Davis v. City & County of San Francisco

Opinion — McFarland

McFarland, J.

A general demurrer to the complaint was sustained, and plaintiff having declined to amend, judgment was rendered for defendant. Plaintiff appeals from the judgment.

The purpose of the action is to recover of the city and county of San Francisco, under the provisions of section 3819 of the Political Code, certain alleged taxes averred to have been paid by appellant under protest. But the alleged taxes were, in fact, founded upon special assessments for a specific purpose under an act of the legislature approved March 23,1876 (Stats. 1875-76, p. 433), generally known as the “Dupont Street Act,” to which the said section 3819 of the Political Code does not apply, and for which no action can be maintained against said city and county. This was expressly decided by this court in Easterbrook v. San Francisco, 44 Pac. Rep. 800, and upon the authority of that case the judgment in the case at bar must be affirmed. (See, also, Elberg v. San Luis Obispo Co., 112 Cal. 316; Pacific Mut. L. Ins. Co. v. San Diego, 112 Cal. 314.)

It is proper to state that Easterbroolc v. San Francisco, supra, had not been decided when this appeal was taken, or when the briefs in this case were filed.

The judgment is affirmed.

Henshaw, J., and Temple, J., concurred.