BANK OF MENDOCINO v. CHALFANT, 51 Cal. 471

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.