SUPERSEDEAS. 1. NEW TRIAL-WRIT OF ERROR-SUPERSEDEAS.-The pendency of a motion for a new trial operates as a postponement of the time for filing a writ of error and bond for the removal of a cause to the supreme court of the United States, until the disposition of such motion. The filing of such writ and bond within sixty days after the disposition of the motion for a new trial will operate as a supersedeas, although they were not filed within sixty days after the rendition of the judgment complained Nevada Bank v. Steinmetz, Treasurer, etc. Cal 826. of. SUPERVISORS, BOARD OF. See CERTIORARI, 2; SAN FRANCISCO, 1. SUPPLEMENTAL PROCEEDINGS. 1. PROCEEDINGS SUPPLEMENTARY TO EXECUTION, UNDER CHAPTER XXXV OF THE CODE. -Prior to the adoption of the code, a judgment creditor had a vested right, within five years after the rendition of his judgment, to have execution issue thereon, and to institute supplementary proceeding at any time. A subsequent statute might limit such right to expire at the end of a reasonable time, but it could not summarily take it away. Murne v. Schwabacher Bros. & Co. Wash. 799. 2. THE SAME-TRIAL BY JURY-AMENDMENT.-The affidavit filed for the institution of such proceedings, may be amended so as to make the description of the judgment conform to the facts. Such proceedings are equitable in their nature, and the defendant therein has no constitutional right to a trial by jury. If upon a trial of the issues raised thereon, it appears that a person, not a party thereto, claims an interest in the property affected thereby, the court should cause him to be brought in. Id. 3. NEW PARTY IN SUPPLEMENTARY PROCEEDINGS.-Whether in a proceeding supplemental to execution pending in the district court, the court can direct a new party to be brought in, quære? Murne v. Schwabacher Bros. & Co. Wash. 563. 4. PARTIES IN SUPPLEMENTARY PROCEEDINGS.-In proceedings supplementary to execution to reach certain property in the judgment debtor's possession, the debtor denied that the property was his own, and alleged that it belonged to certain named persons of whom he was an agent. These alleged principals had full knowledge of the proceeding, and on the trial of the issue raised by the judgment debtor they were examined as witnesses concerning the title and ownership of the property in question. Held, that an adjudication in such proceeding against the judgment debtor alone, determining that the property was his, and should be paid over to the judgment creditor, was proper; that he was the only necessary party defendant to the proceedings; that the alleged principals were not necessary parties, and need not be brought in as new parties. Id. 5. PROCEEDINGS SUPPLEMENTAL TO EXECUTION AGAINST A GARNISHEE are proceedings at law, and on an appeal from a judgment therein only those errors are reviewable that are assigned in the notice of appeal. Williams v. Gallick. Or. 537. SURETIES. 1. JUDGMENT AGAINST SURETIES ON APPEAL.-Where the amount of a judgment rendered against an appellant is reduced by the appellate court, on a ground that was not raised in the lower court, and the judgment is affirmed as so reduced, the sureties on the appeal bond given under section 4 of Prince's statutes, page 242, are liable thereon. Orr et al. v. Hopkins. N. M. 272. See ATTACHMENT, 10. SURVEYS. See EVIDENCE, 3. SWAMP LAND. RECLAMATION OF. See CERTIORARI, 2. TAXATION. 1. IN ORDER THAT A COUNTY ASSESSOR MAY HAVE JURISDICTION to assess property for 2. AN ASSESSMENT THAT VALUES REAL AND PERSONAL PROPERTY IN A MASS IS VOID. 3. AN ASSESSMENT SHOULD SHOW A PROPER DESCRIPTION OF THE PROPERTY, and the 4. AN ASSESSMENT THAT IS IN SUCH A CONDITION THAT IT Cannot be EQUALIZED by the 5. IN ASSESSING RAILROADS FOR TAXATION, the assessor must follow the provisions of Id. 6. A TAX WILL NOT BE RESTRAINED UPON THE GROUND THAT IT IS IRREGULAR OR ER- 7. TO ENTITLE A PARTY TO RELIEF IN EQUITY AGAINST AN ILLEGAL TAX, he must bring 8. COURTS OF EQUITY WILL ENJOIN THE CASTING OF A CLOUD UPON A TITLE, in cases 9. IF THE RECORD SHOWING THE VALUATION AND LEVY OF TAX IS COMPLETE on its face, 10. IF A TAX DEED IS MADE PRIMA FACIE EVIDENCE OF THE PURCHASER'S TITLE, and 11. IF THE ILLEGALITY OF THE TAX APPEARS UPON THE FACE of the proceedings, no 12. EQUITY WILL ENJOIN THE COLLECTION OF A TAX LEVIED upon property that is ex- 13. THE ACT OF CONGRESS INCORPORATING THE NORTHERN PACIFIC RAILROAD IS A 14. THE FOURTEENTH AMENDMENT TO THE CONSTITITION OF THE UNITED STATES IS 16. CONGRESS MAY EXEMPT THE PROPERTY OF THE UNITED STATES FROM TAXATION. 