Farmers & Merchs.' Bank of L.A. v. City of Los Angeles

91 P. 795, 151 Cal. 655, 1907 Cal. LEXIS 481

• Court: California Supreme Court
• Decided: August 13, 1907
• Docket: L.A. No. 1660.
• Status: Published

Opinions

THE COURT.

This is an action brought by plaintiff, a banking corporation, to recover from the city of Los Angeles the sum of $4,235.96, alleged to have been paid by plaintiff under protest for illegal taxes for the fiscal year 1902-1903. A general demurrer for want of facts sufficient to constitute a cause of action was interposed to the complaint and overruled. An answer denying certain allegations of the complaint having been filed, the cause was tried, and judgment went for plaintiff. Defendant appeals upon the judgment-roll.

It is contended that the complaint is fatally defective because it fails to aver that before the commencement of the action plaintiff presented any claim or demand for the amount sought to be recovered, or any portion thereof, to the city council of defendant.

The complaint of plaintiff contained no allegation whatever as to the presentation of any such 'claim or demand to the city council, or anything to show that the matter was in any way brought to the attention of that body before suit, except in so far as it was presented to it sitting and acting as a board of equalization on an application for the reduction of the assessment.

The freeholders’ charter of the city contains the following provisions in the matter of claims and 'demands:—

“Sec. 208. All claims and demands whatever against the city of Los Angeles, except interest on bonds and bonds of the funded debt, shall be paid only on demands as herein provided for.

“Sec. 209. Said demands . . . shall be presented to the council on forms and blanks to be provided by the city clerk, and shall be referred to its committee on finance. The said committee shall, by indorsement thereon, approve or reject the same, in whole or in part. The council shall then consider the said demands and the action of said committee thereon, and shall, if the same be just and legal, approve the same; or may, if it so determine, approve in part or' reject the whole. . . .

“Sec. 216. No payment can be made from the city treasury, or out of the public funds of said city, unless the same be specially authorized by law or this charter, nor unless the demand which is paid be audited as in this charter provided. . . .

“Sec. 222. No suit shall be brought upon any claim for money or damages against the city of Los Angeles, . . . until a demand for the same has been presented as herein provided, and rejected in whole or in part. . . . ”

Under provisions of law of this character, it has always been held in this state that the presentation of a demand in the manner provided was a necessary prerequisite to the maintenance of a suit against a public corporation to recover money, and that a complaint containing no such allegation fails to state a cause of action. In McCann v. Sierra Co., 7 Cal. 121, it was held in an action for damages for trespass that under a law providing that “no person shall sue a county in any case, for any demand, unless he .or she shall first present his or her claim to the board of supervisors for allowance, . . . ” it was essential to plaintiff’s recovery that the complaint contain an averment of presentation of the claim. The point was made in that case that the section only applied to actions ex contractu, but the court held it applicable in all cases, and held the intention of the legislature to have been to prevent the revenue of the county from being consumed in litigation, by providing that an opportunity of amicable adjustment should be first afforded to the county, before it could be charged with the costs of a suit. In People v. Supervisors, 28 Cal. 429, it was declared that a claimant has no cause of action against a county for the recovery of money until lie has presented his claim or demand to the board of supervisors for allowance. In Rhoda v. Alameda County, 52 Cal. 350, an action for damages for injury to plaintiff’s building, judgment went for plaintiff by default, and on appeal the judgment was reversed solely because there was, in the opinion of the court, no sufficient allegation of the presentation of a claim prior to suit. In Bigelow v. Los Angeles, 141 Cal. 503, [75 Pac. 111], it was declared that in order that a suit might be treated as one for damages it was absolutely necessary under the charter that a claim therefor should have been presented to the city council. In Alden v. Alameda County, 43 Cal. 270, the action was on a judgment, and there was no allegation in the complaint of the presentation of a claim to the board of supervisors. A demurrer for want of facts was sustained, and this court held that the statute prohibiting suit “in any case or for any demand, without first presenting the claim to the board, was sufficiently comprehensive to include a cause of action founded on a judgment against the county.” It was here again said that the provision was intended to prevent the county from being harassed by needless and expensive litigation. In Arbios v. County of San Bernardino, 110 Cal. 553, [42 Pac. 1080], it was again said that statutes requiring the presentation of claims prior to suit are framed with the purpose of avoiding useless expense in litigation, and to give to the county ample opportunity to avoid such expense. These cases show that it is the policy of the law declared in such provisions that the public corporation shall always be given an opportunity to pay before being subjected to an action upon any money demand. They further show that a strict compliance with such conditions has always been insisted on by this court, and that they apply to all classes of claims not expressly excepted in the law itself.

