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Davis v. City & County of San Francisco

115 Cal. 67 Court Department Two. Decision date 1896-11-24 Docket S. F. No. 332 English

Delivered by *68 McFarland, J.

Contents

Majority

p. 67
[S. F. No. 332.
Department Two.
November 24, 1896.]
ANDREW M. DAVIS, Appellant, v. THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Headnote

Dupont Street Act — Special Assessment of Taxes—Payment Under Protest—Action against City and County—Construction of Code-Section 3819 of the Political Code has no application to the recovery back of taxes paid under protest, which were in fact founded upon special assessments for a specific purpose under the act of the legislature appoveid March 23, 1876, known as the “Dupont Street Act”; and no action can be maintained therefor against the city and county.
Appeal from a judgment of the Superior Court of the City and County of San Francisco.
The tax collector of the city and county of San Francisco had advertised for sale, and was about to sell, certain property on Dupont street for nonpayment of taxes for the widening of said street, for each and every fiscal year, from the fiscal year ending June 30, 1879, to the fiscal year ending June 30, 1893, both inclusive, and thereupon certain of the property owners paid to said tax collector, under protest, the amount of the taxes for each of said fiscal years. The protests were in writing, and specified the grounds upon which it was claimed the assessments were void. Within six months thereafter they assigned their respective demands to the plaintiff, who brought suit thereon against the city and county of San Francisco, for the recovery of said respective amounts, aggregating four hundred and eleven thousand three hundred and two dollars and sixty-six cents. Defendant demurred to the complaint upon the ground that the court had no jurisdiction, and that the complaint failed to state a cause of action. The court below sustained the demurrer, and gave judgment for defendant, from which judgment this appeal is taken.
Naphtaly, Freidenrich & Ackerman, for Appellant.
H. T. Creswell, Freeman & Bates, and E. B. & George H. Mastick, for Respondent,

A general demurrer to the complaint was sustained, and plaintiff having declined to amend, judgment was rendered for defendant. Plaintiff appeals from the judgment.

The purpose of the action is to recover of the city and county of San Francisco, under the provisions of section 3819 of the Political Code, certain alleged taxes averred to have been paid by appellant under protest. But the alleged taxes were, in fact, founded upon special assessments for a specific purpose under an act of the legislature approved March 23,1876 (Stats. 1875-76, p. 433), generally known as the “Dupont Street Act,” to which the said section 3819 of the Political Code does not apply, and for which no action can be maintained against said city and county. This was expressly decided by this court in Easterbrook v. San Francisco, 44 Pac. Rep. 800 , and upon the authority of that case the judgment in the case at bar must be affirmed. (See, also, Elberg v. San Luis Obispo Co., 112 Cal. 316 ; Pacific Mut. L. Ins. Co. v. San Diego, 112 Cal. 314 .)

It is proper to state that Easterbroolc v. San Francisco, supra, had not been decided when this appeal was taken, or when the briefs in this case were filed.

The judgment is affirmed.

Henshaw, J., and Temple, J., concurred.

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