Imágenes de páginas

tor of the will, and her own three minor children, the deed have been void on its face? For 11 80, it

nose intereste he claims the estate should would have imposed no cload on the plaintiff's tibe held and managed. Cause tried at January | tle, and the threat to sell, would not, under such term of 1871, at which defendant, Pacheco, not ap- circumstances, have amounted to legal duress. pearing, W. Murray, Esq., was appointed Guardian Bucknall vs. Story, 46 Cal., 689. The only authority ad litem for the minor children, and the court in law there was for the levy of a State tax for the found the facts as above, and a conclusion of law fiscal year 1872-3, is to be found in Section 3696 of that plalatia dia take title in fee absolute, under the Political Code as It then stood. That section the rule in Shelly's case, as construed and applied was under review by this court in the case of in Norris vs. Hensley (27 Cal.. 438.) From this Houghton 08, Austin, 47 Cal., 646, and it was deci. judgment the defendants appealed: and citedded that so much of the section as authorized the inany important authorities, on contingent re State Board of Equalization in determining the mainders.

rate of the State tax, to make an allowance for Wm. J. Graver, attorney for plaintify and re- delinquency in the collection of taxes, was unconspondent. Walter Murray, for minore, and 0. P. Istitutional and void. The exigency of the case Evans, attorney for appellants.

did not require the court to decide, and it did not BY THE COURT.

decide whether the whole section was void on its

face. But we think the logical result of the decisUpon the authority of Norris V8. Bensley, (27

lon is, that the whole section was unconstitutional Cal., R. 439), the judgment 18 affirmed.

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 (Filed September 3, 1878.)

the section, and the several clauses are 80 de

pendent on each other, that they must all stand or JOHN A. WILLS, PIN. and Respondent,

lall together. 18.

The rule applicable to this point is torcibly ALEX. AUSTIN, TAX COLLECTOR OF CITY NO..6646.

I stated by Chief Justice Shaw in Warren vs. Mayor AND COUNTY OF SAN FRANCISCO

of Charlestoron, 2 Gray, 98, who, after stating the Defendant and Appellant.

general proposition that some portions of a stat. Appeal from Fifteenth District Court, 8. F. ute may be held to be constitutional, while another DWINELLE, Judge.

portion may be pronounced vold, and that in cer

tain cases the valid portion may stand and the BOUITT-TATEN PAID UNDER PROTEAT-LEGAL DURESS

other be rejected, proceeds to say, that “this must ILLEGAL AB*EBBXENT OF STATE Tax of 18727. The rain US State tax determined by the wtst Board

be taken with this limitation, that the parta, of Bqualizatior, under Sectia 3606, Political neld respectively constitutional and une Code. by msk as allowana foi detinquency in tional, must be wholly independent of each other. collection, bavisk beep di riced illegal, iu Hough. But if they are 80 mutually connected with and ton vs. Austin, 17 Cal., 616, Held, that. 89e and tix

dependent on each other, as conditions, consider. doen vader euch in 1890.8ement would be void no!

ations, or compensations for each other, as to war. Ito face, and hence to cl ud op • title ; inds thresr to sell in such caso does not amount to

rant a belief that the Legislature intended them leri dores

as a whole, and that, if all could not be carried That Diewal clanse, being blended 'th ibe rection, I into effect, the Legislature would not pass the reg

al becomes illegal-Dot being independout of tbe idue independently, and some parts are uncon. rest, and Sec 100098, Politica. Code, Wau void per stitutional, all the provisions which are thus de.

se, as to taxes that year. A sale or taxes, or wbic part are illeri, makes the

the pendent, conditional, or connected, must fall whole sale sod deed void. Paymene ol such taxes w cem_TA18 case was quoted win approval in is deeme a voluntary, tudot under lepa) dur 88 | French 08. Teschmaker, 24 Cal., 648 ; and doubtless -benco cannot be ecoverod. No need for a new states the law correctly. Tested by this rule, the trisl.

whole of section 3696 was void per se. STATEMENT OF FACTS.

The Statute authorized the State Board of This action, (with 94 others of a similar nature).

