Wood v. Brady , 68 Cal. 78 ( 1885 )

Myrick, J.

— This case was decided by this court in Department One, January 20, 1885. Hearing in Bank having been granted and had, we are satisfied with the reason given in Department; the judgment is therefore affirmed.

Ross, J., McKee, J., Mobeison, C. J., McKimstby, J., and Thoknton, J., concurred.

The following is the opinion in Department One, above referred to:—

Ross, J.

— Diggins v. Page was an action to enforce a street assessment lien that accrued July 10, 1875, against a lot of land in the city and county of San Francisco. By virtue of a sale made under the judgment rendered in that action, the title of the owner of the lot vested in the plaintiff in the present action. But prior to the accruing of the assessment lien involved in the action of Diggins v. Page, the defendant in the present action acquired a street assessment lien upon the lot, which when Diggins v. Page was commenced, he was proceeding to enforce by action entitled Brady v. Page. And having finally got a judgment declaring his lien and directing a sale of the property to satisfy it, he (Brady) is sought by the present action to be enjoined from enforcing it, upon the ground, as we understand counsel, that the foreclosure of the lien involved in Diggins v. Page extinguished all prior liens. It is not pretended that Brady was a party to the suit of Diggins v. Page, but it is sought to sustain the position by likening the foreclosure of a street assessment lien to a sale of property for the nonpayment of taxes, and a conveyance thereunder.

“ While the power of assessment comes from the general power of taxation, it must not be confounded with it,” said this court in Taylor v. Palmer, 31 Cal. 251. “ In their origin and legal or constitutional complexion they are the same; but in the mode of their exercise, and in the effect of such exercise upon the property of the tax-payer, they are essentially different.” Taxes are a public imposition, levied by authority of the government, upon the property of the citizen generally, for the purpose of carrying on the government, while the more 'restricted term “ assessment ” is usually, as it was in the present case, induced by the request, made known according to the provisions of the charter of the municipal government, of a majority of the inhabitants of the assessment district, and is levied for the benefit of the property situated within the particular district; the assessment being an equivalent from the owner for the improvement made to the value of the property.' Such assessments are not collected like public taxes, but generally, as in the case here, a particular mode of recovering the charge is pointed out by the statute. The statute in the present instance does not purport to attach to the proceedings for collection the effect claimed by appellant, and there are no considerations of public policy that require that it should be given.

Judgment affirmed.