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8 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.

Construction.—The taking of a federal census does not have the effect of automatically changing the compensation of the county officers according to the population 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.

8 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.

Sufficiency 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.

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.

8 4018.

§ 4024.

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.

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.

$ 4041.

POWERS OF SUPERVISORS. 1. Construction Subdivision 11. 2. - Subdivision 12. 3. Subdivision 16. 4. Subdivision 19,

1. Construction Subdivision 11.-In case of a charge for compensation incurred under subdivision 2 of section 4307 this subdivision requires that such shall be settled and allowed by the board of supervisors. San Francisco, however, is governed by its charter and not by the provisions of this code.-Rocca v. Boyle, 166 Cal. 94, Ann. Cas. 1915B 857, 135 Pac. 34.

2. -Subdivision 12.-It is, no doubt, the declared policy of the law to confide to the board of supervisors the general supervision and control of the financial affairs of the county.-White V. Matthews, 29 Cal. App. 634, 156 Pac. 372.

3. -Subdivision 16.-The effect of this section seems to be that the county shall be a party to actions and proceedings wherein the .county "is concerned" (the quoted words being taken from the provisions of the Los Angeles charter).-Keith v. Hammel, 29 Cal. App. 131, 154 Pac. 871.

-Subdivision 19.-The board of supervisors can not create a vacancy and then proceed to fill it.—People (ex rel. Smith) v. Gunn, 30 Cal. App. 114, 157 Pac. 619.

8 4052c. ERECTION OF HISTORIC MONUMENTS. The boards of supervisors in the several counties shall have, and they are hereby given, the power to appropriate money from the general fund of the county to erect monuments or to place tablets to commemorate historic spots or places within the limits of the county.

as

to

History: Enactment approved May 31, 1917, Stats. and Amdts. 1917,

p. 1366. In effect July 30, 1917. 8 4058.

claim composed of a number of items which 1. Construction. The requirement that aggregate more than three hundred dollars the petitioners give their place of residence is not subject to general demurrer, or atby street and number is undoubtedly for tackable for want of jurisdiction, on the the convenience and aid of the clerk in find- ground that all but a small part of the ing the names in the great register, and a claim is barred by the limitation provided failure to comply with it is a mere irregu- by section 4075 of the Political Code. larity which could not result in prejudice.- Welch v. Santa Cruz County, 30 Cal. App. Osborn v. Merced County, 27 Cal. App. 85, 123, 156 Pac. 1003. 148 Pac. 970.

3. Revival of stale claim.-A claim can Referendum - What subject to. A not be allowed by the supervisors unless county ordinance providing for the discon- presented and filled with the clerk within tinuance of one of the judicial townships of a year after the last item of the account the county and the re-establishment of the or claim accrued; where certain items of a boundaries of another township so

claim accrued more than a year prior to include the one abolished is a matter legis- the presentation and filing of the account lative in character and subject to referen- they are barred, and the fact that one of dum.-Osborn v. Merced County, 27 Cal. the items accrued within the year does not App. 85, 148 Pac, 970.

revive the stale items.-Welch V. Santa

Cruz County, 30 Cal. App. 123, 156 Pac. 1003. 8 4075. 1. Claims against county, when barred.

4091. A claim against a county for money paid 1. An order directing the auditor to draw out and expended by its fish and game war- his warrant in payment of the services of den in the discharge of his official duties an expert employed by the grand jury to for the twenty months from and including examine the books of the officers of the June, 1909, to December, 1910, and for the county can not be made by the superior month of April, 1912, filed with the board of court under section 928 of the Penal Code, supervisors April 27, 1912, is barred, except but such claim must be submitted to the as to those items of the claim which ac- board of supervisors like other claims.crued in April, 1912, by the provisions of White V. Matthews, 29 Cal. App. 634, 156 section 1075 of the Political Code prohibit- Pac. 372. ing boards of supervisors from allowing 2. As to whether the certificate from the claims which are not presented and filed civil service commission certifying to the within one year after the last item thereof

correctness of the demand for a salary was accrues.-Welch v. Santa Cruz County, 30 a necessary prerequisite to the issuing of a Cal. App. 123, 156 Pac. 1003.

warrant to an officer whose salary is fixed 2. A complaint in an action brought in by law is raised but not decided.-Anderson the superior court against a county on a v. Lewis, 29 Cal. App. 24, 154 Pac. 287.

CHAPTER V.

EXECUTIVE DEPARTMENT.

ARTICLE III.

THE TREASURER.

$ 4115. Money received from coroner.

§ 4115. MONEY RECEIVED FROM CORONER. The treasurer[,] upon receiving from the coroner[,] or justice of the peace acting as coroner(,) money found on a dead body must place it to the credit of the county. All said moneys must be kept in a separate fund.

History: Original section, relating to county officers and deputies, enacted March 12, 1872; amended April 27, 1880, Code Amdts. 1880 (Pol. C. pt.), p. 101, act held unconstitutional, see history ante, g 4000; repealed and present section, which was a codification of § 81 County Government Act (Henning's General Laws, 1st ed., p. 215), March 18, 1907, Stats. and Amdts. 1907, p. 390, Kerr's Stats. and Amdts. 1906-7, p. 224; amended May 5, 1917, Stats, and Amdts. 1917, p. 259. In effect

July 27, 1917. § 4135a.

properly indexed, would be competent evi1. Construction.-"The effect of this sec- dence of the contents of the instrument."tion would probably be that the record of Central Pac. R. Co. v. Droge, 171 Cal. 32, 151 an instrument in the wrong book, if it is Pac. 663.

ARTICLE VIII.

THE CORONER.

8 4146. Duties of coroner as to property of deceased persons.
$ 4146a. Sale of property at public auction [new].
8 4147a. Powers of deputy coroners [new].

§ 4146. DUTIES OF CORONER AS TO PROPERTY OF DECEASED PERSONS. The coroner must within thirty days after an inquest upon a dead body deliver to the legal representatives of the deceased any money or other property found upon the body. If within the said thirty days no such legal representative makes a demand upon the coroner for the said money or property found upon the body of the decedent, then, upon the expiration of the said thirty days, the coroner must deliver to the treasurer any money found upon the body of the deceased, together with the proceeds of the sale of the property found upon the body of the decedent, which sale shall be held in accordance with the provisions of section four thousand one hundred forty-six a of this code, and at the same time an affidavit with the treasurer show. ing:

1. The amount of money belonging to the estate of the deceased person which has come into his possession since his last statement.

2. The disposition made of such property.

If the coroner or any justice of the peace acting as coroner fails to deliver to the treasurer within forty days after any inquest upon a dead body all money, or proceeds from the sale of property found upon such body, unless claimed in the meantime by the public administrator or other legal representative of the decedent as required by this section, the district attorney must proceed against the coroner or justice of the peace acting as coroner to recover the same by civil action in the name of the county.

History: Original section, relating to the filling of vacancies in county offices, enacted March 12, 1872, founded upon $ 5 Act March 27, 1850 (Stats. 1850, p. 115), and § 7 Act April 18, 1850 (Stats. 1850, p.

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