While it is true, so far as we have discovered, that the question has never been discussed in connection with a claim for the recovery of taxes paid under protest, we can perceive no material difference between such a claim and claims of the character considered in some of the decisions above cited. Such claims are often settled and paid when presented, and the presumption is that they always will be so paid, if they are just. The policy of the law applies as well to them as to- other demands against a city, and the reasons for the rule when applied to such a claim are as cogent as when applied to any other claim. We find in the law no method by which the city can voluntarily refund taxes illegally collected, without the presentation of a claim therefor, and if these provisions of the charter are not applicable, it would follow that the city must in every case be subjected to the costs of a suit, even though the proper officers consider the claim a just and legal one, and are willing to pay the same.

It is doubtful whether section 3819 of the Political Code, relating to the recovery by suit of taxes paid under protest, is applicable to the city of Los Angeles. It is in terms limited to the matter of state and county taxes. Section 46 of the city charter, providing that “the mode and manner of collecting such municipal taxes, and enforcing such tax lien, and the proceedings thereafter, shall substantially be the same as the mode and manner at the time prescribed by law for the collection of state and county taxes in said county,” does not necessarily make the provisions of section 3819 of the Political Code applicable. Although this section, enacted several years after the adoption of the Los Angeles charter, was placed in the chapter entitled “Collection of Property Taxes,” it, strictly speaking, has nothing to do with the mode and manner of collecting taxes or enforcing the tax lien or with the “proceedings thereafter,” within the meaning of those words in the above provision. But, assuming that the charter provision should be read as making it applicable, it must be construed subject to the provisions of the charter as to claims and demands against the city. Such a construction would require presentation of the claims before suit. A provision practically the same as section 3819 of the Political Code was contained in an ordinance adopted by the city council of Los Angeles. If we assume that the provision must be construed as authorizing suit without any prior presentation of the claim to the city council, the ordinance provision must necessarily be held void because in conflict with the superior charter provisions. We do not think, however, that it must be so construed. It may very reasonably be construed as simply giving a legal claim against the city, to be presented to the city council before suit in the same manner that all other claims are required to be presented.

It is contended that there was an involuntary trust against the city, rendering a demand unnecessary. We see no force in this contention. The money paid as taxes under protest became the property of the city, subject to no trust whatever. The taxpayer’s right against the city in the matter was thenceforth only such as was conferred either by section 3819 of the Political Code or the ordinance provision authorizing an action for the recovery of the amount of taxes paid upon a void assessment. In no sense of the words is this an action to enforce a trust.

The making of the application for the reduction of the assessment by plaintiff to the city council sitting as a board of equalization, prior to .the payment by it of the money sought to be recovered, was of course not the presentation of any claim or demand so far as the alleged cause of action here involved was concerned.

There is no force in the contention that the council could not have allowed the claim, because the action of the board of equalization in refusing to reduce the assessment was conclusive as to the validity of the assessment. As to matters concerning which the action of such a board is conclusive, there is no power of review anywhere, even in an action to' recover the tax paid under protest, and plaintiff’s contention in this regard would leave it without any remedy whatever.

It cannot be held that the making-of a proper demand here would have been a vain and useless thing, and, therefore, was not required. We are satisfied that the city council had jurisdiction to allow the claim if properly presented. The fact that the board of equalization had several months before refused to reduce the assessment does not conclusively establish that the city would not have allowed the claim, but however that may be, the presentation of the claim or demand is, under the charter, a prerequisite to suit.

We can see no escape from the conclusion that the complaint, by reason of its failure to allege a presentation of a claim to the city council, must be held insufficient to support the judgment.

The judgment is reversed and the cause remanded, with leave to plaintiff to amend its complaint within such time as may be allowed therefor by the trial court.