By the Court, Sawyer, C. J. :
This is an action against the Tax Collector of San Francisco, the object of which is to procure a perpetual injunction restraining the sale of certain property upon an assessment made to pay the expenses for widening Kearny street, on the ground that the assessment is void for various reasons, and that the sale and deed of the Tax Collector, although void, would still be a cloud upon the title. The defendant demurred, and the Court sustained the demurrer, on the ground that the facts stated were insufficient to constitute a cause of action,- it being held by the Court that the sale would.be void upon the face of the proceedings, and that the 'deed would, therefore, cast no cloud upon the title.
It has been settled frorp. an early day in this State, and in accordance with the decisions of other States, that a Court will not restrain a sale for taxes, or otherwise, when it is [71]*71apparent. that the sale would he void on the face of the proceedings, upon which the purchaser must necessarily rely to make out a prima facie case to enable him to recover under the sale. In such case he has a perfect remedy at The principle is, that a proceeding which appears upon inspection to be void constitutes no cloud. (De Witt v. Hays, 2 Cal. 469; Burr v. Hunt, 18 Cal. 307; Robinson v. Gaar, 6 Cal. 275; Berri v. Patch, 12 Cal. 299, 300; Weber v. City of San Francisco, 1 Cal. 455; Hardenberg v. Kidd, 10 Cal. 403.)
In this case there was assessed upon the lands of plaintiffs' the sum of eighteen thousand one hundred ninety-three dollars and ten cents. The assessment not being paid, on the 21st of October, the defendant, as Tax Collector, added five per cents to the amount so assessed, making a total amount of nineteen thousand one hundred three dollars and twenty-five cents, or nine hundred ten dollars more than the amount actually assessed, and advertised that he would sell, and was intending to sell for the said whole amount, including the five per cent so added. It is claimed that a sale for this amount would be wholly without authority of law, and, therefore, void.
Section fifteen of the Act under which the proceedings to widen Kearny street were had, prescribes the mode of making an assessment roll, and when made out, provides that “ the Mayor shall annex his warrant, and the same shall be thereupon collected in the manner then prescribed by law for the collection of general taxes in said city and county.” (Stats. 1863-4, p. 353.) It will be seen that the “same,” that is to say, the assessment made, is to be collected. It is not said that anything else is to be collected, and the law for the collection of taxes is referred to for the purpose of designating the manner of collecting, and not what shall be collected. In the Act referred to for the manner of collecting, we find a provision that “on the third Monday of October in each year the Tax Collector shall, at the close of his official business for that day, enter upon the tax list or assessment roll, a statement that he has made a levy upon [72]*72all the property assessed in said roll, .and upon which the taxes have not been paid, for which statement no fees shall be charged; and thereafter he shall charge each and every person an addition of five per cent upon the amount of all. taxes to he paid by such person; which five percent shall be paid into the County Treasury, one half for the use of the State, and the other half thereof for the use of the county.” Stats. 1857, p. 331, Sec. 13.) It is under this provision that the Tax Collector claimed the right to add five per cent. But the provision directing the percentage to be added has no application. It is no part of the manner of collecting. If this provision is applicable, then the last clause of the section is also applicable, which requires that “five per cent shall be paid into the County Treasury—one half for the use of the State, and the other half thereof for the use of the county.” This is as much a part of the manner as the other. Clearly the Legislature never contemplated the collection of a tax for the benefit of the General Funds of the county and the. State, from property holders assessed specially for a local improvement. And if it did, such a proceeding would be arbitrary, and contrary to the requirements of the Constitution, and clearly beyond the scope of the powers of the Legislature. But it was not intended to require this percentage to be added. The language will not reasonably bear such a construction. The Act under which the work was done prescribes exactly what shall be collected, and refers to the other Act solely for the manner of collecting, and nothing in that Act is adopted beyond the mere mode of proceeding, so far as it is applicable. The respondent concedes that the five per cent" was added without authority, and that the threatened sale for the whole amount would on this ground have been void. In this particular the counsel on both sides agree, and we have no doubt they are correct. The invalidity of such a sale in toto is settled, and. such invalidity will be recognized in a Court of law, as well as in equity. It was so held in an action to recover land. “ The entire sum is the consideration of the deed, and this being void in part, is [73]*73void in whole. The property must, at the time, be liable for all the taxes for which it is sold, for it is impossible to separate and distinguish between them, so that the act may be in part valid and in part invalid.” (Blackwell on Tax Titles, 192; Elwell v. Shaw, 1 Greenl. 339; Drew v. Davis, 10 Vt. 506; Doe v. McQuillan, 8 Blackf. 335; Kemple v. McClelland, 19 Ohio, 324; Hardenberg v. Kidd, 10 Cal. 404.)
