Jo v -ke UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ROBERT ERNEST COWAN AN EXTRAORDINARY I'SI- OF AN EXTRAORDINARY REMEDY. BY JOHN H. BURKE. 186- DEDICATION The following Brief is published by John H. Burke, for the benefit of the Bench, the Bar and the mercantile com- munity, in order that the first named may fully appreciate the uses to which the high prerogative Writ of Prohibition, may be put, leading to great abuse of the discretionary powers of the Court, while it is hoped the class last named will, after a perusal thereof, be, in future, less likely to submit themselves to the dictation, control or advice of any one person who may not always be acting entirely from disin- terested motives. Should any of the parties named feel aggrieved at remarks made therein, let them remember the story of "Poor Dog Tray," and profit thereby. The Brief is a review of questions which will come up before Judge Evans on April 22d, on application for sixty writs against Tillson, Tax-Collector, and is as follows : K t IN THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FKANCISCO, W. S. Hobart vs. Tillson, No. 3,839. R. F. Morrow vs. Tillson, No. 3,840. Win. Alvord vs. Tillson, No.. 3,841. E. E. Eyre vs. Tillson, No. 3,842. California Insurance Co. vs. Tillson, No. 3,843. D. O. Mills vs. Tillson, No. 3,844. W. S. Lyle vs. Tillson, No. 3,845. I. Glazier et al. vs. Tillson, No. 3,846. J. B. Haggin vs. Tillson, No. 3,847. Robert Sherwood vs. Tillson, No. 3,848. Seth Cook vs. Tillson, No. 3,849. Peter Donahue vs. Tillson, No. 3,850. San Francisco and North Pacific E. K. Co. vs. Tillson, No. 3,851. J. B. Haggin et al. vs. Tillson, No. 3,852. Louis Sloss vs. Tillson, No. 3,853. Lloyd Tevis vs. Tillson, No. 3,854. R. H. McDonald vs. Tillson, No. 3,855. E. J. Baldwin vs. Tillson, No. 3,856. 293335 Bank of California vs. Tillsou, No. 3,857. L. L. Kobinson vs. Tillson, No. 3,858. H. M. Newhall vs. Tillson, No. 3,859. Anglo-California Bank vs. Tillsou, 3,860. J. L. Flood vs. Tillson, No. 3,8(51. H. Miller vs. Tillson, No. 3,862. Geo. W. Beaver vs. Tillson, No. 3,863. Hutchinson, Kohl & Co. vs. Tillson, No. 3J864. Geo. B. Wells vs. Tillson, No. 3,865. J. C. Flood et al., Ex. vs. Tillson, 3,866. A. J. Bryant vs. Tillson, No. 3,867. Wm. M. Lent vs. Tillson, No. 3,868. Daniel Meyer vs. Tillson, No. 3,869. Nevada Bank vs. Tillson, No-. 3,870. A. E. Davis vs. Tillson, No. 3,871. Louis McLane vs. Tillson, No. 3,872. I. C. May vs. Tillson, No. 3,873. Wm. Sharon vs. Tillson, No. 3,874. Thos. Bell vs. Tillson, No. 3,875. C. C. Coleman vs. Tillson, No. 3,876. Daniel Cook vs. Tillson, No. 3,877. Chas. Mayne vs. Tillson, No. 3,878. J. C. Flood vs. Tillson, No. 3,879. Glaus Spreckles vs. Tillson, No. 3,880. J. V. Coleman, Ex., vs. Tillson, No. 3,881. B. N. Graves vs. Tillson, No. 3,882. John Bosenfeld vs. Tillson, No. 3,883. F. F. Low vs. Tillson, No. 3,884. Oliver Eldridge vs. Tillson, 3,885. W. F. Babcock vs. Tillson, 3,886. Louis Sloss & Co. vs. Tillson, No. 3,887. Maria Coleman vs. Tillson, No. 3,888. J. H. Bedington vs. Tillson, No. 3,889. Virginia and Gold Hill Water Co. vs. Tillson, No. 3,890. Nicholas Luning vs. Tillson, No. 3,891. South Pacific Coast R. R. Co. vs. Tillson, No. 3,892. Jas. Phelan vs. Tillson, No. 3,893. Con. O'Connor vs. Tillson, No. 3902. Pacific Mill and Mining Co. vs. Tillson, No. 3,951. J. C. Flood & Co. vs. Tillson, No. 3,952. The above may well be considered together, as they are all based on petitions filed by the parties severally named, asking that Writs of Prohibition may issue, directed to Charles Tillson, as Tax Collector of the City and County of San Francisco, prohibiting him as such Tax Collector from enforcing or collecting certain State and County taxes due by the respective petitioners, on certain property included in what is known as the subsequent or supplemental personal property assessmeut roll of the City and County of San Francisco for the fiscal year 1880 and 1881. It seems that the above petitioners resided or were doing business in the City and County of San Francisco, at 12 o'clock, noon, on the first Monday of March, 1880, and that they were each possessed of personal property then subject to assessment in said city and county. An examination of the regular assessment roll of personal property of said city and county for the