By the Court, Sanderson, C. J.
This is an action to recover delinquent taxes on certain personal property, brought under the provisions of the Act of the Legislature of the 17th of May, 1861. (Statutes of 1861, p. 471.) After stating the title of the action the complaint proceeds as follows:
The plaintiff above named comes, by J. C. Hinckley, District Attorney for said county, and in pursuance of an Act of the Legislature of the State of California, entitled “An Act to legalize and provide for the collection of delinquent taxes in the counties of this State,” approved May 17, 1861, complains [302] against the defendants Benjamin Holladay and Jesse Holladay, known by the firm name of “ Holladay & Brother,” and for cause of action alleges that the said defendants are indebted to plaintiff in the full sum of three hundred and seventy-one dollars and twenty-one cents, which sum is due, owing and payable from defendants to plaintiff for public revenue and taxes levied as follows: Tax for State purposes, one hundred and sixty-five dollars ; tax for county purposes, two hundred and six dollars and twenty-one cents. Said taxes were levied upon and assessed against personal propérty valued at twenty-seven thousand five hundred dollars, belonging to said defendants, in the County of Solano, for the year 1858, etc.
It is claimed by the appellants that the foregoing complaint does not state facts sufficient to constitute a cause of action, and in support of this objection to the complaint they assign the following grounds : First—Because it does not allege that the Tax Collector has failed to collect the taxes in question by reason of his inability to find, seize or sell property belonging to the delinquents, as required by the second section of the Act under which the suit is brought. Second—Because it does not designate the “ kind and quantity” of the personal property upon which the taxes were levied and assessed, as required by the second section of said Act.
1. The first point seems to have been determined in favor of the appellants by the case of The People v. Pico, 20 Cal. 595. That action, like the present, was brought under the provisions of the Act of the 17th of May, 1861. In that case the taxes sued for had been assessed against real property, which constitutes the only difference between the two cases. The same points were made by the appellant in that case which are made in this, except so far as the second point may be affected by the character of the property against which the taxes were assessed. Both points were there decided in favor of the appellants.
Upon this point the Court held, in effect, that the inability of the Tax Collector to find, seize and sell property belonging to the delinquent, was made by the statute a condition precedent to the right of action therein conferred upon the State; [303] and that the District Attorney had no authority to commence an action to recover unpaid taxes, except in cases in which the Tax Collector had failed to collect them for the reasons specified in the Act; and that without an averment of such failure on the part of the Tax Collector, the complaint fails to state a cause of action. The same principle was announced by us in the case of The People ex rel. Hastings v. Jackson, 24 Cal. 630, where it was held that conditions precedent must be pleaded in all cases, except those arising out of contract, in which latter cases, the pleading of conditions precedent is excused by the sixtieth section of the Practice Act, and a general averment of performance made sufficient.
2. We do not consider the case of The People v. Pico as conclusive of the present case upon the second point made by appellants. The taxes sought to be recovered in that case had been assessed against real property, which was described in the complaint as “ the unsold portion of eleven square leagues of land known as Los Mokelamos.” The second section of the Act of the 17th of May, 1861, provides that the property, if real estate, shall be described in the complaint; and the Court held that the description was insufficient, and thus far the decision in that case is undoubtedly correct; and further than this it was unnecessary for the Court to go for the purpose of deciding that case, and hence so far as that case seems to hold that the assessment must contain a description sufficient for the purposes of the complaint, and that if the assessment is fatally defective in that respect no cause of action can exist under the Act in question, it may be regarded as obiter dictum.
The object of the Act, as declared in the title, is to legalize and provide for the collection of delinquent taxes in the counties of this State. The question as to the power of the Legislature to pass such Acts has been decided in favor of the power too often to admit of doubt at the present time. The first section of the Act provides as follows:
“ Section 1. The assessments of taxes upon all property, real and personal, in the several counties in this State, whether [304] for State or county purposes, for the fiscal year,” etc., * * “ shall be and are hereby legalized and confirmed and are rendered valid and binding, both in law and equity, against the persons and property assessed.”
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By the Court, Sanderson, C. J.
This is an action to recover delinquent taxes on certain personal property, brought under the provisions of the Act of the Legislature of the 17th of May, 1861. (Statutes of 1861, p. 471.) After stating the title of the action the complaint proceeds as follows:
The plaintiff above named comes, by J. C. Hinckley, District Attorney for said county, and in pursuance of an Act of the Legislature of the State of California, entitled “An Act to legalize and provide for the collection of delinquent taxes in the counties of this State,” approved May 17, 1861, complains [302] against the defendants Benjamin Holladay and Jesse Holladay, known by the firm name of “ Holladay & Brother,” and for cause of action alleges that the said defendants are indebted to plaintiff in the full sum of three hundred and seventy-one dollars and twenty-one cents, which sum is due, owing and payable from defendants to plaintiff for public revenue and taxes levied as follows: Tax for State purposes, one hundred and sixty-five dollars ; tax for county purposes, two hundred and six dollars and twenty-one cents. Said taxes were levied upon and assessed against personal propérty valued at twenty-seven thousand five hundred dollars, belonging to said defendants, in the County of Solano, for the year 1858, etc.
