88 Cal.App. 170, Civ. 5908, Spring Valley Water Co. v. Planer

• Docket Nº: Civ. 5908
• Citation: 88 Cal.App. 170, 263 P. 323
• Opinion Judge: PARKER, Judge
• Party Name: SPRING VALLEY WATER COMPANY (a Corporation), Respondent, v. EDWARD T. PLANER, as Tax Collector, etc., Appellant
• Attorney: Earl Warren, District Attorney, and R. H. Chamberlain, Jr., and Frank M. Ogden, Deputies District Attorney, for Appellant. McCutchen, Olney, Mannon & Greene for Respondent.
• Judge Panel: JUDGES: PARKER, J., pro tem. Knight, Acting P. J., and Cashin, J., concurred. All the Justices present concurred. Knight, Acting P. J., and Cashin, J., concurred.
• Case Date: December 31, 1927
• Court: California Court of Appeals

Page 170

88 Cal.App. 170

263 P. 323

SPRING VALLEY WATER COMPANY (a Corporation), Respondent,

v.

EDWARD T. PLANER, as Tax Collector, etc., Appellant

Civ. No. 5908

Court of Appeals of California, First District, First Division

December 31, 1927

A Petition by Appellant to have the Cause Heard in the Supreme Court, after Judgment in the District Court of Appeal, was Denied by the Supreme Court on February 27, 1928.

APPEAL from a judgment of the Superior Court of Alameda County. H. L. Preston, Judge Presiding.

Affirmed.

COUNSEL:

Earl Warren, District Attorney, and R. H. Chamberlain, Jr., and Frank M. Ogden, Deputies District Attorney, for Appellant.

McCutchen, Olney, Mannon & Greene for Respondent.

JUDGES: PARKER, J., pro tem. Knight, Acting P. J., and Cashin, J., concurred. All the Justices present concurred.

OPINION

PARKER, Judge

Page 171

[263 P. 324] Appeal by defendant from judgment in favor of plaintiff.

This is a proceeding in mandamus. The case involves the validity of certain taxes assessed and also presents the question of the propriety of the remedy sought. The purpose of the action was to compel the tax collector to issue to plaintiff his receipt showing payment in full of current taxes upon the tender of all taxes save and except the district taxes discussed in Spring Valley Water Co. v. County of Alameda, ante, p. 157 [ 263 P. 318]. The contention of appellant is that this is not a proper exercise of the writ of mandate, and his ground of contention is that to employ the writ in similar cases would tend to endless confusion in the system of tax collections, and that plaintiff has a plain, speedy, and adequate remedy under the general law. However, it is the law that the writ of mandate will issue to compel the performance of a plain duty, and it is obvious that when a legal tender within the time specified by statute, of an amount sufficient to discharge the tax claim is made to the tax collector it is his duty to issue the usual receipt, and mandate lies to compel the performance of this duty (Perry v. Washburn, 20 Cal. 318 ).

The plaintiff here in its complaint alleged such a tender on the stated allegations that the taxes which had been omitted from the tender were illegal and void; in other words, that he had tendered and did tender and offer to pay all amounts legally due and...