(119 Cal. 509)

KINGS COUNTY v. TULARE COUNTY.

(Sac. 256.)

(Supreme Court of California.

Jan. 4, 1898.) SWAMP AND OVERFLOWED LANDS-SALES-CUSTODY AND OWNERSHIP OF FUND-STATUTES-CONSTRUCTION.

1. St. 1868, p. 50, entitled "An act to provide for the management and sale of the lands belonging to the state," devolved upon the register the duty to keep distinct accounts and records in relation to each class of lands to which the state is or may be entitled. It required certificates of location of all state lands to be presented to the county treasurer, and made it his duty to receive the amount paid, and required this certificate to be presented to the county auditor, who was required to charge the amount paid to the county treasurer. It required the county treasurer to report monthly to the state register all moneys received, names of purchasers, etc., and at the end of each quarter to report to the state controller the amount received from each class of lands. This report was to be sent to the register by the controller, and, if reported correct by the register, the controller was to settle with the county treasurer: "provided that the county treasurer shall retain in his own hands all moneys arising from the sale of swamp and overflowed land, and shall place the same to the credit of a fund to be known as the 'Swamp-Land Fund' of the county, and the same shall be subject to the orders of the board of supervisors except as may be hereinafter provided." It also provided for the transfer of the fund then in the state treasury to the several counties, and the county auditor and treasurer were directed, "under direction of the board of supervisors, to place said assets on their books to the credit of the proper swamp land district fund." 1873-74, p. 770, entitled "An act to provide for the proper distribution in the several county treasuries of funds existing from the sale of swamp lands," directed the supervisors, on application, to "direct the auditor and treasurer to set apart from the swamp-land fund, in the county treasury, all the money which has been or may hereafter be received in payment of principal and interest in such lands, as a fund to the credit of such district, except such money as may have been previously expended for the benefit of land within the district"; and provided that the money in the district fund should "be paid out only for the purpose of reclaiming said land, or to the owners of such land after reclamation." St. 1891, p. 243, provided for the payment of all moneys then in the state treasury to the credit of swamp-land district funds to the treasuries of the several counties, and for the control of the same by the auditor and treasurer of the counties, and prescribed the duties of the controller and treasurer in relation thereto. Held, that the state did not by any of said acts part with the title to its swamp and overflowed lands, or the fund arising from sales thereof to the counties of the state.

St.

2. Section 15 of the act creating Kings county out of Tulare county authorized it to collect unpaid taxes assessed on lands within its boundaries, and section 16 authorized it to receive the proportion of the school fund to which it was entitled, and also its share of the road fund. St. 1893, p. 235, directed a transfer of all moneys standing to the credit of any road or school district, the territory comprising which has been segregated from an old county and included in a new county, and provided that a compliance with the act should be a full settlement of all demands which the new county had against the old county. Held, that said acts did not transfer or authorize the transfer of any portion of the "swamp and overflowed land fund" from Tulare county to Kings county.

Commissioners' decision. Department 2. Appeal from superior court, Fresno county; Stanton L. Carter, Judge.

Action by the county of Kings against the county of Tulare to recover the proceeds of certain swamp and overflowed lands. A demurrer to the amended complaint was sustained, and plaintiff appealed. Affirmed.

M. L. Short and H. L. Smith, for appellant. Lamberson & Middlecoff, F. B. Howard, and Power & Alford, for respondent.

CHIPMAN, C. This action was brought by plaintiff to recover $104,581.72, the proceeds of certain swamp and overflowed and lake lands. A demurrer to the amended complaint was sustained, and, plaintiff declining to amend, judgment passed for defendant, from which this appeal was taken. Briefly summarized, the amended complaint sets forth: That plaintiff county was duly organized on May 29, 1893, and embraced certain territory theretofore within the boundaries of defendant county; that before the new county was formed certain swamp, overflowed, and lake lands within its boundaries were sold to sundry persons pursuant to laws for the sale thereof within this state, and that the purchase price has been paid to the county treasurer of Tulare county, and that no part of the same has since been paid to Kings county, or to any person for its use or benefit; that upon its organization Kings county "became invested with the power to receive into its custody and corporate keeping all the swamp, overflowed, and lake lands in its limits which were not under the control and management of private ownership, and also became invested on said 29th day of May, 1893, with full power and authority to take, hold, and keep all such sums of money as had been paid into the treasury of said Tulare county for any and all lands belonging to the state of California, as well also as to take and receive from said county of Tulare all moneys of every character and description as has ever been paid in any manner into the said treasury of said Tulare county for any and all swamp and overflowed state lands of any and every kind, * except such