It is claimed by the appellants that the foregoing complaint does not state facts sufficient to constitute a cause of action, and in support of this objection to the complaint they assign the following grounds : First—Because it does not allege that the Tax Collector has failed to collect the taxes in question by reason of his inability to find, seize or sell property belonging to the delinquents, as required by the second section of the Act under which the suit is brought. Second—Because it does not designate the “ kind and quantity” of the personal property upon which the taxes were levied and assessed, as required by the second section of said Act.
1. The first point seems to have been determined in favor of the appellants by the case of The People v. Pico, 20 Cal. 595. That action, like the present, was brought under the provisions of the Act of the 17th of May, 1861. In that case the taxes sued for had been assessed against real property, which constitutes the only difference between the two cases. The same points were made by the appellant in that case which are made in this, except so far as the second point may be affected by the character of the property against which the taxes were assessed. Both points were there decided in favor of the appellants.
Upon this point the Court held, in effect, that the inability of the Tax Collector to find, seize and sell property belonging to the delinquent, was made by the statute a condition precedent to the right of action therein conferred upon the State; [303] and that the District Attorney had no authority to commence an action to recover unpaid taxes, except in cases in which the Tax Collector had failed to collect them for the reasons specified in the Act; and that without an averment of such failure on the part of the Tax Collector, the complaint fails to state a cause of action. The same principle was announced by us in the case of The People ex rel. Hastings v. Jackson, 24 Cal. 630, where it was held that conditions precedent must be pleaded in all cases, except those arising out of contract, in which latter cases, the pleading of conditions precedent is excused by the sixtieth section of the Practice Act, and a general averment of performance made sufficient.
2. We do not consider the case of The People v. Pico as conclusive of the present case upon the second point made by appellants. The taxes sought to be recovered in that case had been assessed against real property, which was described in the complaint as “ the unsold portion of eleven square leagues of land known as Los Mokelamos.” The second section of the Act of the 17th of May, 1861, provides that the property, if real estate, shall be described in the complaint; and the Court held that the description was insufficient, and thus far the decision in that case is undoubtedly correct; and further than this it was unnecessary for the Court to go for the purpose of deciding that case, and hence so far as that case seems to hold that the assessment must contain a description sufficient for the purposes of the complaint, and that if the assessment is fatally defective in that respect no cause of action can exist under the Act in question, it may be regarded as obiter dictum.
The object of the Act, as declared in the title, is to legalize and provide for the collection of delinquent taxes in the counties of this State. The question as to the power of the Legislature to pass such Acts has been decided in favor of the power too often to admit of doubt at the present time. The first section of the Act provides as follows:
“ Section 1. The assessments of taxes upon all property, real and personal, in the several counties in this State, whether [304] for State or county purposes, for the fiscal year,” etc., * * “ shall be and are hereby legalized and confirmed and are rendered valid and binding, both in law and equity, against the persons and property assessed.”
This language is broad and comprehensive, and covers every assessment which was in fact made, however defectively and imperfectly it may have been made in any respect. It make no distinction between defects, but cures them all; it discriminates in favor of none, and excepts none from the operation of the statute. It does not provide that such assessments as have such and such defects shall be legalized and that other assessments which have such and such other defects shall be unaffected and left to stand as they stood before, but, on the contrary, the Act proposes to heal every infirmity wherever found and give full vigor to every assessment which was in fact made during the three fiscal years mentioned in the Act. Where the statute makes no exception the Courts can make none. Where an assessment was made during those years against a person or against property, however defectively in any particular, in view of the law as it then stood, such assessment, in our judgment, was made perfect in the eye of the law by the Act in question. Matters of description constituted the more common and obvious defects in such assessments, and to hold that such defects are not cured, so far as the validity of the assessment is concerned, would be to defeat the main object and purpose of the Act. But while imparting validity to the assessment, the law does not propose to conceal from the taxpayer the purpose of the tax, nor the kind, or quantity, or description of the property upon which the tax has been imposed; but on the contrary, if the tax is not paid and suit has to be brought therefor, the District Attorney is required to designate in the complaint the amount of taxes due and unpaid, whether the same is for State or county purposes, and, if for both, how much for each; also, the kind and quantity of property assessed, both real and personal, and, if real, its proper description. Thus the com[305] plaint is made to supply the various defects which, it is supposed by the Act, may be found to exist in the assessment. If the complaint does not do this, the same consequences follow as in other cases. By way of illustration, take the case of The People v. Pico. There the property was described as,the “unsold portion of eleven square leagues of land known, as Los Mokelamos.” This description was defective in not designating by metes and bounds, or some other sufficient mode of identification, the unsold portion of the Los Mokelamos; and for this defect the assessment was invalid; but this defect was cured by the Act in question and its place in the assessment allowed to be supplied by a proper description in the complaint. Had the complaint in that case contained such a description, it would in our judgment have stated a cause of action so far as the point under consideration is concerned.