Equalization to determine the rate of taxation, was brought to recover $351, taxes paid by plaintif !

coupled with the condition that it should make an onder protest for the year 1872-3, for illegal assess

allowance for delinquency in the collection of the ment, in the action of the State Board of Equall.

tax. The power was to be exercised only on this

condition, and the condition having failed on Plainti alleges repeated threats of delinquency

constitutional grounds, the power to determine and sale, with added costs, on the part of defend

the rate, fell with it. In other words, the two ant, in his omcial character, and hence, paid un

clauses were "dependent, conditional or con. der protest, and now demands judgment for re

nected," in the language of Chief Justice Shaw, turn of the money, with interest.

and must stand or fall together. This becomes Upon a general denial by defendant, the cause

the more apparent from the fact that if the clause was tried September 10, 1875, and & judgment

requiring an allowance for the delinquency be

stricken out, the State Board of Equalization has Defendant moved for a new trial, which was

I no authority to fix any rate of taxation, except denied, and an appeal taken November 2, 1875.

such as would produce the requisite amount of rev. from the order of depial.

enue, on the hypothesis that all the taxes would Cowles & Drowon, Attorneys for plaintin and Re

be paid; and as there will always be, under our spondent. W. c. Burnett, Attorney for defendant

| revenue system, (as 18 demonstrated by long exand appellant.

perlence), a considerable delinquncy in the collec(Non-The three other cases decided with this, I tion of taxes, the necessary result would be, that sre similar in character, but involving diferent the rate fixed by the Board, and the only rate amounts claimed in recovery.)

which, by the terms of the Statute, they had the BY THE COURT.

right to establish, would be insufficient to pro

duce the required amount of revenue. 11 the plaintiff's land had been sold by the de But we need not elaborate this point further, eg fendant is Tax Collector for the alleged taxes, and it is obvious, we think, that no portion of the secter deed had been made to the purchaser, would Ition can stand, 11 the clause relating to the allow.

zation in the BIEN

"In the Taipendent, her words, termine

de Defendant mig for $360 1875, and at the cause and

familiar street ception of the accepted or approved" br

ance for the deficiency, be stricken out; and the CONTRACT FOR BIDEWALKS ON SAN FRANCISCO-Kion necessary result would be, that the tax collector's TION OF BEWERAGE. deed would have been void on its face.

STATEMENT OF CABE. Section 3786 of the Political Code required the

In this action, commenced January 4, 1877, Tax Collector's deed to recite, amongst other mat

I plaintin claims that on May 1, 1860, Third street ters, that the land was sold for taxes, "giving the

between Market and Mission, was a public street, amount and yent of the assessment." The deed therefore would have shown on its face that it was

and ever since; and that the Board of Supervis

ors, on August 22, 1863, adopted & resolution that for & Btate tax purporting to have been levied for

| agphaltum sidewalks be constructed on the part the fiscal year of 1872-3, whereas, as has been

of Third street named, and thence proceeded leshown, there was no valid law authorizing & State

gally and properly with notices, publications, bids, tax to be levied or collected for that year. The

etc., and awarded the contract to plaintin at the deed would therefore have been void on its face

price of $3,728,50, and he completed the work on so far as It related to the State tax.

November 23, 1873, which was approved by the Nor would it have been otherwise, if it had ap

Commissioners, and accepted by the Board, with peared on the face of the deed, that the same

the exception of the sewerage of the small cross land was sold at the same time, to the same pur. chaser, for a valid municipal tax. It is a familiar

It was thereafter finally passed and published, rule, that 11 land be sold for taxes a part of which

and signed by the Mayor on January 6, 1864. are valid and a part illegal, the whole sale and the

On January 2, 1877, plaintill presented a demand tax deed will be void.

for payment of the $3,728,50 to the Board, which For these reasons we are of opinion that when

they rejected and refused to pay, and he dethe plaintift paid the money to the defendant, he

manded judgment for the amount and costs. was under no legal duress, and the payment must

Defendant demurred, which was overruled on be deemed to have been voluntary. In such cases,

February 8th, with ten days time to answer. No 1t 18 well settled that the money cannot be recov.

answer was made, and at the expiration of the ered back; and the judgment in the court below

time judgment was entered, and recorded March should have been for the defendant.

1, 1877. Nor do we see any reason for remanding the

Defendant appealed from the order and judg. Cause for a new trial. It is evident the plaintift

ment, making the point that the sewerage was not could not improve his case on another trial.

accepted by the Board. Judgment and order reversed and cause re

DH Whitemore, attorney for plaintif and remanded with directions to the court below to dis

spondent. W. C. Burnett, attorney for defendant miss the action.

and appellant. BY THE COURT.

Judginent and orders now reversed and cause (Filed September 3, 1878.)

remanded for new trial. MAHE

VB. No.6847. AUBTIN.

