[No. 4875.]
BANK OF MENDOCINO v. CHALFANT.
Fboebbtx hot Subject to Taxation. —Neither promissory notes, solvent debts, nor mortgages, are subjects of taxation; and if assessed along with other property and the tax-collector can separate the legal from the illegal portion of the tax, and the legal portion is tendered him and he refuses to receive it, and the whole tax is then paid under protest and to prevent a sale of the property, the illegal portion may be recovered back.
Appeal from the District Court, Seventh Judicial District, County of Mendocino.
Action commenced April 15, 1874, against the tax-collector to recover a tax paid under-a protest, and to prevent a sale of the property.
The complaint alleged that the plaintiff was a banking corporation, and that the assessor of Mendocino County for the fiscal year commencing on the first day of April, 1872, assessed “the property of this plaintiff as follows:
“ Beal Estate valued at..................... $ 100.00
“Improvements thereon................ ... 400.00
“Money on hand.......................... 7,878.00
“ Solvent Debts, Promissory Notes and Mortgages ............................... 29,338.00
“ Making in the aggregate the sum of.. $37,766.00”
That the State tax thereon was fifty cents on the $100, the county tax was $1.12 on the $100, and the school tax seventeen cents on the $100, making a total tax of $676.01. That the tax-collector demanded the total • tax, and the plaintiff offered to pay and tendered to him the tax on the real estate, improvements, and money, but the defendant refused to receive it, on the alleged ground that he could not separate the amount alleged to be illegal from the rest of the tax. That thereupon the plaintiff, under protest, and to prevent a sale of its property, paid the whole tax and five per cent, thereon and $1.00 printer’s fees. Judgment was asked for $553. The defendant demurred to the *472complaint, and. the court sustained the demurrer and gave final judgment for the defendant. The plaintiff appealed.
M. McGarvey, for the Appellant.
T. L. Carothers, for the Respondent.
By the Court, Niles, J.:
Ho points have been filed by the respondents, and we are not informed upon what grounds he relies to sustain the ruling of the court upon his demurrer. The complaint contains an extract from the assessment-roll of the county, from which it appears that there was listed to the plaintiff— among other items—“solvent debts, promissory notes, and mortgages. This item was stated separately from the other and undisputed items of the assessment, and its valuation was separately given. It is now beyond question that solvent debts, notes and mortgages are not the subjects of taxation, and that the assessment was pro tanto illegal and void. (Ante p. 243.)
It is further alleged that the plaintiff tendered to the collector the amount of taxes upon the parcels of property admitted to have been legally listed, and that acceptance was refused by him upon the ground that he had no means of separating the illegal from the legal portion of the tax. But evidently this separation could have been accomplished by a very simple mathematical computation. The complaint states the case of an illegal tax, paid under protest, for the recovery of which the plaintiff undoubtedly has his action.
Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer to the complaint.
Heither Mr. Chief Justice Wallace nor Mr. Justice Rhodes expressed an opinion.