17. CONGRESS HAD POWER TO CHARTER THE NORTHERN PACIFIC RAILROAD COM- 18. MULTIPLICITY OF SUITS.-Equity has jurisdiction to enjoin the collection of a tax 19. IMPAIRING THE OBLIGATION OF A CONTRACT.-At the date of the execution of a note 20. STATE POWER OF TAXATION.-The state has power, so long as it does not trench upon the constitution of the United States, to tax all persons, property, and business within its jurisdiction or reach; and whether any person, property, or business is so within its jurisdiction is not a federal question, and must be determined by the state for itself. Id. 21. UNIFORM AND EQUAL TAXATION.-An act of the legislature providing for the taxation of mortgages as land, which in effect exempts all such mortgages from such taxation upon land in more than one county, violates section 1 of article 9 of the constitution of the state, which requires that taxation shall be uniform and imposed according to its value upon "all property" not specially exempt therefrom, and is therefore void and of no effect; and semble, that such act is also a "special" one for "the assessment and collection of taxes," and therefore in violation of subdivision 10 of section 23 of article 4 of the constitution of the state. Id. 22. DUE PROCESS OF LAW.-The enforcement by the state of a tax levied under a void law is a deprivation of property without due process of law, contrary to section 1 of the fourteenth amendment to the constitution of the United States. Id. 23. ASSESSMENT OF PROPERTY IN THE POSSESSION OF A WAREHOUSEMAN.-Where a warehouseman has in his possession property liable to taxation, and on demand refuses to furnish the assessor with the names of the owners, or a description of such property, as required by section 3629 of the Political Code, it is the duty of the assessor to note such refusal on the assessment book, and to make an estimate of the value of the property. Bode et al. v. Holtz, Assessor, etc. Cal. 366. 24. REVENUE ACTS-DISTRIBUTION OF POLL-TAX.-The revenue act of 1872, in so far as the same provides for the distribution of the poll-tax, was not repealed by the revenue act of 1882. Poll-taxes should be paid into the county school fund, and not into the territorial treasury. Territory, etc. v. Luna, Sheriff, etc. N. M. 418. 25. MUNICIPAL CORPORATION, LIABILITY OF FOR GALLON TAX ON DISTILLED SPIRITS. A municipal corporation is liable to the United States for the amount of the gallon tax upon spirits distilled with its funds, by its officers and legally constituted agents, acting for and in its name, when such spirits are sold and disposed of without paying the duties thereon, and the proceeds thereof are paid to, received and appropriated by the city, although all of such acts were unauthorized by the city's charter, and a part of them were in violation of acts of congress. Salt Lake City v. Hollister. Utah, 441. 26. MONEY PAID UNDER PROTEST BY SUCH CITY IN SATISFACTION OF SUCH DUTIES can *not be recovered back. Id. 27. NOTES ISSUED FOR CIRCULATION-WHAT ARE.-Orders drawn by a mercantile corporation to pay to certain persons or bearer a certain number of dollars, in merchandise, at retail, issued to those who were willing to take their pay in merchandise, and as a means of convenience in exchange for produce, do not perform the office of money, and are not notes in the sense in which that word is used in the United States statutes providing "that every person, firm, association, other than national bark associations, and every corporation, state, bank, or state banking association, shall pay a tax of ten per centum on the amount of their own notes issued for circulation and paid out by them." Supplement to R. S., vol. 1, 1874-1881, p. 133, sec. 19. Zion Co-operative Mercantile Institute v. Hollister. Utah, 202. 28. DELINQUENT TAXES-ACTION AND LIEN FOR WHEN BARRED.-The statute of limitations of California is applicable to an action brought by the city and county of San Francisco, under the acts of 1878, to recover delinquent city and county and state taxes. Such action is barred, under section 338, subdivision 1, of the code of civil procedure, upon the expiration of three years after the cause of action accrues. When an action to collect such tax is barred, an action to enforce the lien thereof, created by sections 3716 and 3717 of the political code, is also barred. San Francisco v. Jones, (U. S. Cir. Court). Cal. 772. See BONDS, 3, 4; EASEMENTS, 3; INDIANS, 3; JUSTICE COURT, 3. TENANCY FROM YEAR TO YEAR. See LANDLORD AND TENANT, 2. TENANTS IN COMMON. 