ohio, Rufus King; Pennsylvania, George M. Biddle; Rhode Island, C. C. Van Zant; South Carolina, H. E. Young; Tennessee, Wm. F. Cooper; Vermont, Edward J. Phelps; Virginia, J. Randolph Tucker; West Virginia, John A. Hutchinson. Secretary-Edward Otis Hinkley, Balti

more.

Treasurer-Francis Rawle, Philadelphia. A local council for each State was also reported and elected. That for New York is comprised of the following gentlemen: John Winslow, Brooklyn; William Allen Butler, New York; Matthew Hale, Albany, and William C. Ruger. Syracuse.

The following gentlemen were elected to constitute, with the Secretary and Treasurer, the Executive Committee: Simeon E. Baldwin of New Haven: William A. Fisher of Baltimore; and Hon. Luke P. Poland of Vermont.

Besides the gentlemen present, in response to the invitation, and who alone participated in the organization and were by the Constitution made members, a large number of lawyers of the several States who had, by letter or otherwise, expressed a desire to join the Association, were elected members on the nomination of the Council.

The meeting was one of unusual interest. The utmost harmony and goodwill prevailed, and there was an entire absence of that disposition to quibble and debate little points

« ForrigeFortsett »