said fiscal year 1880 and 1881, as completed by the Assessor on or about the first Monday in June, 1880, shows that the said petitioners or most of them, after a demand made, by the Assessor, neglected and refused to make or file with the Assessor a statement, either oral or in writing, as by law required, by reason of which failure the petitioners, or such of them as were assessed in such roll, were so assessed arbitrarily by the Assessor, though on an inadequate amount of property, while a portion of the petitioners, namely, Louis Sloss & 6 Co., Louis Sloss, Hutchinson, Kohl & Co., J. C. Flood & Co., Haggin & Tevis (as a firm), C. C. Coleman, I. C. May, J. L. Flood, Virginia and Gold Hill Water Co., Pacific Mill and Mining Co., Seth Cook and E. H. McDonald, were not assessed at all, though possessed of large amounts of pro- perty. These facts being ascertained, complaints were filed with the State Board of Equalization at Sacramento, asking that the assessments of said parties be increased to the amounts stated in the complaints, where the party complained of had been already assessed, though in an inadequate amount, and where no assessment had been made a request was made that the person so escaping be assessed on an amount stated to the Board. The parties were cited to appear before the said State Board of Equalization at a session thereof in September last, and ample opportunity was afforded to each to appear in person or by representative, and satisfy the Board that the increase in the assessment prayed for was unjust, or to deny the allegations contained in the complaints filed with said State Board. This they failed and refused to do, and the charges con- tained in the complaints then on file with said State Board stand to this day not only unrefuted by the petitioners above named, but admitted pro confesso by their own acts and admissions. Instead of appearing before the State Board and present- ing their defense to the charges, if they had any to offer, resort was had to the Supreme Court to contest the power of the Board. Subsequently the information presented to the State Board of Equalization \\ as placed before the Assessor of the City and County of San Francisco, and that officer as com- manded by law Statutes 1873-4, Page 478 included the names of the persons and the property described in the petitions filed by the above petitioners in the supplemental a ssessment roll of said City and County for the year 1880- 81, which roll was completed and returned by him on October 25th, 1880. Having thus reviewed the causes leading to what may be justly termed these peculiar petitions peculiar, not only because of the number of persons seeking the benefit of t his high prerogative writ, but also as to the reasons set forth in the several petitions, asking for the issuance of these writs it is proper to present briefly some of the objections to be raised to the granting of the relief prayed for. The Court has no jurisdiction of the person or the subject matter. I. Because, a Writ of Prohibition is not the proper remedy, as it runs only from one judicial tribunal to an inferior judicial tribunal, and will not run from a judicial tribunal to a ministerial officer, as a Tax Collector, prohibiting him from performing certain ministerial duties devolving upon him by statute. People vs. Board of Election Commissioners, 54 Cal. 404. Spring Valley Water Works vs. San Francisco. 52 Cal. in. Maurer vs. Mitchell, 53 Cal. 289. In calling attention to the decisions ot our Supreme Court in the cases above, it would be well to consider the facts of each case. 8 In 52 Cal. Ill, the Spring Valley Water Co. asked for a writ prohibiting the city authorities of San Francisco from interfering with the rights of the Company to cut off water from its mains, where the same was taken for ordinary municipal purposes (except for extinguishment of fires), unless the city make arrangements to pay the company for use of water. In this case the Court held, a writ would not issue for the reasons stated above, and the petition was dismissed, Judges McKinstry, Crockett and .Rhodes assent- ing therein. In 53 Cal. 289, Leo Maurer and sixty-five others applied for a writ against Wm. Mitchell, Tax Collector of San Francisco, to prohibit the collection of certain taxes assessed for opening Dupont