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8 3861. PROCEEDS OF POLL-TAX, TO WHAT FUND PAID (repealed).

History: Enacted March 12, 1872; amended March 22, 1880, Code
Amdts. 1880 (Pol. C. pt.), p. 17; repealed May 11, 1917, Stats. and
Amdts. 1917, p. 432. In effect July 27, 1917.

8 3862. COMPENSATION OF ASSESSOR FOR COLLECTING POLL-TAX • [repealed).

History: Enacted March 12, 1872; amended March 24, 1874, Code Amdts. 1873-4, p. 164; March 28, 1877, Code Amdts. 1877-8, p. 70; repealed May 11, 1917, Stats, and Amdts. 1917, p. 432. In effect July 27, 1917.

CHAPTER XI.
MISCELLANEOUS PROVISIONS.
$ 3881. Clerical errors in assessment-books, correction.
8 3898. Distribution of moneys received from sale.

8 3881. CLERICAL ERRORS IN ASSESSMENT-BOOKS, CORRECTION. Defects in description or defects in form or clerical omissions of the assessor, or clerical errors of the assessor, in any assessment-book, when it can be ascertained from the assessment-book, or from the assessor's maps or block books, or other papers in the assessor's office, what was intended, or what should have been assessed, may, with the written consent of the district attorney, be supplied or corrected by the assessor at any time after the assessment was made, prior to the sale for delinquent taxes; provided, that where said change will decrease the amount of taxes charged against the taxpayer by reason of said assessment, the consent of the board of super. visors shall also be necessary to said change; and provided, further, that where said change will increase the amount of taxes charged against the taxpayer by reason of said assessment, the person so charged shall be given at least five days' notice of the time when the matter will be heard by the board of supervisors and he may at such time present any objections he may have to such change to the board of supervisors, and their decision in the matter shall be conclusive. The date and nature of every such correction shall be entered on the assessment-book opposite said assessment and the written authority therefor shall be filed by the assessor with the auditor and preserved by the auditor as a public record, and he shall make the proper charges or credits in his account with the tax-collector. In the city and county of San Francisco the written consent of the city attorney shall have the same force and effect as the written consent of the district attorney.

History: Enacted March 12, 1872; amended April 3, 1876, Code
Amdts. 1875-6, p. 59; March 28, 1895, Stats. and Amdts. 1895, p. 337;
March 23, 1901, Stats, and Amdts. 1900-1, p. 653; March 21, 1907, Stats,
and Amdts, 1907, p. 755, Kerr's Stats. and Amdts. 1906-7, p. 180; May 26,

1917, Stats. and Amdts. 1917, p. 968. In effect July 27, 1917. § 3897.

the lands conveyed to it for delinquency in

the payment of taxes is a part, constitute SALE OF PROPERTY SOLD TO STATE

the tax collector the agent of the state for FOR TAXES.

making such sale and passing the title to 1, 2. Construction.

the purchaser, and the recitals in a deed ex3, 4. Enumerated charges, amount of.

ecuted by him of a prior sale of the prop5, 6. Notice of sale.

erty to the state for nonpayment of taxes 7–14. --Compliance with requirement of

and a written authorization of the controlmailing.

ler of the state for the sale, a published no15. Right of redemption.

tice of the time of sale at public auction 16. Sale to highest bidder.

and a sale made pursuant thereto suff1. Construction. The sections of the Po ciently show that the tax collector was aulitical Code which provide the general thorized or was acting as the agent of the scheme for the collection of the revenues state in the making of the deeds.-Hanson of the state, of which a sale by the state of v. Goldsmith, 170 Cal. 512, 150 Pac. 364.

2. Due process of law is not lacking where, under section 3897 of the Political Code, land worth five hundred dollars becomes vested in the state for delinquent taxes and the state afterward sells the property for one hundred and sixty-six dollars, which go to the state in satisfaction of a tax amounting, with costs and penalties, to sixteen dollars and nineteen cents, the owner having had opportunity for hearing as to the fairness of the original assess ment and notice of the sales to the state and by the state.-Chapman v. Zobelein, 237 V. S. 135, 59 L. Ed. 874, 35 Sup. Ct. Rep. 518.

3 Enumerated charges, amount of.-A sale for an amount less than that specified is prohibited and therefore void.—Jordan 8. Beale, 172 Cal. 226, 155 Pac. 990.

4. The primary object of the state in selling the land is to recover the taxes, penalties, costs, etc., and this is indicated by the requirement of the law that the land must be sold for an amount not less than these enumerated charges. Whoever pays more at the sale does so as a volunteer and at the risk of the proceedings being found Invalid.-O'Reilly v. All Persons, 29 Cal. App. 49, 154 Pac. 747.