(Decided September 9, 1878.) On the authority of Wil : V8. Austin, decided at i J. HENRY WOOD, PIB. and Resp.,) the present term, the judgment and order are re

YO. versed and cause remanded with directions to the

JNO. P. JACKSON. AND CHAS. W. No. 6949.. court below to dismiss the action.

HOWARD, Defts. and Appels.)

Appeal from the Seventh District Court, Napa (Filed September 3, 1878.)


Wu. C. WALLACE, Judge. VB. NO. 5548.


OLOBURE, On the authority of Willa vs. Austin, decided at

STATEMENT OF THE CASE. the present term, the judgment and order are re. The defendant gave to plaintia, on August 7, versed and cause remanded with directions to the 1872, his note at 12 months, for $25,000, bearing in. court below to dismiss the action.

terest at one per cent. per month, payable monthl.

and if not so paid, to draw the same interest : and BY THE COURT.

11 unpaid for io days, plaintif can, at his option, (Filed September 3, 1878.)

declare all the principal and interest doe and pay. TEBCHMAKER)

able, and can enforce payment, with ave per cent. V8 No. 5550.

counsel fees and commissions. All secured by & AUSTIN.

mortgage on the 160 acres embracing the Napa . On the authority of Willa vs. Austin, decided at

Soda Springs property, with tons other tracts of the present term, the judgment and order are re

land of 160 acres each, in same vicinity. versea and cause remanded with directions to the

Also, on January 10, 1877, defendant executed :

mortgage on the same premises to one c. W.How. court below to dismiss the action.

ard, with his promissory note for $27,000.

Plaintif claims as due at the commencement of

this action, & balance of principal $15,000, and in. Unwritten Vectolon,

terest for the two months from June 7 to August (Decided September 3, 1878.)

7, 1873, on the $20.000 : $250, with interest on it : G. RAIBCB, Plaintiff and Respondent,

and interest on the $10,000 for one month from Mai

7 to June 7, 1877 : $150 with interest on it, and de

No. 6598 mands, Judgment, and a foreclosure and sale of CITY AND COUNTY OF SAN FRANCIRCO,

the mortgaged premises. Defendants and Appellante.

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 7,1871, cisco.

leaving only due $15,000 principal, and interes DAINGERFIELD, Judge.

76, trom May 7 to 22, 1877, when he made a tendor

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to plaintin of the said amount to extinguish the note, but plaintis retused, 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 $15,076 was due on The organization of “The American Bar May 22, 1877, which defendant tendered to plain. tid by check on Falkner, Bell, & Co., also onering

Association " is one of the most noteworthy to get gold instead if required, but plaintia refused, only because the amount was not enough. Judgment given plaintin for $18,000, with interest from May 7, 1877, to entry of Judgment, at one per of the several States, especially 80 far as cent. per month, computed monthly : and & de cree of foreclosure of the mortgage, with $400 they relate to commerce and to crime, is a Counsel fees, and conta for plaintid to the time of Aling of defendant's answer, but not since. Judg. consummation devoutly to be wished by ment entered on November 9, 1877. Defendant

every lover of his country, for not only will appealed from the judgment on December 3, 1877, urging that his tender should have cut off all in. it facilitate intercourse and harmony among terest and the $400 for counsel fees, and that the Judgment be so modified.

the people, but it will also be one of the Judgment now amrmed. Botto de Sullivan, ado C. A. Tuttle, attorneys for

strongest bonds of Union among the several plaints and respondent. Thós. P. Stonoy, attor. States. The meeting at Saratoga called toney for defendant and appellant.

gether an ynusual number of representative

lawyers and jurists-men who have made SUPREME COURT RECORD. their mark either in the forum or upon the (JULY TEKM, 1878.)

bench, and the interest and enthusiasm mani. No MORE CASES CALLED.-On Monday, fested in the undertaking show unmistak. Aug. 26, it was ordered that no more cases ably that the time is come for such an or. on the regular published calendar will be

ganization. To our thinking, it would have called this torm.