street, the case being in all respects similar to the ones now before Judge Evans. The Court, without any dissenting opinion, dismissed, the writ for the reasons stated herein. In 54 Cal. 404, One Taylor applied for a writ prohibiting the Board of Election Commissioners of San Francisco from ordering an election of fifteen free-holders, and the Court, for the reasons above stated, denied the writ, the opinion being delivered by Morrison, C. J. and concurred in by Judges Thornton, Ross, Myrick, Sharpstein, McKee and McKinstry. II. The several petitioners for these writs, if entitled to any standing in Court, must show that the relief asked for is specific, and comes properly under the class of cases named in Section 3367 of the Civil Code, or that its preventive coming under the cases named in Section 3368 of the Civil Code. If these petitioners have any course of action, it must arise under the last named section, and the relief sought must be to prevent the Tax Collector from doing that which ought not to be done. (Civil Code, Section 3,366, 3,368.) Concedingjthis to be the case, then the petitioners, in seek- ing to procure writs of prohibition against the Tax Collector, have failed to apply for the proper remedy by means of which to secure the preventive relief sought, since such preventive relief, if given at all, can only be so given by injunction, provisional or final. (See Sec. 3,420, Civil Code.) III. If a Writ of Prohibition were the proper remedy, the peti- tioners above named are, by the admissions contained in their several petitions, precluded from obtaining from the Court the relief sought. IV. The several petitioners show affirmatively that each of the persons applying for these writs were the owners of all of the property for which they were assessed in said supple- mental roll for the fiscal year 1880-1881, and of the value stated therein ; that Alexander Bad! am, the Assessor, well knew and was fully advised of the nature, condition and value of the property of each petitioner. But there is no showing that the petitioners or any of them had been pre- viously assessed the fiscal year 1880-1881, as the owners of the property named in said supplemental roll, or any part thereof, either on the regular assessment roll, or, in fact, that said property had been assessed at all. Therefore, be- 10 ing the owners of the property named in the roll, it was the duty of the Assessor to assess them thereon. Constitution, Art. XIII, Section 1. Political Code Sec. 3,607, 3,617, 3,627, 3,629, 3,648, 3,649. See Sec. 9 of an Act entitled " An Act in relation to the assessment and collection of taxes upon personal property in the City and County of San Francisco, approved March 18, 1874," statutes 1873-74, page 478. There is an allegation that the assessment was made in fraud, though what is to be understood therefrom is by no means definite, and the allegation is susceptible of many different constructions. What do these petitioners mean by the term fraud, as used by them ? Do they intend to say that after escaping for a series of years from bearing their just proportion of the burdens of government, it is a fraud upon them and their rights to compel a portion of their property to pay a tardy tax? Do they intend to say, because they may for years have refused to obey the law, that it is a fraud now to compel them to obey the law and respect its majesty? Do they intend to say that the poorer and middle classes must bear all of the burdens of government, and that, be- cause they (the petitioners) have wealth, it is fraud on them and their hereditary rights to compel them once in years to contribute a few dollars towards supporting the State govern- ment that protects them ? Do they, or such of them as refused to make statements to the Assessor, intend to say that, because the Assessor did not have them sent to the county jail, as he could have done, for so refusing, a fraud has been committed, whereby th ey have been deprived of their just and equitable rights ? 