Opinion
Appeal from the District Court, Eleventh Judicial District, El Dorado County.
This was an action to recover delinquent taxes due the City of Placerville. Judgment in the court below passed for the defendants upon demurrer to plaintiffs' complaint. Plaintiffs appealed.
COUNSEL:
When power is given by statute, but the means of executing it are not prescribed, it must be executed according to the course of the common law. (6 Bac. Abr. Tit. Stat. 383, 384.)
Public and private statutes are construed alike. (9 Porter, 226.)
We are aware of the rule that when a statute gives an authority to a particular person or officer, all others are excluded. (Dwarris, 767; 11 Co. Rep. 59-64.)
But a suit in court to enforce payment of taxes does not necessarily take it out of the hands of the city collector, nor does the bringing of the suit by the city attorney necessarily imply that he is substituted for the collector in the collection of the tax. Act 1863, sec. 37, p. 219, makes it the duty of the city attorney to attend to all suits, matters, and things in which said city may be interested. It certainly cannot be construed that the city collector should be the party plaintiff in the action; that would violate section two of the charter.
A statute should be so construed as to render it valid, and if possible operative. (12 Cal. 884; 27 Cal. 227.)
The Common Council provided by ordinance that the delinquent taxes of the city should be collected by suit in the manner provided by the Revenue Laws of this State, which laws, so far as applicable, were made a part of the ordinance. They thereby provided the only manner which under the charter could be provided. (Sec. 27 of Act of Incorporation.) This was the machinery that the collector puts in motion in returning the list of delinquent taxes, as required by the Revenue Laws. In this sense the collector sells.
A statute must be construed so as to give meaning and intent, if possible, to every clause and word. (Souter v. Sea Witch, 1 Cal. 164; 6 Cal. 47; 28 Vt. 354; 5 Mich. 114; 31 Ala. 227; City of San Francisco v. Hazen, 5 Cal. 171.)
Where, if the words of a statute should be construed according to their technical signification, it would be inoperative, but if construed according to their common signification, it would have a reasonable operation, the latter mode of construction should be adopted. (Robinson v. Varnell, 16 Texas, 382.)
Laws intended for public convenience and for necessary regulations should be liberally construed in favor of the public interests. (1 E. D. Smith, 293.)
Blanchard & Irwin, and J. G. McCallum, for Appellants.
J. L. English, and A. Comte, Jr., for Respondents.
JUDGES: Sprague, J. Mr. Justice Rhodes expressed no opinion.
OPINION
SPRAGUE, Judge
The question presented on this appeal involves the validity of an ordinance of the Common Council of the City of Placerville, so far as the same prescribes the mode of enforcing the collection of delinquent city taxes.
The twenty-third section of the Act " to incorporate the city of Placerville, and extend the limits thereof," approved April 6, 1863 (Stats. 1863, p. 215), authorizes the Common Council " to levy and collect taxes on all property within the city, both real and personal." The same Act (section four) provides for the election of a city marshal and city attorney, and that the marshal shall be ex officio collector and superintendent of streets. Sections twenty-seven and thirty-five of the same Act read as follows:
" Sec. 27. Real and personal property may be sold by the city collector for taxes or assessments due the city. The manner of assessing and collecting taxes, and proceedings for the sale of property in case of non-payment of the same, shall be prescribed by ordinance.
" Sec. 35. It shall be the duty of the collector to receive and collect all taxes and licenses due the city, and all other revenues or money due or to become due, and pay the same over to the treasurer. The time and manner of such collection and payment shall be such as the Common Council shall by ordinance prescribe."
Municipal corporations possess and can exercise only such powers as are expressly or by necessary implication conferred or delegated by the legislative act of incorporation; and when the legislative charter prescribes the mode of exercising such delegated powers, it must be strictly pursued.
The provisions of appellant's charter, above quoted, manifestly confer upon the city collector the power, and make it his duty, to collect all taxes due the city; and, in the process of such collection, when it becomes necessary, to sell both real and personal property for taxes due the city. But the time and manner of such collection and sales by the collector are to be prescribed by ordinance of the Common Council; in other words, the charter authorizes the Common Council, by ordinance, to prescribe the time and mode of procedure by the collector in collecting taxes and making sale of property for taxes due the city. This power and duty of collecting city taxes and making sale of real and personal property to enforce such collection, having been expressly conferred upon the city collector by the charter, the question arises, Is the ordinance of the common council prescribing the " time and manner of collecting" city taxes in conformity or in conflict with the terms of such charter?
The mode of procedure for collecting delinquent taxes due the city, prescribed by sections six and seven of the ordinance of the Common Council, as found in the transcript, dispenses entirely with the services of the city collector in the process of collecting such taxes after the first Thursday in January, 1867, and provides that the city attorney, upon receiving the general delinquent list, which the collector is required to have prepared and filed with him on that day, " shall proceed to collect the same in manner and form as provided in the Revenue Laws of this State, so far as applicable to the county of El Dorado." Section seven also provides that " the city attorney, upon being notified by the city collector of any person, firm, corporation, or association refusing or neglecting to pay taxes on personal property, shall immediately commence suit * * * before a court of competent jurisdiction for collection of the same in the manner prescribed by the Revenue Laws of this State." This authorizes the collector, upon refusal or simple neglect to pay of a party from whom city taxes are due upon personal property, to transfer the powers and duties devolved upon him by the city charter to officers and tribunals not authorized by the charter. The seventh section of the ordinance above referred to is manifestly unauthorized by and in direct conflict with the terms of the charter, as it clearly assumes to dispense with the agency provided by the terms of the act of incorporation for the collection of taxes due the city, and substitutes agencies not authorized or contemplated.
Judgment affirmed.