3. Xotice of sale.-The recital in a deed that the tax collector "caused due notice to be given of the sale of said property at public auction by publishing notice thereof for at least three weeks in a newspaper published in said county," sufficiently shows a publication of the notice "for three successive weeks," as required by section 3897 of the Political Code; the use of the preposition "for" in the clause "for at least three weeks," when applied with relation to a period of time, clearly means “during," "throughout," or "during the continuance" of three weeks successively or continuously.-Hanson v. Goldsmith, 170 Cal. 512, 150 Pac. 364.

6. The recital in a deed that the public cation of notice was of a sale of the property at public auction at the office of the tax collector "at 12 o'clock M." of a stated day, and that "on the day fixed for the sale". the property was "duly offered" for sale, is sufficient, without stating that the sale was made at the hour set.-Hanson v. Goldsmith, 170 Cal. 512, 150 Pac. 364.

7. -Compllance with requirement of mailing, unless the last post-office address is unknown, is essential to the validity of à sale by the state under this section.Davis v. Peck, 165 Cal. 353, 132 Pac. 438.

8. The copy of the notice required to be published must, where the name of the party to whom the property was last assessed is known, be mailed at least three weeks before the sale, and a sale and deed made pursuant thereto are void where the only proof of a compliance is the recital of the deed which shows that only seventeen days' no

tice was given.-Knight v. Hall, 28 Cal. App. 435, 152 Pac. 952.

9. A sale and the deed made pursuant thereto are void where the only evidence purporting to show a compliance with this section was the recital in the deed, which was insufficient in that it did not state that the notice was mailed to the last known post-office address of the party to whom the land was assessed, nor state any fact as an excuse for failure to comply.-Knight v. Hall, 28 Cal. App. 435, 152 Pac. 952.

10. It is not error, in an action involving the validity of such deeds, to exclude a receipt signed by the party to whom the land was last assessed, showing that he had received the registered envelope wherein was inclosed the copy of the notice of sale mailed by the tax collector, since the same did not tend to prove compliance with the statute.-Knight v. Hall, 28 Cal. App. 435, 152 Pac. 952.

11. It is necessary in the notice of sale by the state of land for delinquent taxes that the penalties and costs be stated separately.Cordano v. Kelsey, 28 Cal. App. 9, 151 Pac. 391, 398.

12. A deed executed by a tax-collector on a sale of land for the state for nonpayment of taxes is void, where only twenty days intervenes between the date of the mailing of a copy of the notice of the sale to the person to whom the property was last assessed and the date specified in the notice for the sale.-Cordano v. Kelsey, 28 Cal. App. 9, 151 Pac. 391, 398.

13. A tax-collector's deed which shows on its face that notice of the sale was not given to the owners of the property for the length of time required by section 3897 of the Political Code is void, and a nonsuit in an action to quiet title based upon the deed is properly granted. — Meddock v. Brown, 27 Cal. App. 290, 149 Pac. 776.

14. The recital in a tax-deed from the state on the matter of notice is not conclusive but only prima facie evidence and is open to attack.-Meddock v. Brown, 27 Cal. App. 290, 149 Pac. 776.

15. Right of redemption.—The owner's right of redemption remains until the state has disposed of the land under section 3897 of the Political Code, and the owner is therefore entitled to object to having his right of redemption cut off by any sale other than one made in accordance with the direct requirements of the law.-Jordan v. Beale, 172 Cal. 226, 155 Pac. 990.

16. Sale to highest bidder.—The fact that the owner could not be injured by having the property sold for less than the amount required by such section, is immaterial, as the statute in terms provides for a sale “to the highest bidder for cash," and clearly contemplates a sale for as large an amount as may be obtained.-Jordan v. Beale, 172 Cal. 226, 155 Pac. 990.

$ 3898. DISTRIBUTION OF MONEYS RECEIVED FROM SALE. 1. The moneys received from such sale shall be distributed as follows: The tax-collector shall deduct the penalties, costs and other amounts received as expenses of such sale in such cases as the property so sold shall have been sold for a sum not less than the amount of all taxes levied thereon and all interest, costs, penalties and expenses up to the date of such sale, but where the property so sold shall have been sold for a sum less than said amount, the tax-collector shall deduct only the amounts received as expenses attending such sale, and the balance shall be distributed between the state and the county, or city and county, in the proportion that the state rate bears to the county, or city and county, rate of taxation; said tax-collector shall pay all amounts into the county treasury, and the treasurer shall account to the state for its portion in the settlement required by section three thousand eight hundred sixty-five and section three thousand eight hundred sixty-six.

2. [Deed to purchaser.] On receiving the amount bid, as prescribed in the preceding section, the tax-collector must execute a deed to the purchaser, which deed shall be in substance and may be in form as follows: [Form of tax-deed.) “This indenture, made the ...... day of ........., 19.., between .............., tax-collector of the county of ........