The court will hear all cases that have been better could such an association have been called and announced "ready.” 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. Ahart vs. County associations would be more influentialCourt of Placer Co. Application for writ,

more potent if formed of delegates from denied.

county or local associations, but with the September 5th-No. 6059.--Moore vs. Ma Aller et al-on mothion of Burch for Appell.

few State bar associations which now exist, ant.

such a formation is at present impracticable, CASES CONTINUED_September 2nd-No.

and that which has been made at Saratoga 5686—Merle vs. Thorp et al-for the term, by

| seems to be the best substitute. The prostipulation.

ceedings of the two days through which the Sept. 3d.-No. 5811-Gleason vs. Gleason meeting extended are notable for the absence For the term-on motion of Adams. of “talk," to which lawyers are sometimes

REHEARING—September 7th.- No. 6025— addicted. The business in hand was disYbarra vs. Lorenzana et al. -Stay of Proceed cussed by the best men present, and with an ings,-on motion of Hartman, and Petition lohviona desire to seenre the best organiza. filed.

tion-the best results possible. This, we ADMITTED TO PRACTICE. -On August 28th believe, has been done, and under the admin. -George W. Langan,-op motion of Cutler McAllister, and license from Supreme Court of

istration of the men who have it in charge, Washington Territory.

“The American Bar Association " can hardly On August 29th-Michael W. Pepper. - fail to prove of great service to the profeson motion of L S. Clark, and license from Su. sion and to the country. preme Court of Wisconsin.

Its PROCEEDINGS. Sept. 3d.—Thornton Carusi-on motion of In pursuance of a resolution adopted by the Hon. Wm. M. Stewart, and license from 30. Jurisprudence Department of the American promo Court of District of Cloumbia. 'Social Science Congress at its last annual

session, an invitation was sent to many of justice and uniformity of legislation through. the leading lawyers and jurists of the counout the Union, uphold the honor of the protry to meet at Saratoga on the 21st of Au.

fession of the law, and encourage cordial in

tercourse among the members of the American gust, for the purpose of establishing an Bar. American Bar Association. The invitation

Qualifications for Membership. 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.

and shall for five years next preceding have Evarts and John K. Porter of New York ; he

ew York: been, a member in good standing of the bar Benjamin H. Bristow, of Kentucky; J. of any State, and who shall also be nomi. Randolph Tucker, of Virginia ; Stanley Mat. nated as hereinafter provided. thews, of Ohio ; Lyman Trumbull, of Il.i.

Oficers oud Committees. nois, and Charles R. Train, of Massachusetts.

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 bar. shall not be elected President two years atoga over two hundred members of the in succession ; one Vice-President from each bars of the several States being in attend. State ; a Secretary ; a Treasurer ; a Council ance. The meeting was called to order by

consisting of one member from each State ;

the Council shall be a Standing Committee Hon. Roger Averill, of Connecticut. The on nominations for office ; an Executive ComHop. F. C. Latrobe, of Baltimore, was mittee, to be composed of the Secretary and elected temporary Chairman, and Francis Treasurer, together with three members of Rawle, of Philadelphia, and Isaac Grant

the Council, to be chosen by the Association,

At one of whom shall be Chairman of the ComThompson, of Albany, temporary Secretaries. mittee.

A Committee on permanent organization. The following Committees shall be annu. was then appointed, which reported the ally appointed by the President for the year name of Benjamin H. Bristow, of Kentucky, le

ensuing, and shall consist of five members

Kentucky, each : On Jurisprudence and Law Reform; for Chairman, and Francis Rawle and Isaac on Judicial administration and Remedial Grant Thompson for Secretaries.

Procedure ; on Legal Education and AdmisA Committee of nine was appointed to sions to the bar ; on Commercial Law; on report a Constitution and By-laws.

International Law; on Publication ; on

This Grievances. Committee consisted of Carleton Hunt, of A majority of those members of any comNew Orleans, Chairman ; Simeon E. Bald. mittee, including the Council, who may be win, of the Yale College Law School : Prof. present at any meeting of the Association, H. M. Hitchcock, of St. Louis ; E. J. Phelps, for the purposes of such meeting.

shall constitute a quorum of such committee of Vermont; Professor James S. Pirtle, of The Vice-President for each State, and Kentucky; Rufus King, of Cincinnati ; Ex. not less than two other members from such Governor William Gaston, of Massachusetts ; |

State, to be annually elected, shall consti.

tute a Local Council for such State, to which Hon. Henry Smith, of Albany, and Hon. I shall be referred all applications for member. Henry Green, of Pennsylvania.

ship from such State. The Vice-President This Committee. after a conference of three shall be ex-officio Chairman of such Council. hours, reported the following Constitution,

Election of Members. which was, after some debate, adopted.

