207 Cal. 473, S. F. 13440, Whitmore v. Brown

Docket Nº:S. F. 13440
Citation:207 Cal. 473, 279 P. 447
Opinion Judge:PRESTON, Judge
Party Name:CHARLES F. WHITMORE, Jr., et al., Petitioners, v. FREDA M. BROWN, as Tax Collector, etc., Respondent
Attorney:C. N. Lavers for Petitioners. Lovett K. Fraser for Respondent. Earl Warren, District Attorney of Alameda County, Frank M. Ogden, Assistant District Attorney, Agnes R. Polsdorfer and James H. Oakley, Deputies District Attorney of Alameda County, Preston Higgins, City Attorney of the City of Oaklan...
Judge Panel:JUDGES: In Bank. Preston, J. Waste, C. J., Richards, J., Seawell, J., and Curtis, J., concurred.
Case Date:June 29, 1929
Court:Supreme Court of California

Page 473

207 Cal. 473

279 P. 447

CHARLES F. WHITMORE, Jr., et al., Petitioners,

v.

FREDA M. BROWN, as Tax Collector, etc., Respondent

S. F. No. 13440

Supreme Court of California

June 29, 1929

Page 474

APPLICATION for a Writ of Mandate to require a Tax Collector to issue a receipt in full for certain taxes.

COUNSEL:

C. N. Lavers for Petitioners.

Lovett K. Fraser for Respondent.

Earl Warren, District Attorney of Alameda County, Frank M. Ogden, Assistant District Attorney, Agnes R. Polsdorfer and James H. Oakley, Deputies District Attorney of Alameda County, Preston Higgins, City Attorney of the City of Oakland, Homer Buckley, Deputy City Attorney of the City of Oakland, William J. Locke, City Attorney of the City of Alameda, Earl J. Sinclair, City Attorney of the City of Berkeley, Clark, Nichols & Eltse and George Clark, Amici Curiae .

JUDGES: In Bank. Preston, J. Waste, C. J., Richards, J., Seawell, J., and Curtis, J., concurred.

OPINION

PRESTON, Judge

Page 475

[279 P. 448] Original proceeding in mandate. The question recurs upon a general demurrer to the petition.

Petitioners are property owners in the city of Albany, a city operating under a freeholders' charter adopted on the seventeenth day of January, 1927. Respondent is the Tax Collector of said city. The territory comprising the city constitutes an elementary school district and at the same time also constitutes a high school district, each of which said districts is duly organized as such as provided by law.

The question presented by this proceeding is the validity of the tax levy made by the trustees of said city for the fiscal year 1928-1929, in so far as it comprises a levy of $ 3.35 per $ 100 of assessed valuation as and for a "fund for the maintenance, acquisition and improvement of schools in the City of Albany within the boundaries of the City of Albany as they now are, said money so raised must be expended within the boundaries of said City of Albany."

Page 476

The charter of said city provides for a board of education, which, among other duties, shall annually "submit in writing to the Council a careful estimate of the whole amount of money to be received from the State and County for the support of the public schools in the City, together with a careful estimate of the amounts, specifying in detail the objects thereof, required from the City for the adequate support of the public schools for the ensuing year." The charter further provides: "The City Council shall include in and apportion from the annual tax levy the sum of not less than thirty-five cents on each one hundred dollars of assessed valuation to be paid into the school fund of the City." (Subd. g., sec. 38, Stats. 1927, p. 2326.)

Acting under this authority the board of education on August 17, 1928, submitted a report to the board of trustees to the effect that the Albany High School District was in need of a junior-senior high school to care for the educational needs of the children of [279 P. 449] the city and district; that no funds with which to purchase secondary school sites or to construct and equip secondary school buildings were available; that less than a year previously a bond issue had been defeated by a narrow margin and the board of trustees were therefore urgently requested to levy a tax of $ 3 on each $ 100 of assessed valuation in the City of Albany as provided by the charter of the city, the moneys thus raised to be used for the following purposes: Purchasing high school lots; building or purchasing or making alterations and additions to and insuring high school buildings and supplying them with furniture and necessary apparatus and improving high school grounds. Acting in part at least upon this recommendation, the city council on the seventeenth day of September, 1928, fixed a total tax rate of $ 4.59 on each $ 100 of assessed valuation, setting forth an estimated expenditure for the maintenance, acquisition and improvement of schools in the City of Albany, without any words to designate whether high schools or elementary schools, or both, were intended to be covered thereby, nor the amount to be used for maintenance for the ensuing year, of $ 186,157.93, apportioning to that purpose $ 3.35 of the rate fixed.

Petitioners, who owned real and personal property within the city, were assessed at the sum of $ 1,850, on which the

Page 477

tax levy for said year at said rate was $ 84.92, fifty per cent of which would be declared delinquent upon the first Monday in December, 1928, with the remainder delinquent the last Monday in April, 1929. Petitioners paid the first installment of said taxes and thereafter tendered to respondent the sum of $ 14 in payment of the remainder claimed to be due as and for said taxes, said sum being estimated upon a school tax rate of 36 cents, and a total rate of $ 1.60, instead of a school tax rate of $ 3.35 and a total tax rate of $ 4.59 as fixed by the city council.

There is no question made as to the sufficiency of the tender if it should ultimately be held that the school tax levy was illegal. Respondent refused to comply with the demand that it accept said sum or to issue a receipt in full to petitioners and this proceeding followed. If these petitioners in fact tendered a sufficient amount to pay the tax legally due, this proceeding is a proper one to compel the issuance of an official receipt in full. (Spring Valley Water Co. v. Planer, 88 Cal.App. 170 [263 P. 323] .)

We face at the outset a challenge to the power of a city operating under a freeholders' charter to levy to any extent a tax for school purposes. We...

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