« AnteriorContinuar »
tor of the will, and her own three minor children, the deed have been void on its face ? For 11 80, it in whose interests he claims the estate should would have imposed no cload on the plaintiff's C1be held and m aged. Cause tried at January tle, an 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 3096 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 cited ded that so much of the
section as authorized the many Important authorities, on contingent re-State Board of Equalization in determining the mainders.
rate of the State tax, to make an allowance for Wim. J. Graves, attorney for plaintif and re- delinquency in the collection of taxes, was unconspondent. Walter Murray, for minors, and 0. P.stitutional and void. The exigency of the case Evans, attorney for appellants.
did not require the court to decide, and it did not
decide whether the whole section was void on its DY THE COURT. Upon the authority of Norris vs. Hensley, (27th ion
is, that the whole section was unconstitutional
face. But we think the logical result of the decis. 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 so deJOHN A. WILLS, PIQ. and Respondent,
pendent on each other, that they must all stand or
lall together. 18.
The rule applicable to this point is forcibly ALEX. AUSTIN, TAX COLLECTOR OF CITY NO..5648.
stated by Chief Justice Shaw in Warren vs. Mayor IND COUNTY OF SAN FRANCISCO, Defendant and appellant.
of Charlestoron, 2 Gray, 98, who, after stating the
general proposition that some portions of a statAppeal from Fifteenth District Court, 8. F. ute may be held to be constitutional, while
another DWINELLE, Judge.
portion may be pronounced void, and that in cer.
tain cases the valid portion may stand and the EQUITT-TAXER PAID UNDER PROTEST-LEGAL, DORES8 other be rejected, proceeds to say, that “this
must ILLEGAL AB*EBSXENT OF STATE TAX of 1872-4. The raia U State tus determined by the NtatBoard
be taken with this limitation, that the parts, so of Equalizatior, under Sectia 1806, Political held respectively constitutional and unconstitu. Code. by mosk nx allowane for delinquency in tional, must be wholly independent of each other. collection, bavioK been derided illegal, iu Hough. But if they are so mutually connected with and ton 08. Austin, 17 Cal., 646. Held, that sole and 111 dependent on each other, as conditions, consider. its face. and hence no cl od op a title : undations, or compensations for each other, as to war. thresr to sell in such . Caso does not amount to
rant a belief that the Legislature intended them ler duress.
88 whole, and that, if all could not be carried That blewal claque, being blended 'th the section, into effect, the Legislature would not pass the res
QU becomes illega!--por herde. Independout of the idue independently, and some parts are uncon
rest, and Sec 1on : 078, Politica: Code, was void per stitutional, all the provisions which are thus de. A sale or taxes, of whic, part are illeg!, makes the pendent, conditional, or connected, must fall whole sale sod deed void. Payment of such taxes
with them." This case was quoted with approval in is deewr o voluptury, und Ot under leral dur 88 French 08. Teschmaker, 24 Cal., 548; and doubtless henco cannot be recovered. No need for a new states the law correctly. Tested by this rule, the trisi.
whole of section 3696 was void per se. STATEMENT OF FACTO.
The statute authorized the State Board of This action, (with 94 others of a simllar nature), was brought to recover $351,
taxes pald by plaintiff coupled with the condition that it should make an
Equalization to determine the rate of taxation, 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 zation. Plaintif alleges repeated threats of delinquency Iconstitutional grounds, the power to determine
condition, and the condition having falled on and sale, with added costs, on the part of defend the rate, fell with it. In other words, the two ent, in his omcial character, and hence, paid under protest, and now demands judgment for re. nected,” in the language of Chief Justice Shaw,
clauses were "dependent, conditional or con. turn of the money, with interest. Upon a general denial by defendant, the cause
and must stand or fall together. This becomes
the more apparent from the fact that if the clause was tried September 10, 1875, and a Judgment requiring an allowance for the delinquency be given for plaintiff for $360 36. Defendant moved for a new trial, which was
stricken out, the state Board of Equalization has denied, and an appeal taken November 2, 1876, such as would produce the requisite amount of rev:
no authority to fix any rate of taxation, except from the order of denial. Cowles & Drown, Attorneys for plaintif and Re. be paid ; and as there will always be, under our
enue, on the hypothesis that all the taxes would spondent. W.C. Burnett, Attorney for defendant revenue system, (as is demonstrated by long, exand appellant.
perlence), a considerable delinquncy in the collec(NOTE_The three other cases decided with this, tion of taxes, the necessary result would be, that are stmilar in character, but involving diderent 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. If the plaintiff's land had been sold by the de But we need not elaborate this point further, as tendant as Tax-Collector for the alleged taxes, and it is obvious, we think, that no portion of the sectax deed had been made to the purchaser, would tion can stand, if the clause relating to the allow.
ance for the deficiency, be stricken out; and the CONTRACT FOR BIDEWALKS ABUN FRANCIRCO-kron
STATEMENT OF CABE.