Appellants claim, however, that the deed executed on the sale would he. prima facie evidence of a good title, and thus the case would fall within the principle of Palmer v. Boling, 8 Cal. 384. We think not. On this point appellants take a position directly opposite to that maintained by them in respect to the addition of five per cent, when they claimed that the Act adopting the mode of proceeding prescribed by another Act must be strictly construed, and confined strictly to the mode. The Act adopted no more of the one referred to than is embraced in its terms. It simply refers to it for the manner of sale. It nowhere provides what the effect of the deed given upon a sale as an instrument of evidence shall be. The provisions in the Act for the collection of taxes, that a deed containing certain spécified recitals shall be prima facie evidence of the truth of the recitals, and of the regularity of all prior proceedings, is directly opposed to the common law, and subversive of the ordinary rales of evidence. It will not be presumed that the Legislature intended to extend this rule to other instruments, unless that intention is expressly stated in clear and explicit terms. To do so would be to violate well settled principles of construction. The manner of collecting was the only part of the statute adopted, and the effect of a deed upon a sale for assessments, as an instrument of evidence in subsequent litigation is, certainly, no part of the “manner” of collecting. It would be a strained rather than a strict construction to so hold. It is clearly no more a part of the manner than the adding of five per cent. Besides, the deed, to be prima facie evidence under the statute of 1857, must contain the very
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By the Court, Sawyer, C. J. :
This is an action against the Tax Collector of San Francisco, the object of which is to procure a perpetual injunction restraining the sale of certain property upon an assessment made to pay the expenses for widening Kearny street, on the ground that the assessment is void for various reasons, and that the sale and deed of the Tax Collector, although void, would still be a cloud upon the title. The defendant demurred, and the Court sustained the demurrer, on the ground that the facts stated were insufficient to constitute a cause of action,- it being held by the Court that the sale would.be void upon the face of the proceedings, and that the 'deed would, therefore, cast no cloud upon the title.
It has been settled frorp. an early day in this State, and in accordance with the decisions of other States, that a Court will not restrain a sale for taxes, or otherwise, when it is [71]*71apparent. that the sale would he void on the face of the proceedings, upon which the purchaser must necessarily rely to make out a prima facie case to enable him to recover under the sale. In such case he has a perfect remedy at The principle is, that a proceeding which appears upon inspection to be void constitutes no cloud. (De Witt v. Hays, 2 Cal. 469; Burr v. Hunt, 18 Cal. 307; Robinson v. Gaar, 6 Cal. 275; Berri v. Patch, 12 Cal. 299, 300; Weber v. City of San Francisco, 1 Cal. 455; Hardenberg v. Kidd, 10 Cal. 403.)
In this case there was assessed upon the lands of plaintiffs' the sum of eighteen thousand one hundred ninety-three dollars and ten cents. The assessment not being paid, on the 21st of October, the defendant, as Tax Collector, added five per cents to the amount so assessed, making a total amount of nineteen thousand one hundred three dollars and twenty-five cents, or nine hundred ten dollars more than the amount actually assessed, and advertised that he would sell, and was intending to sell for the said whole amount, including the five per cent so added. It is claimed that a sale for this amount would be wholly without authority of law, and, therefore, void.