11 Do they intend to say that there was some private under- standing existing, but not disclosed to the Court, whereby it was agreed by, with, or through the party instigating the filing of these petitions, or anyone else, that for certain con- siderations they should not be assessed, or if assessed, such assessment should be light, and therefore to assess them thereafter is a fraud ? Do they intend to convey the impression to the mind of -the Court, or public generally, that, acting under the advice and instigation of some person to the Court unknown, they con- tributed to a fund to defray the legal expenses incurred in evading paying their proportion of taxation, and because the desired object was not thus attained, they are now liable to the same tax to defray legal expenses, and therefore it is fraud? If so, would it not be better to settle with the person leading them into the scrape? Would it not be more honorable and in the long run less expensive to pay their just share of taxes without compulsion, than to con- tinually be led aside from the plain path of duty, thus incurr- ing debts and responsibilities which may not soon have an end ? Do they or any of them realize the nature of the oath chey took in applying for these writs ? These questions are propounded not for the purpose of answering them, for they must be answered by each of the petitioners themselves, nor are they propounded for the purpose of reflecting on any one unnecessarily, but rather to cause serious consideration of a serious subject, a subject which, without doubt, few of the petitioners have given any consideration whatever, else many of them would not have made and filed the affidavits and petitions asking for these writs. 293335 12 To the unbiased or judicial mind, it must be plain from a perusal of the petitions on file, and an examination of the assessments rolls, that if any fraud has been committed, the petitioners themselves must have been parties thereto, whether intentionally or otherwise, and may not now take advantage of their own wrong. There are other reasons which might be advanced with propriety to show why the writs should not be issued, were it necessary so to do; but as the remedy sought is not the proper one on the showing made by the petitioners, it is not necessary to discuss questions which might come up on a proceeding of proper character, if brought in a proper shape. It is only necessary to call attention to the pecu- liarity of the present proceedings and the facts, and com- pare them with a case in Colorado of a somewhat similar nature, in which State the statute resembles our own. The following is a synopsis of the decision referred to : Under the law, it was the duty of the complainant to make return to the Assessor. * * * Failing to furnish the information, it is the duty of the Assessor to act upon what means of knowledge he possesses. In any case, if injustice is done, either in assessing him for a larger number of cattle than are properly taxable, or in assessing him at all, he may present the facts to the Commissioners. * * * It does not appear that the complainant ever listed his property, * * nor does it appear that, having been listed * * for too many cattle, that he ever appeared * * * to have it corrected. The proposition that a Court of Equity will take jurisdic- tion amounts to this : that the owner of personal property may neglect his statutory duty of listing his property; may neglect to appear before tribunals established by law to cor- rect errors, etc., and by a bill (similar to these) devolve the duties of himself, the Assessor and Board of County Com- missioners (Equalization) upon a Court of Equity, and through it * * review and correct the assessment rolls. The proposition is not to be entertained. Price vs. Kramer, 4 Colorado, 554. For these reasons alone the petitions should be dismissed and the writs denied, since, from a perusal of the papers on file, one is led to the conclusion that to grant the relief asked for would be a parody upon justice, and must result in turning our courts into a bulwark, behind which every +' *> criminal or wrong-doer could successfully shield himself from the consequence sattending the commission of crime or violation of law. To use the courts for the purpose and in the manner sought by the petitioners, is to say, iu effect, that wealth can openly refuse to obey the law; and when called to account therefor, the Court will protect the culprits in their wrong- doing. Respectfully. JOHN H. BURKE. UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES UNIVERSITY OF CALIFORNIA AT LOS ANGELES LIBRARY