The case of the People v. Pico assumes that an assessment may have certain defects which are fatal, and certain other defects which are not fatal, the first being incurable and the latter curable. We are unable to comprehend the distinction attempted to be made. An assessment not fatally defective stood in no need of the healing power of the Legislature and does not therefore come within the class upon which the statute was intended to operate. It was into fatally defective assessments that the Legislature intended to infuse life, and if the statute does not operate upon such it necessarily operates upon none. The doctrine in Pico’s case seems to us to nullify the statute under consideration, by making the assessment depend upon antecedent laws for its validity rather than the statute. If the assessment must furnish the material for the complaint and the District Attorney cannot go beyond the description of the property there found and can supply none of its defects, the passage of the Act is question was an idle ceremony so far as it attempts to legalize imperfect assessments.
The property in the present case is described as “ personal property valued at twenty-seven thousand five hundred dol[306] lars.” It is presumed that this description is taken from the assessment, and, if so, the assessment,, but for the Act of the 17th of May, 1861, would be fatally defective; but that Act cures the defect, and the assessment, which was previously worthless, has become legal and binding, and may be enforced by suit, provided the complaint supplies a proper description. The statute requires that the kind and quantity of the property, both real and personal, shall be designated in the complaint—that is to say, the kind and quantity of real property shall be designated, and the kind and quantity of personal property shall be designated. The use of the word “both” in the connection in which it is used makes this reading imperative. The word “ kind” does not distinguish between and refer solely to the terms real and personal, but the latter terms are used genetically, and the word “kind” refers to the species of each as defined in the Revenue Act. The statute divides personal property into various classes, and a lumping assessment under the general head of personal property is insufficient. It would be impossible to fix a valuation upon property so assessed, nor could the valuation be corrected by the Board of Equalization. The different classes must be stated—as, for example, goods, solvent debts, horses, cattle, etc. The complaint in this respect is deficient and obnoxious to the objection made by the appellants.
3. Another point is made upon which we deem it proper to express an opinion, for the purpose of furnishing a rule of decision upon a second trial, should one be had. It appears from the evidence that the property against which the taxes in controversy were assessed consists of cattle. On the first Monday in March of the year for which the taxes were assessed, these cattle were in Solano County. Between that time and the month of May following they were removed to the County of Alameda, and it is claimed that they were there assessed and the taxes paid, and that therefore the appellants ought not to be made to pay the taxes which were assessed in Solano County, for if so he will be made to pay taxes upon the same [307] property twice. Of course the law does not exact double taxes.
It is the duty of the Assessor to assess all taxable property in his county between the first Mondays of March and August in each year. All property which is within his county on the first Monday in March is assessable in his county, provided it is in his county at the time the assessment is made; and the taxes thereon are payable in his county. But, if the property is removed from his county to another before the assessment is actually made, he cannot make an assessment which will be payable in his own county; but he may make the assessment in the manner prescribed in the twenty-sixth section of the Revenue Act (Wood’s Digest, p. 622) and transmit the same to the Assessor of the proper county. The taxes are due and payable in the county where the property was first assessed, and if the property, after it has been assessed, be removed into another county and there assessed, the first assessment is unaffected thereby, and a payment of the latter assessment is not a discharge of the former. In other words, the first assessment, if the property was in the county at its date, is the lawful one as between the two, and if the taxes be paid upon the latter assessment it is a mere voluntary payment, and is no answer to a demand for payment upon the first. Hence, if the cattle in question were in Solano County at the date of the assessment made by the Assessor of that county, the taxes were legally due in that county, and a payment of taxes subsequently assessed upon them in Alameda County was no discharge of the debt, but a mere voluntary payment. It wras the business of the appellants to know whether their cattle had been assessed in Solano County before their removal ; and if so, such assessment and payment thereon would have been a complete answer to the claim of Alameda County.
The judgment is reversed and a new trial ordered, with leave to the respondent to amend the complaint.