* * *

portions of said money for said lands as can be shown by said Tulare county to have been paid out in the regular forms and manner prescribed by the laws of this state to parties legally entitled to recover the same"; that the balance, after making all legal deductions, now held by said Tu lare county, belonging to said Kings coun ty, amounts to the sum aforesaid; that the claim was duly presented to and filed with the clerk of the board of supervisors of said Tulare county on May 13, 1895, and payment was refused. The demurrer is upon the grounds (1) that the complaint does not state facts sufficient to constitute a cause of action; and (2) that the cause of action is

barred by section 41 of the county government act, approved March 24, 1893 (St. 1893, p. 363), for the reason that the claim mentioned in the complaint was not filed with the clerk of the board of supervisors of Tulare county within a year after the last item of said claim accrued, and because the whole of said claim, and each and every item thereof, accrued more than one year prior to its presentation. As, in our opinion, the complaint does not state facts sufficient to constitute a cause of action, it is not necessary to consider the other grounds of de

murrer.

It is contended by appellant that the swampland fund created by the purchase price of the swamp and overflowed lands of the state has been by legislative grant donated to the counties in which the lands sold were situated, in trust for the reclamation of such lands, and for the owners thereof; that the county in which the lands are situated is the trustee of this fund, and that the act creating Kings county removed the county of Tulare as trustee of the fund sued for; and, as the fund can only be used for the purposes of the trust by order of the board of supervisors of the county in which the lands are situated, the price of which created the fund, Kings county can maintain this action. Respondent contends that the money claimed by appellant belongs to the state, and not to either county; and, if it ever belonged to Tulare county, no law has ever been passed transferring any portion of it to Kings county. The swamp and overflowed lands of the state were granted to it by act of congress approved September 28, 1850, and by acts amendatory thereof. The title is in the state. The purpose of the grant was to enable the state to reclaim the lands by means of levees and drains. The act of congress has been construed by the supreme court of the United States to be a grant to the state of full power to dispose of the lands, and to make application of the proceeds so far as necessary to secure the object specified. No person except the United States can question the disposal made of these lands or their proceeds by the legislatures of the several states. American Emigrant Co. v. Adams Co., 100 U. S. 61; Mills Co. v. Burlington & M. R. Co., 107 U. S. 557, 2 Sup. Ct. 654; Hager v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663; U. S. v. Louisiana, 127 U. S. 182, 8 Sup. Ct. 1047. The control of swamp lands and the proceeds of their sale being in the state, no person and no county has any control over or interest in either the lands or their proceeds, except as the state has granted it. The state, by act of April 28, 1855 (St. 1855, p. 189), made provision for the sale of these lands at one dolllar per acre, the money to be paid to the county treasurers of the counties where the land was located, and to be transmitted to the state treasury by them. By section 1 of the act of April 21, 1858 (St. 1858, p. 198), the proceeds of these lands sold under that or any former act were to be paid

into the treasury of the state "as state revenues, and credited to the swamp-land fund, to be appropriated for the reclamation of said lands, as the legislature may direct." The purchaser was required by section 4 to pay to the county treasurer one dollar per acre for the lands purchased, and take duplicate receipts, and have them recorded in the office of the county auditor, who should send a copy to the state register. Section 5 of the act required the county treasurer to pay over to the state treasurer, at the same time and in the same manner as "other state revenues," all moneys received under the act, and send to the controller the names of all purchasers, number of survey, number of acres purchased, and amount of money "to be credited to the swamp-land fund." Certificates of purchase were to be issued by the state register. The act of March 28, 1868 (St. 1868, p. 507), is entitled "An act to provide for the management and sale of the lands belonging to the state." This is a very elaborate statute of 72 sections, and is divided into three distinct parts. It is practically the basis of our present state land system, and appears to have repealed all previous acts. The scheme of reclamation of swamp and overflowed salt marsh and tide lands, substantially as it exists to-day, was there developed. Most of its provisions relating to reclamation have found their way into the Political Code now in force. Upon the register was devolved the duty "to keep separate and distinct accounts and records in relation to each class of lands to which the state is or may be entitled." Section 23 of the act required all certificates of location of all state lands to be presented to the county treasurer, and it was made his duty, to receive the amount paid in full or in part, and this certificate was also required to be presented to the county auditor, who was required to charge the amount paid to the county treasurer. Sections 24 and 25 required the county treasurer to report monthly to the state register all moneys received, names of purchaser, etc., and at the end of each quarter to report to the state controller the amount received from each class of lands. This report was to be sent to the register by the controller, and, if reported correct by the register, the controller was to settle with the county treasurer: "provided that the county treasurer shall retain in his own hands all moneys arising from the sale of swamp and overflowed land, and shall place the same to the credit of a fund to be known as the 'Swamp-Land Fund' of the county, and the same shall be subject to the orders of the board of supervisors, except as may be hereinafter provided." Section 47 provided for the transfer of the fund then in the state treasury to the several counties, and the county auditor and treasurer were directed, "under direction of the board of supervisors, to place said assets on their books to the credit of the proper swamp-land district fund." By the provisions of this act, and of certain acts next to be noticed, appellant