In this action, commenced January 4, 1877, ters, that the land was sold for
taxes, ** giving the plaintiff claims that on May 1, 1860, Third streei
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 superviso for a state tax purporting to have
been levied for ors, on August 22, 1863, adopted a resolution that the fiscal year of 1872-3, whereas, as has been asphaltum sidewalks be constructed on the part shown, there was no valia law authorizing a state of Third street named, and thence proceeded letax to be levied or collected for that year. The gally and properly with notices, publications, bids, deed would therefore have been vold on its face etc., and awarded the contract to plaintin at the 80 far as it related to the State tax.
price of $3,728,50, and he completed the work on Nor would it have been otherwise, 11 it had ap- Commissioners, and accepted by the Board, with
November 23, 1873, which was approved by the 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.
streets. chaser, for a valid municipal tax. It is a familiar rule, that if land be sold for taxes a part of which and signed by the Mayor on January 6,
It was thereatter finally passed and published, are valld and a part Illegal, the whole sale and the
On January 2, 1877, plaintif presented a demand tax deed will be void.
For these reasons we are of opinion that when lor payment of the $3,728,50 to the Board, which the plaintiff paid the money to the defendant, he they rejected and refused to pay, and 'ne de was under no legal duress, and the payment must manded judgment for the amount and costs. be deemed to have been voluntary. In such cases, February 8th, with ten days time to answer. No
Defendant demurred, which was overruled on 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 should have been for the defendant.
time judgment was entered, and recorded March
1, 1877. Nor do we see any reason for remanding the cause for a new trial. It is evident the plaintiff ment, making the point that the sewerage was not
Defendant appealed from the order and judg. could not improve his case on another trial. Judgment and order reversed and cause re
accepted by the Board. manded with directions to the court below to dis-spondent. W. C. Burnett, attorney for defendant
D. H Wautemore, attorney for plaintin and remiss the action.
and appellant. BY THE COURT.
Judgment and orders now reversed and cause (Flled September 3, 1878.)
remanded for new trial. MAHE
(Decided September 9, 1878.) On the authority of Wu. V8. Austin, decided at J. HENRY WOOD, PIA. and Resp.) versed and cause remanded with directions to the JNO. P. JACKSON, AND CHAR. W.
No. 6949. court below to dismiss the action.
HOWARD, Defts. and Appels.)
Appeal from the seventh District Court, Napa (Filed September 3, 1878.)
Wm. C. WALLACE, Judge. V8. NO. 5548.
PROMIBSORI NOTE-LEGAL TENDER-MORTGAGE FORE AUSTIN. On the authority of Wills v8. Austin, decided at
STATEMENT OF THE CASE. the present term, the judgment and order are re- The defendant gave to plaintin, 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 monthly,
and if not so paid, to draw the same interest : and BY THE COURT.
11 unpaid for io days, plaintiff can, at his option, (Filed September 3, 1878.)
declare all the principal and interest doe and pay. TERCHMAKER
able, and can enforce payment, with ave per cent. No. 5550.
counsel fees and commissions. All secured by a AUSTIN.
mortgage on the 160 acres embracing the Napa On the authority of Wills v8. Austin, decided at Soda Springs property, with tong 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 mortgage on the same premises to one c. W. How
Also, on January 10, 1877, defendant executed a court below to dismiss the action.
his promissory note for $27,000.
Plaintif claims as due at the commencement of Unwritten Veciston.
this action, a balance of principal $15,000, and in.
terest for the two months from June 7 to August (Decided September 3, 1878.)
7, 1873, on the $25.000 ; $250, with interest on it ; G. RAISCH, Plaintiff and Respondent,
and interest on the $10,000 for one month from May
7 to June 7, 1877 : $150 with interest on it, and de.