1. TENANTS IN COMMON WHO ARE JOINED AS PLAINTIFFS IN AN ACTION OF EJECTMENT are presumed to have consented to such joinder. Weise v. Barker. Col. 108. TAXATION. 1. IN ORDER THAT A COUNTY ASSESSOR MAY HAVE JURISDICTION to assess property for taxation, he must follow the statute. An assessment made in a manner not authorized by statute, and not in substantial compliance with its provisions, is void and equivalent to no assessment at all. N. P. R. R. Co. v. Carland. Mont. 326. 2. AN ASSESSMENT THAT VALUES REAL AND PERSONAL PROPERTY IN A MASS IS VOID. Id. 3. AN ASSESSMENT SHOULD SHOW A PROPER DESCRIPTION OF THE PROPERTY, and the real estate and personal property should be separately and distinctly assessed and valued. Id. 4. AN ASSESSMENT THAT IS IN SUCH A CONDITIOn that it Cannot Be Equalized by the board of commissioners, sitting as a board of equalization, is void. Id. 5. IN ASSESSING RAILROADS FOR TAXATION, the assessor must follow the provisions of the statute. Id. 6. A TAX WILL NOT BE RESTRAINED UPON THE GROUND THAT IT IS IRREGULAR OR ERRONEOUS. Id. 7. TO ENTITLE A PARTY TO RELIEF IN EQUITY AGAINST AN ILLEGAL TAX, he must bring his case under some acknowledged head of equity jurisdiction. Id. 8. COURTS OF EQUITY WILL ENJOIN THE CASTING OF A CLOUD UPON A TITLE, in cases wherein the cloud itself, when cast, would be removed. Id. 9. IF THE RECORD SHOWING THE VALUATION AND LEVY OF TAX IS COMPLETE on its face, such record creates a lien upon the real estate against which the tax is assessed, and is a cloud upon the title of the owner. Id. 10. IF A TAX DEED IS MADE PRIMA FACIE EVIDENCE OF THE PURCHASER'S TITLE, and may be introduced in evidence, without showing the regularity of the proceedings up to the delivery of the deed, such deed is a cloud upon the title of the owner, and equity would interfere, when by the averments of the bill it appears that the property is exempt from taxation, or that the assessment was void. Id. 11. IF THE ILLEGALITY OF THE TAX APPEARS UPON THE FACE of the proceedings, no cloud is cast upon the title. Id. 12. EQUITY WILL ENJOIN THE COLLECTION OF A TAX LEVIED upon property that is exempt from taxation, to prevent a multiplicity of suits, and to afford a complete remedy. Id. 13. THE ACT OF CONGRESS INCORPORATING THE NORTHERN PACIFIC RAILROAD IS A CONTRACT between the government and the incorporators and their successors, and it is not within the constitutional power of congress or of a territorial legislature to impair the obligations of this contrac by the imposition of a tax upon such railroad's right of way. N. P. R. R. Co. v. Carland. Mont. 326. 14. THE FOURTEENTH AMENDMENT TO THE CONSTITITION OF THE UNITED STATES IS A LIMITATION upon the sovereignty of the States, and was adopted by the people of the United States to secure to the inhabitants of each state equal laws and equal protection of the laws without regard to race, color, or previous condition. Id. 15. THIS LIMITATION APPLIES TO THE SUBJECT OF TAXATION, and forbids the states or territories from exempting property from taxation, except in those cases wherein the property is devoted to public uses in which all the people are equally benefitted. Id. 16. CONGRESS MAY EXEMPT THE PROPERTY OF THE UNITED STATES FROM TAXATION. The government may dispose of its own property upon such terms and conditions as it deems proper, and congress is the sole judge as to how this property shall be disposed of. Id. 17. CONGRESS HAD POWER TO CHARTER THE NORTHERN PACIFIC RAILROAD COMPANY; to grant it to public lands, and exempt its right of way through such lands from taxation. Id. 18. MULTIPLICITY OF SUITS.-Equity has jurisdiction to enjoin the collection of a tax levied under an invalid law, when necessary to prevent a multiplicity of suits. Dundee Mortgage etc., Co. v. School District. (U. S. Cir. Ct.] Or. 241. 19. IMPAIRING THE OBLIGATION OF A CONTRACT.-At the date of the execution of a note and mortgage, the law of the state required the mortgaged premises to be assessed at their full cash value for taxation; and afterwards an act was passed requiring the note and mortgage to be assessed at its par value for taxation, and exempting so much of the land from taxation. Held, that the latter act did not impair the obligation of the contract between the creditor and the debtor. Dundee Mortgage, etc., Co. v. School District (U. S. Cir. Ct.) Or. 241. 