claims that the state granted "the proceeds of the sales of these lands to the county in which they are situated, to hold in trust for the reclamation of the lands under the system provided by the state, or for the owner of the land if he reclaims it by his own labor and means."

One of the acts upon which appellant further relies is the act of March 28, 1874 (St. 1873-74, p. 770), entitled "An act to provide for the proper distribution, in the several county treasuries, of funds existing from the sale of swamp lands." The first section directs the board of supervisors, in counties where a swamp-land district may be organized, upon the application of a party interested, to "direct the auditor and treasurer to set apart from the swamp-land fund in the county treasury all the money which has been or may hereafter be received in payment of principal and interest in such lands, as a fund to the credit of such district, except such money as may have been previously expended for the benefit of land within the district." Section 2 of the act directs that the money in the district fund "shall be paid out only for the purpose of reclaiming said land, or to the owners of such land after reclamation, as now provided by law." The remaining portion of the act relates to certain deductions to be made for money expended before payment to the owner of any of this fund. The act of March 31, 1891 (St. 1891, p. 243), relied upon, is entitled "An act providing for the payment of all moneys in the state treasury, to the credit of swampland district funds, to the treasuries of the counties wherein the said swamp-land districts are situated, and to provide for the control of the same by the auditor and treasurer of said counties; and prescribing the duties of the controller and treasurer in relation thereto." The title of this act explains its purpose, which was to transfer funds then in the state treasury. Presumably, when this act was passed, some of this swamp-land money had found its way into the state treasury, and this act was to put it into the county treasuries. Previous law had done this, and why this act became necessary we are not advised; but it did not provide for an adjustment between counties of funds already in their treasuries, nor does it contain any words of grant or donation to the counties. The general law now governing the subject is to be found in the Political Code, tit. 8, c. 1, art. 2, which, with the several general laws, or parts of the same, as remain in force, forms the statute law on the subject.

It is clear from an examination of these various laws that the state has never parted with its title to swamp lands to the counties. The title under all laws passes directly to the purchaser from the state. The only question is as to the disposition made by the state of the proceeds of the sale. The uniform price for these lands has been one dol

lar per acre. The state has never undertaken to profit by the sale. The purpose of the grant to the state-to wit, the reclamation of the lands-seems to have been the governing principle of their disposition and management. Certain results of the grant of swamp and overflowed lands to the state, and of our legislation respecting those lands, seem clear enough, to wit: The grant was for the purpose of securing their reclamation. The state has never deviated from a consistent course of legislation to attain that purpose. The state has always retained the absolute control and ownership of the lands, and has itself given the evidences of title when sold to purchasers. The state, in the earlier legislation, required the proceeds of sale to be paid to state officials, and to be retained by them in their custody, although county officials were made use of as agencies, and, as in the sale of other state lands, to receive and transmit the moneys paid by purchasers. Later the moneys paid by purchasers, and the moneys derived from assessments levied for reclamation purposes, were paid to the county officials, and retained by them, to be placed in a fund called the "Swamp and Overflowed Land Fund." By the act which inaugurated this change it was also provided that all such moneys in the state treasury should be transferred to the several counties where swamp-land districts had been formed, to be placed in this same swamp-land fund. The state has ceased to be the immediate custodian of the fund, but there is nothing in any act that confers upon any county any property right in or to this fund, and there is nothing in any act from which it may be inferred that the state has relinquished its right of legislative control over it, or has renounced or transferred its trust. The scheme of reclamation provided by the legislature involved much detail, and made it necessary for the owners of the land to have frequent communication with the officials controlling the fund, and hence, both as matter of convenience to the landowner and to facilitate the purpose of the grant to the state, the fund was placed in the county treasuries. In a certain, but very limited, legal sense it was a trust, and the fund a trust fund, but not differing from other trusts that may be said to be imposed upon counties and county officials by legislative direction relating to other maters of local government and local administration. Under the code provisions the county treasurer must now, as he was under all laws required to do, forward monthly reports of all moneys received for sales of all state lands. At the end of each quarter he must report to the controller "the sum which has been received from each class of land." These reports must be examined, and certified to be correct, by the register, whereupon the county treasurer must make his settlement with the controller, and pay over all moneys, etc., except he "must retain all moneys arising