... State of California, first party, and ................... of the county of .. State of .................., second party, witnesseth:

That whereas the real property hereinafter described was duly sold and conveyed to the State of California for the non-payment of taxes which had been legally levied and which were a lien upon said property under and in accordance with law; and Whereas in conformity with law the State of California, acting by and through

........., tax-collector as aforesaid, did offer said property, hereinafter described, for sale at public auction to the highest bidder, at which sale said second party became the purchaser of the whole thereof for the sum of $..

Now, therefore, the said first party in consideration of the premises and in pursuance of the statute in such case made and provided, does hereby grant to the said second party, his heirs and assigns, that certain real property hereinbefore referred to, and situate in the ................ County of ..... ............., State of California, more particularly described as follows, to wit:

In witness whereof, said first party has hereunto set his hand the day and year first above written.

.....

Tax-collector of the county of ..... [No charge for tax-deed.] No other matters need be recited in the said deed than those provided for in the above form. No charge shall be made by the tax-collector for the making of any such deed, and the acknowledgment of all such deeds shall be taken by the county clerk free of charge. Said deed shall be prima facie evidence of all the facts recited therein and shall operate to convey all of the interest of the state in and to said property.

3. [Tax-collector's report of sales.] Within ten days after each sale as provided in the preceding section the tax-collector shall report to the assessor and recorder, giving the name or names of all persons to whom deeds have been issued under the provisions of this section, together with the dates of such deeds, the amount for which the property was sold, a description of the property conveyed, together with the numbers and dates of the certificates of sale and of the tax deeds by which title to such property so granted was conveyed to the state.

4. [Recorder's notations.] The recorder shall note on the margin of each certificate of sale and of each tax deed involved in the sale and transfer of such property, the name of the purchaser, the date of the deed to the purchaser and the consideration named therein. The assessor shall use such report in his determination of the ownership of such property for assessment purposes.

5. (a) [Refund to purchaser not finally awarded property. Whenever in any action at law, it has been or shall be determined by a court that the sale and conveyance provided for in this and the preceding section or in section three thousand seven hundred seventy-one of this code heretofore or hereafter made are void for any reason, and that the purchaser from the state may not be finally awarded the property so purchased, no decree of the court shall be given declaring a forfeiture of the property until the former owner, or other party in interest, shall have repaid to the purchaser the full amount of taxes, penalties and costs paid out and expended by him, to be determined by the court, in pursuit of the state's title to the property so sold. The said purchaser may within one year after such decree becomes final also present a claim against the county, in the manner provided by law, for a refund of the amount paid into the county treasury as the purchase price of such property in excess of the amount for which he may have been reimbursed for taxes, penalties and costs as herein provided, and such excess shall be refunded in accordance with section three thousand eight hundred four of this code.

(b) [Refund for government land erroneously sold.) Whenever it shall be determined to the satisfaction of the board of supervisors of the county in which the land is situated that any land belonging to the United States government or to this state, a municipality or other political subdivision of this state has been erroneously sold and conveyed under the provisions of this or the preceding section, or section three thousand seven hundred seventy-one of this code, and the said land should not have been so sold, the purchaser at said sale may present a claim against the county in the manner provided by law for a refund of the amount so paid into the county treasury by reason of such sale.

History: Enactment approved March 24, 1874, Code Amdts. 1873-4, p. 154; amended March 28, 1895, Stats. and Amdts. 1895, p. 338; March 1, 1905, Stats, and Amdts. 1905, p. 32; March 19, 1907, Stats. and Amdts. 1907, p. 699, Kerr's Stats, and Amdts. 1906-7, p. 182; June 10, 1913, Stats, and Amdts. 1913, p. 560; May 18, 1917, Stats, and Amdts. 1917, p. 715. in effect July 27, 1917.

1. As to recitals in deed.-A recital in the deed that the tax collector "did mail a copy of said notice, postage thereon prepaid and registered, to the party to whom the land was last assessed next before such sale" is not a recital either that the notice had been mailed to such party "at his last known post-office address" (which is the mailing required by law), nor is it a recital of the fact which would excuse want of

mailing (no post-office address was known). - Davis v. Peck, 165 Cal. 353, 132 Pac. 438.

2. Burden of proof as to notice.-If the giving of notice by mailing, or the fact that such notice was excused because no postoffice address was known may be shown by evidence aliunde, the burden of proof is on the party claiming under a deed which does not contain the recital.-Davis v. Peck, 165 Cal. 353, 132 Pac. 438.

PART IV.
OF THE GOVERNMENT OF COUNTIES, CITIES AND TOWNS.

TITLE II.
OF GOVERNMENT OF COUNTIES,

CHAPTER IV.