NO. 6598 CITY AND COUNTY OF SAN FRANCIBCO,
mands, judgment, and a foreclosure and sale of Defendants and Appellants.
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 1, 1871, cisco.
leaving only due $15,000 principal, and interest DAINGERFIELD, Judge.
76, from May 7 to 22, 1877, when he made a tender
to plaintin of the said amount to extinguish the note, but plaintis 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 $15,076 was due on The organization of “The American Bar May 22, 1877, which defendant tendered to plain. Association” is one of the most noteworthy tio by check on Falkner, Bell, & Co., also odering to get gold instead if required, but plaintin re events in the history of jurisprudence in this fused, only because the amount was not enough. Judgment given plaintin for $15,000, with interest country. To assimilate and unify the laws from May 1, 1877, to entry of Judgment, at one per of the several States, especially so far as cent. per month, computed monthly ; and a de cree of foreclosure of the mortgage, with $400 they relate to commerce and to crime, is a Counsel fees, and conta for plaintsd to the time of nilng of defendant's answer, but not since. Judg. consummation devoutly to be wished by appealed from the judgment on December 3, 1871, every lover of his country, for not only will urging that his tender should have cut of all in it facilitate intercourse and harmony among terest and the $400 for counsel fees, and that the the people, but it will also be one of the judgment be so modified. Judgment now amrmed.
Botto e Sullivan, apo C. A. Tuttle, attorneys for strongest bonds of Union among the several plaints and respondent. Thos. P. Stoney, attor. States. The meeting at Saratoga called to ney 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
term. 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 ve. Mo Aller et al-on mothion of Barch for Appell. few State bar associations which now exist,
such a formation is at present impracticable, ant 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 obvious desire to secure the best organizafiled.
tion--the best results possible. This, we ADMITTED TO PRACTICE. -On August 28th believe, has been done, and under the admin- George W. Langan, -on motion of Cutler istration of the men who have it in charge, McAllister, and license from Supreme Courtof 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 Susion and to the country. preme Court of Wisconsin.
Its PROCEEDINGS. Sept. 3d. - Thornton Carusion 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 coun- out the Union, uphold the honor of the protry to meet at Saratoga on the 21st of Au tercourse amung the members of the American
fession of the law, and encourage cordial ingust, 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, 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 nomi. Randolph Tucker, of Virginia : Stanley Mat- nated as hereinafter provided. thews, of Ohio ; Lyman Trumbull, of Il.i.
Officers 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
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 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 ofti ze ; an Executive ComHon. 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,
one of whom shall be Chairínan 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, each : "On Jurisprudence and Law Reform;
ensuing, and shall consist of five members 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
International Law; on Publication ; on report a Constitution and By-laws. This
Grievances. Committee consisted of Carleton Hunt, of A majority of those members of any com. New 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 ; tute a Local Council for such State, to which
State, to be annually elected, shall consti. Hon. Henry Smith, of Albany, and Hon. 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
the State, to the bar of which the persong Name and Object.
nominated belong. In default of such &
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 ballet; 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 Dames, and against those only. Five nega. equivalent to State, Territory, and the Dis. tive votes shall suffice to defeat an election. trict of Columbia. By-Laws.
The Council on Thursday morning reportART. V.-By-laws may be adopted at any several offices of the Association, and they
ed the following names as nominees for the annual meeting of the Association, by a majority of the members present. It shall be
were unanimously elected:
President-James O. Broadhead, St. Louis, the duty of the Executive Committee, with.
Missouri. out delay, to adopt suitable By-laws, which
Vice-Presidents-Arkansas, Geo.. A. Gallashall be in force until rescinded by the As. sociation.
gher; Connecticut, Origen S. Seymour ; Duer.
Delaware, Anthony Higgins ; District of
Columbia, H. H. Wells ; Florida, Czas. 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 enforced 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, C. 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, Edseveral States and by Congress during the ward J. Phelps ;, Virginia, J., Randolph preceding 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, BaltiState 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 Winslow, Brooklyn; William Allen Butler,
comprised of the following gentlemen : John 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 meeting shall constitute a quorum.
The following gentlemen were elected to
constitute, with the Secretary and Treasurer, Members.
the Executive Committee : Simeon E. BaldART. IX.-All members of the Conference win of New Haven : William A. Yisher of
and Hon. Luke P. Poland of adopting the Constitution, aud all persons
Vermont. elected by them, upon the recommendation of the Committee of five appointed by such
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—