from the sale of swamp and overflowed lands, and place the same to the credit of a fund known as the 'Swamp-Land Fund' of the county." Pol. Code, §§ 3422-3426. Examination of section 3474 and the following sections will show that, while the reclamation is carried on immediately under supervision of the boards of supervisors, reports of the work must be made to the register, and it is through this officer credit is given to the purchaser for his payments made. The county official machinery and county officials, as agencies of the state, have been and are being used in carrying out the original purpose in the mind of congress. Edwards v. Estell, 48 Cal. 194. There is nowhere to be found in any of the various acts relating to these lands any legislative donation of this fund or grant, in trust or otherwise, as claimed by appellant. The state has done no more than to call to its aid, in administering the congressional grant, the various counties where the land is situated; and the state may alter or amend any of its laws relating to the subject, and may reclaim the custody of the fund not already disposed of under the law at its pleasure. Kimball v. Fund Com'rs, 45 Cal. 344. When Kings county was organized, the fund was in the custody of the proper officials of Tulare county, and the only debatable question here is, did the act creating Kings county transfer, or has any act authorized the transfer of, this fund to Kings county? Section 15 of the act creating Kings county authorized it to collect unpaid taxes assessed upon lands within its boundaries. Section 16 authorized it to receive, and Tulare county to pay over, the proportion of the school fund to which it was entitled, and also its share of the road fund. There was no provision for the transfer or payment to Kings county of any other fund, or part thereof. There is no mention made of the swamp-land fund, and nothing in the act to justify us in holding, as is claimed by appellant, that "the act removed Tulare county as trustee of the fund sued for." On March 23, 1893, the day following the Kings county act, an act was passed (St. 1893, p. 235) entitled "An act to transfer certain moneys from one county to another, when a new county has been formed and organized." By this act a transfer was directed of all moneys standing to the credit of any road or school district, "the territory comprising which has been segregated from such old county, and which is included in the boundaries of such new county." Section 4 of the act provided as follows: "A compliance with the provisions of this act shall be a full and complete settlement of all demands which the new county had against the old county or counties."

We have been unable to find any general law or special act, and none has been pointed out, giving express authority for transferring this fund. We do not think the authority can be derived from the general laws

relating to the fund. They do not seem to have contemplated the division of counties, and the possible shifting of reclamation districts, in whole or in part, from one county to another. It is true that the law as it now stands would seem to compel owners of swamp lands situated in Kings county to go to Tulare county to have the business of their reclamation districts settled and adjusted, while literally the law directs them to go to the officers of their own county, who are impotent to aid them. It may be that, to preserve the harmony of the system, this fund now in the custody of Tulare county, so far as it has been derived from lands situated within the present boundaries of Kings county, should be transferred to the latter county. To do this some adjustment of accounts between reclamation districts would be necessary because of the interlapping of present boundaries of districts so as to leave parts of the lands of a district in both counties. There is no allegation in the complaint that the lands claimed to be swamp and overflowed lands now situated in Kings county form one or more reclamation districts separate from any district existing in Tulare county. The inference to be drawn from the complaint is that the reclamation districts now existing embrace lands in both counties. We think the whole subject is one exclusively with the legislature, and is not one of judicial cognizance in the absence of express legislative authority given to the courts to take jurisdiction of it. We do not think the complaint presents the case of a trust about to fail for want of a trustee, as appellant claims; nor does there appear to be any ground for equitable interposition. The legislature is the appropriate and only source of relief. See Tulare Co. v. Kings Co., 117 Cal. 195, 49 Pac. 8, and cases there cited, for a discussion of the general principles governing the disposition of property upon the division of a county. We think that the demurrer was properly sustained, and therefore recommend that the judgment be affirmed.

We concur: BELCHER, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is af firmed.

(119 Cal. 518)

RODE et al. v. SIEBE, Assessor. (S. F. 139.) (Supreme Court of California. Jan. 4, 1898.) STATUTES-VALIDITY-SPECIAL LAWS-TAXATION

EQUALITY.

1. The validity of a law is not to be determined by the fact that its application to extreme cases, involving the assumption of gross misconduct of public officers, would result in great injustice.