LEGISLATIVE DEPARTMENT.

ARTICLE V.
ADDITIONAL POWERS AND DUTIES.
$4052c. Erection of historic monuments [new].

8 4005b.

it has been paid upon the warrants approved 1. Construction.-It may be forcibly ar- in good faith by an auditor.-Calaveras gued that this is a statutory provision al- County v. Poe, 167 Cal. 519, 140 Pac. 23. lowing the recovery of money even though

§ 4007.

1. Amendment of 1909, effect of.-By the amendment of 1909 the legislature intended to and did destroy whatever force and effect this section as enacted in 1907 possessed in the matter of a re-classification by operation of law of the counties of the state following the taking of a federal census, and there can be now no such re-classification except by an affirmative and direct act of the legislature itself.-McFadden v. Borden, 28 Cal. App. 471, 152 Pac. 977.

2. Construction.The taking of a federal census does not have the effect of automatically changing the compensation of the county officers according to the popula. tion of the counties as ascertained by such census. The quantum of compensation is determined wholly by and upon the classification of counties for that purpose as required by the constitution.—McFadden v. Borden, 28 Cal. App. 471, 152 Pac. 977.

§ 4015.

1. Division of county into townships.The abolition or creation of a judicial township in a county by the board of supervisors is a legislative act and not ministerial or executive.-Osborn v. Merced County, 27 Cal. App. 85, 148 Pac. 970.

§ 4021a.

RECALL OF COUNTY OFFICERS. 1. Injunction restraining calling special

election 2, 3. Sufficiency of petition, and grounds.

4. Withdrawal of names from petition.

1. Injunction restraining calling special election.- A suit for an injunction restraining a board of supervisors from calling a special election on a petition demanding a recall of plaintiff as a member of such board of supervisors, because the petition does not conform to the requirements of this section, is one in equity. An appeal from a restraining order and order to show cause must be taken to the supreme court, as the district court of appeals is without jurisdiction.Laam v. McLaren, 28 Cal. App. 68, 151 Pac. 290.

2. Suficiency of petition, and grounds.In the absence of fraud or mistake or other sufficient ground for challenging the clerk's certificate as to the determination of the sufficiency of the petition is conclusive so far as the number and genuineness of the signatures of the electors are concerned. The duty then devolves upon the board of supervisors to carry out the objects of the petition by ordering a special election.Laam v. McLaren, 28 Cal. App. 632, 153 Pac. 985.

3. The statement of grounds in the petition for the recall "is intended solely for the information of the electors" and whether the plaintiff or the court to which he appeals regards them as sufficient ground for plaintiff's removal is immaterial as is also whether the grounds are true or false. The voters to whom the question of recall or removal is submitted are the judges of the sufficiency of the grounds.---Laam v. McLaren, 28 Cal. App. 632, 153 Pac. 985.

4. Withdrawal of names from petition.The question as to whether the signers of a recall petition have the right to withdraw their names after the clerk has certified as to the sufficiency of the number and genuineness of the signatures, discussed but not decided.-Laam v. McLaren, 28 Cal. App. 632, 153 Pac. 985.

§ 4017.

1. Construction.—The provisions of the charter of San Bernardino county as to the consolidation of county offices are not superseded by the terms of this section upon the same subject.—More v. San Bernardino County, 31 Cal. App. 388, 160 Pac. 702.

$ 4018.

1. Construction. The board of supervisors have no power after separating the duties of the county auditor and county recorder, to declare the office of auditor vacant and then proceed to fill it. There is no express authority given herein to appoint an auditor and none to treat the office as vacant, and such authority can not be held to be given by implication.—People (ex rel. Smith) v. Gunn, 30 Cal. App. 114, 157 Pac. 619.

2. It is easily conceivable that under the powers here given, if the supervisors can lawfully separate the duties of county auditor and county recorder and then declare the office of auditor vacant and proceed to fill it, they might make any office of their selection appointive at least temporarily, by vacating that office or separating its duties and thus remove the incumbent selected by the people. We will not so construe the statute as to allow either the judgment or the temptation of the supervisors to be so far gratified as to allow them to declare a vacancy and fill it by appointment under the guise of subserving the public interest.-People (ex rel. Smith) v. Gunn, 30 Cal. App. 114, 157 Pac. 619.

§ 4024.

1. Construction. This section might be construed as applicable only to deputies or assistants appointed in excess of those specifically provided for by law. In such an event it would not apply to assistant probation officers.-Anderson v. Lewis, 29 Cal. App. 24, 154 Pac. 287.

2. Where the board of supervisors has failed or declined to exercise a right to legislate as to the manner of appointment of subordinate officers the general laws of the state touching such matters should govern.-Anderson v. Lewis, 29 Cal. App. 24, 154 Pac. 287.

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