20. STATE POWER OF TAXATION.-The state has power, so long as it does not trench upon the constitution of the United States, to tax all persons, property, and business within its jurisdiction or reach; and whether any person, property, or business is so within its jurisdiction is not a federal question, and must be determined by the state for itself. Id. 21. UNIFORM AND EQUAL TAXATION.--An act of the legislature providing for the taxation of mortgages as land, which in effect exempts all such mortgages from such taxation upon land in more than one county, violates section 1 of article 9 of the constitution of the state, which requires that taxation shall be uniform and imposed according to its value upon "all property" not specially exempt therefrom, and is therefore void and of no effect; and semble, that such act is also a "special" one for "the assessment and collection of taxes," and therefore in violation of subdivision 10 of section 23 of article 4 of the constitution of the state. Id. 22. DUE PROCESS OF LAW.-The enforcement by the state of a tax levied under a void law is a deprivation of property without due process of law, contrary to section 1 of the fourteenth amendment to the constitution of the United States. Id. 23. ASSESSMENT OF PROPERTY IN THE POSSESSION OF A WAREHOUSEMAN.-Where a warehouseman has in his possession property liable to taxation, and on demand refuses to furnish the assessor with the names of the owners, or a description of such property, as required by section 3629 of the Political Code, it is the duty of the assessor to note such refusal on the assessment book, and to make an estimate of the value of the property. Bode et al. v. Holtz, Assessor, etc. Cal. 366. 24. REVENUE ACTS-DISTRIBUTION OF POLL-TAX.-The revenue act of 1872, in so far as the same provides for the distribution of the poll-tax, was not repealed by the revenue act of 1882. Poll-taxes should be paid into the county school fund, and not into the territorial treasury. Territory, etc. v. Luna, Sheriff, etc. N. M. 418. 25. MUNICIPAL CORPORATION, LIABILITY OF FOR GALLON TAX ON DISTILLED SPIRITS.— A municipal corporation is liable to the United States for the amount of the gallon tax upon spirits distilled with its funds, by its officers and legally constituted agents, acting for and in its name, when such spirits are sold and disposed of without paying the duties thereon, and the proceeds thereof are paid to, received and appropriated by the city, although all of such acts were unauthorized by the city's charter, and a part of them were in violation of acts of congress. Salt Lake City v. Hollister. Utah, 441. 26. MONEY PAID UNDER PROTEST BY SUCH CITY IN SATISFACTION OF SUCH DUTIES can not be recovered back. Id. 27. NOTES ISSUED FOR CIRCULATION-WHAT ARE.-Orders drawn by a mercantile corporation to pay to certain persons or bearer a certain number of dollars, in merchandise, at retail, issued to those who were willing to take their pay in merchandise, and as a means of convenience in exchange for produce, do not perform the office of money, and are not notes in the sense in which that word is used in the United States statutes providing "that every person, firm, association, other than national bank associations, and every corporation, state, bank, or state banking association, shall pay a tax of ten per centum on the amount of their own notes issued for circulation and paid out by them." Supplement to R. S., vol. 1, 1874–1881, p. 133, sec. 19. Zion Co-operative Mercantile Institute v. Hollister. Utah, 202. 28. DELINQUENT TAXES-ACTION AND LIEN FOR WHEN BARRED.-The statute of limitations of California is applicable to an action brought by the city and county of San Francisco, under the acts of 1878, to recover delinquent city and county and state taxes. Such action is barred, under section 338, subdivision 1, of the code of civil procedure, upon the expiration of three years after the cause of action accrues. When an action to collect such tax is barred, an action to enforce the lien thereof, created by sections 3716 and 3717 of the political code, is also barred. San Francisco v. Jones, (U. S. Cir. Court). Cal. 772. See BONDS, 3, 4; EASEMENTS, 3; INDIANS, 3; JUSTICE COURT, 3. TENANCY FROM YEAR TO YEAR. See LANDLORD AND TENANT, 2. TENANTS IN COMMON. 1. TENANTS IN COMMON WHO ARE JOINED AS PLAINTIFFS IN AN ACTION OF EJECTMENT are presumed to have consented to such joinder. Weise v. Barker. Col. 108. |