Section fifteen of the Act under which the proceedings to widen Kearny street were had, prescribes the mode of making an assessment roll, and when made out, provides that “ the Mayor shall annex his warrant, and the same shall be thereupon collected in the manner then prescribed by law for the collection of general taxes in said city and county.” (Stats. 1863-4, p. 353.) It will be seen that the “same,” that is to say, the assessment made, is to be collected. It is not said that anything else is to be collected, and the law for the collection of taxes is referred to for the purpose of designating the manner of collecting, and not what shall be collected. In the Act referred to for the manner of collecting, we find a provision that “on the third Monday of October in each year the Tax Collector shall, at the close of his official business for that day, enter upon the tax list or assessment roll, a statement that he has made a levy upon [72]*72all the property assessed in said roll, .and upon which the taxes have not been paid, for which statement no fees shall be charged; and thereafter he shall charge each and every person an addition of five per cent upon the amount of all. taxes to he paid by such person; which five percent shall be paid into the County Treasury, one half for the use of the State, and the other half thereof for the use of the county.” Stats. 1857, p. 331, Sec. 13.) It is under this provision that the Tax Collector claimed the right to add five per cent. But the provision directing the percentage to be added has no application. It is no part of the manner of collecting. If this provision is applicable, then the last clause of the section is also applicable, which requires that “five per cent shall be paid into the County Treasury—one half for the use of the State, and the other half thereof for the use of the county.” This is as much a part of the manner as the other. Clearly the Legislature never contemplated the collection of a tax for the benefit of the General Funds of the county and the. State, from property holders assessed specially for a local improvement. And if it did, such a proceeding would be arbitrary, and contrary to the requirements of the Constitution, and clearly beyond the scope of the powers of the Legislature. But it was not intended to require this percentage to be added. The language will not reasonably bear such a construction. The Act under which the work was done prescribes exactly what shall be collected, and refers to the other Act solely for the manner of collecting, and nothing in that Act is adopted beyond the mere mode of proceeding, so far as it is applicable. The respondent concedes that the five per cent" was added without authority, and that the threatened sale for the whole amount would on this ground have been void. In this particular the counsel on both sides agree, and we have no doubt they are correct. The invalidity of such a sale in toto is settled, and. such invalidity will be recognized in a Court of law, as well as in equity. It was so held in an action to recover land. “ The entire sum is the consideration of the deed, and this being void in part, is [73]*73void in whole. The property must, at the time, be liable for all the taxes for which it is sold, for it is impossible to separate and distinguish between them, so that the act may be in part valid and in part invalid.” (Blackwell on Tax Titles, 192; Elwell v. Shaw, 1 Greenl. 339; Drew v. Davis, 10 Vt. 506; Doe v. McQuillan, 8 Blackf. 335; Kemple v. McClelland, 19 Ohio, 324; Hardenberg v. Kidd, 10 Cal. 404.)
Appellants claim, however, that the deed executed on the sale would he. prima facie evidence of a good title, and thus the case would fall within the principle of Palmer v. Boling, 8 Cal. 384. We think not. On this point appellants take a position directly opposite to that maintained by them in respect to the addition of five per cent, when they claimed that the Act adopting the mode of proceeding prescribed by another Act must be strictly construed, and confined strictly to the mode. The Act adopted no more of the one referred to than is embraced in its terms. It simply refers to it for the manner of sale. It nowhere provides what the effect of the deed given upon a sale as an instrument of evidence shall be. The provisions in the Act for the collection of taxes, that a deed containing certain spécified recitals shall be prima facie evidence of the truth of the recitals, and of the regularity of all prior proceedings, is directly opposed to the common law, and subversive of the ordinary rales of evidence. It will not be presumed that the Legislature intended to extend this rule to other instruments, unless that intention is expressly stated in clear and explicit terms. To do so would be to violate well settled principles of construction. The manner of collecting was the only part of the statute adopted, and the effect of a deed upon a sale for assessments, as an instrument of evidence in subsequent litigation is, certainly, no part of the “manner” of collecting. It would be a strained rather than a strict construction to so hold. It is clearly no more a part of the manner than the adding of five per cent. Besides, the deed, to be prima facie evidence under the statute of 1857, must contain the very [74]*74recitals there prescribed. Those exact recitals in case-of an ordinary tax sale would not be applicable to a case of a- sale for a special local assessment to pay for improvements. We are clearly of opinion that no deed which the Tax Collector could make would he prima facie evidence in this case of the regularity and validity of all the proceedings resulting in the deed. This would make it cover, not the assessment alone, as in cases of ordinary tax sales, but all the proceedings which made an assessment necessary—a much broader field than the recitals of a mere Tax Collector could cover. Ii the purchaser should seek to recover the land, it would not only be necessary to introduce his deed, but he would be obliged to introduce his assessment and show the regularity of the proceedings; and when the assessment, advertisement of sale, and deed are introduced, it will necessarily appear that a sale has been made for nearly a thousand dollars more than the assessment. He could make out no prima facie case without disclosing upon the face of his evidence the fatal defect, and the owners of the land would not be called upon' to rebut his title. There would, then, under the authorities before cited, be no cloud, and there is no ground for sustaining an action for an iuj unction. This is sufficient to require an affirmance of the judgment, without discussing the other grounds of invalidity of the assessment alleged by appellants.
If their other points are well taken, however, the argument based upon them is felo de se. For, if no constitutional, or valid assessment and sale could be made under the law, or, if none was made valid as against plaintiffs, for the reasons claimed, a sale could not affect them, or cloud their title, for the void character of the deed would, in like manner, be apparent without other evidence.
The judgment is affirmed.
Mr. Justice Sakuerson' expressed no opinion.