2. The revenue law provides that taxes for each fiscal year beginning July 1st shall accrue

in the March preceding, and be a lien on real property; that, if one's real property is sufficient to secure payment of all his taxes, the latter will not be collectible until November following, but, if not sufficient for such purpose, his taxes shall be collectible when the assessment is made,-the amount in such case to be determined by the rate levied by the previous fiscal year, and, if greater or less than the levy for the current year subsequently made and equalized, the excess shall be refunded, or the deficiency paid. Held not inconsistent with Const. art. 13, § 1, providing for the taxation of all unexempt property in proportion to its value, to be ascertained as provided by law.

3. The revenue law making taxes unsecured by a lien on real property collectible when assessed, while secured taxes are not collectible until several months later, the classification being based upon intrinsic differences, requiring different regulations,-is not objectionable to Const. art. 4, § 25, prohibiting the passage of special laws for the assessment or collection of taxes.

Harrison and Van Fleet, JJ., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Petition by C. B. Rode and others against John D. Siebe, assessor, for an injunction. From a judgment for defendant, plaintiffs appeal. Affirmed.

Walter H. Levy, for appellants. Naphtaly, Freedenrich & Ackerman, W. F. Fitzgerald, Atty. Gen., and W. H. Anderson, Asst. Atty. Gen., for respondent.

BEATTY, C. J. The defendant is assessor of the city and county of San Francisco. The plaintiffs are residents of San Francisco, and in March, 1895, in response to defendant's demand, made a return showing that they were owners of personal property in said city and county subject to taxation for the ensuing fiscal year, but owned no real property. The defendant assessed their personal property, and on May 20, 1895, demanded payment of the tax, amounting, at the rate of the tax levy for the previous year, to $71.73, and threatened, in case of their refusal to pay, to seize and sell enough of said property to make the amount due. To restrain such threatened seizure and sale, this action was begun. The superior court denied the injunction, and plaintiffs appeal.

It is conceded that the proceedings of the assessor were sanctioned by the express provisions of the statute, but it is contended that a statute which authorizes the collection of taxes on personal property not secured by lien on real property, before equalization, before levy for the year, and before the beginning of the fiscal year to which they belong, is unconstitutional in those particulars, and to that extent unenforceable. The specific objection to the law is that it violates the constitutional requirement as to uniformity of all general laws, and especially of laws relating to taxation. It will not be necessary, in order to indicate the position of appellants, to cite the various sections of our revenue law to which reference

has been made in the argument. It is sufficient to say that under the constitution and laws of California the fiscal year begins on the 1st of July, and ends on the 30th of June. The taxes for each fiscal year accrue on the first Monday in March preceding its commencement, and become a lien from that date upon the real property of the respective taxpayers. Where the real property of a taxpayer is sufficient to secure the payment of all his taxes upon his personal property, as well as upon the realty itself, he is not required to pay the tax before the end of November, prior to which time the board of supervisors, first, and the state board of equalization, afterwards, equalize the assessments, and then establish the rates for state and county purposes, according to which the tax is to be levied. But where a taxpayer has no real property, or none sufficient to secure the payment of his taxes, the assessor is required to collect them at the time of making his assessment, and, in case of failure to pay, to sell sufficient of the property of the delinquent to make the amount of the tax, with costs. As this collection must be enforced before the meeting of either board of equalization, and before the rate for the ensuing year is ascertained and the levy made, it is provided that it shall be made according to the rate levied the previous year; and as this may be, and generally is, greater or less than the subsequent levy for the current year, provision is made for refunding to the taxpayer any excess in the collection, and for the payment by him of any deficiency. It is, of course, undeniable that the citizen who by the provisions of this law is compelled to pay his taxes six months sooner than others are required to pay on the same kind of property is under the disadvantage of being deprived of the use of his money for a longer period than other owners of personal property; and it is easy to put extreme cases, as counsel have done, in which real hardship would result. But it would be equally easy to imagine extreme cases in which honest taxpayers, whose taxes are perfectly secured by lien upon their real property, would suffer great injustice by the removal of personal property from the jurisdiction between the 1st of March, when taxes accrue, and the end of November, when secured taxes become delinquent. The validity of a law is not to be tested, however, by its application to extreme cases, involving the assumption of grossly-arbitrary violation of their duties by public officers. If every law were declared unconstitutional which by the application of such a test could be shown capable of working injustice, we should have very few laws left. As to the actual working of this particular law, we know that it has been in operation in this state, outside of San Francisco, for almost 40 years, and that its validity has never before been drawn in question. This could scarcely have happened if its opera