ART. IV.-All nominations for member.

ship shall be made by the Local Council of CONSTITUTION.

the State, to the bar of which the persons Name and Object.

nominated belong. In default of such a

Council in any State, nominations may be ARTICLE I.-This Association shall be made by the General Council of the Associaknown as “ The American Bar Association." |tion. All elections shall be by ballot. Its object shall be to advance the science of Several nominees, if from the same State, jurisprudence, promote the administration of may be voted for upon the same ballct; and in such case placing the word “No” against

Construction any name or names upon the ticket shall be ART. XI.-The word State, wherever used deemed a negative vote against such name or in this Constitution, shall be deemed to be names, and against those only. Five pega- equivalent to State, Territory, and the Dis. tive votes shall suffice to defeat an election. Itrict of Columbia. By-Laws.

The Council on Thursday morning reportART. V.-By-laws may be adopted at any

ed the following names as nominees for the

several offices of the Association, and they annual meeting of the Association, by a ma- | jority of the members present. It shall be

were unanimously elected: the duty of the Executive Committee, with.

President James O. Broadhead, St. Louis,

Missouri. out delay, to adopt suitable By-laws, which

Vice-Presidents-Arkansas, Geo.. A. Gallashall be in force until rescinded by the As.

gher; Connecticut, Origen S. Seymour; sociation.

Delaware, Anthony Higgins ; District of Duer.

Columbia, H. H. Wells; Florida, Clas. W. ART. VI.-Each member shall pay five Jones ; Georgia, A. R. Lawton ; Illinois, dollars to the Treasurer as annual dues, and David Davis; Indiana, Thomas F. Davidson; no person shall be qualified to exercise any Iowa, W. G. Hammond ; Kentncky, Benjaprivilege of membership who is in default.min H. Bristow; Louisiana, Thomas J. Such dues shall be payable and the payment Semmes ; Maryland, Richard J. Gittings ; thereof euforced as may be provided by the Maine, A. A. Strout; Massachusetts, Wm. By-laws. Members shall be entitled to re- Gaston ; Michigan, Thomas M. Cooley; Misceive all publications of the Association free sissippi, Jas. T. Harrison ; Missouri, Henry of charge.

Hitchcock; Nebraska, George K. Armory ; Annual Address.

New Hampshire, C. W. Stanley ; New JerART. VII.-The President shall open sey, A. Q. Keasbey; New York, Clarkson each annual meeting of the Association with N. Potter ; Ohio, Rufus King ; Pennsylvaan address, in which he shall communicate nia, George M. Biddle; Rhode Island, Č. C. the most noteworthy changes in statute law, Van Zant; South Carolina, H. E. Young; on points of general interest, made in the Tennessee, Wm. F. Cooper; Vermont, Ed. several States and by Congress during the ward J. Phelps ; Virginia, J. Randolph preoeding year. It shall be the duty of the Tucker; West Virginia, John A. Hutchinson. members of the General Council from each Secretary-Edward Otis Hinkley, Balti. State to report to the President on or before more. the first day of May, annually, any such leg

Treasurer_Francis Rawle, Philadelphia. islation in his State.

A local council for each State was also reAnnual Meetings.

ported and elected. That for New York is ART. VIII. - This Association shall meet | Wir

comprised of the following gentlemen : John

meet | Winslow, Brooklyn; William Allen Butler, annually in the month of July or August, at New York; Matthew Hale, Albany, and such time and place as the Executive Com.

William C. Ruger. Syracuse. mittee may select, and those present at such

The following gentlemen were elected to meeting shall constitute a quorum.

constitute, with the Secretary and Treasurer, Members.

the Executive Committee: Simeon E. Bald. ART. IX.-All members of the Conference

win of New Haven : William A. Fisher of adopting the Constitution, aud all persons

| Baltimore ; and Hon. Luke P. Poland of elected by them, upon the recommendation

Vermont. of the Committee of five appointed by such

hl Besides the gentlemen present, in response Conference, shall become members of the As

to the invitation, and who alone particisociation upon payment of the annual dues

| pated in the organization and were by the for the current year herein provided for.

Constitution made members, a large number

of lawyers of the several States who had, Amendmenta,

by letter or otherwise, expressed a desire to ART. X.- This Constitution may be altered | join the Association, were elected members or amended by a vote of three-fourths of the on the nomination of the Council. members present at any annual meeting, but The meeting was one of unusual interest. no such change shall be made at any meet- The utmost harmony and goodwill prevailed, ing at which less than thirty members are and there was an entire absence of that dispresent.

position to quibble and debate little points

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