The motion to strike out the amended complaint was properly denied. A similar question was before us in Mahlstadt v. Blanc, 34 Cal. 577, and we think that case decisive that the ruling was correct. The proceeding in respect to the defendant’s answer was somewhat anomalous. The Court first sustained a demurrer to it, and afterwards struck out the answer. There can be only one theory on which the Court proceeded in dealing thus summarily with the answer, to wit: that this being a suit for taxes, the statute prescribes what the answer must be, and prohibits any other. The tax in this case was levied for school purposes, under section ninety-eight of the Act entitled “An Act to provide for a system of Common Schools,” approved March 24th, 1866. (Stats. 1865-6, p. 383.) This section, after authorizing the Trustees of the School District to levy a tax in certain cases, and prescribing the mode of doing it, after the question shall *378have heen submitted to the qualified electors of the-district, provides that said tax, “if not paid within the time limited in the next succeeding section for its payment, shall be recovered by suit, in the same manner and with the same costs as delinquent State and county taxes.” The next section provides that after the taxes shall have become delinquent, “the Trustees shall deposit said roll with the District Attorney, who shall proceed to collect the delinquent taxes in the manner prescribed by law for other delinquent tax.”
The statute then in force for the collection of delinquent State and county taxes provides that in suits brought for their collection the defendant shall be permitted to answer only: First, that the taxes were paid before suit; second, that they have been paid, with the costs, since suit brought, or that the property was exempt from taxation; third, denying all interest in the property at the date of the assessment; fourth, that the land is situate in another county, and the tax has been paid; fifth, fraud in the assessment or fraud in failing to comply with the provisions of the Revenue Act, by which fraud the party or property assessed has sufferd injury. (Stats. 1863, p. 712.)
The answer in this case not only denied that an election was held for the purpose of submitting to the electors the question of the tax, but also denied almost every other material allegation of the complaint. It then alleges 'that the Trustees fraudulently neglected to comply with the provisions of the statute authorizing the levying of the school tax, and fraudulently levied or pretended to levy a tax for an amount beyond that which they were authorized by law to levy; and that at said pretended election more than twenty illegal votes were received, without which there was a majority against levying the tax; and that the Trustees and Judges of Flection fraudulently neglected and refused to prepare a poll list, as required by law to be kept, for reference at said election. If it be conceded, for the purposes of this case, that the statute of 1863 above quoted was applicable and of controlling force in respect to the answer, we *379cannot perceive on what ground it can he maintained that it was not a valid defense to aver that the Trustees fraudulently-levied a tax for an amount exceeding their jurisdiction. Fraud in the assessment is one of the defenses which the statute expressly authorizes, and it would outrage every principle of justice to deny to the property holder, when sued for taxes, the right to show on the trial that they were fraudulently levied for an amount in excess of the sum authorized by law. If he is debarred from such a defense, the result would be that the most exorbitant taxes might be fraudulently exacted without the authority of law, and the taxpayer would be without remedy. We can attribute no such flagrant injustice as this to the Legislature, and if the statute expressly prohibited such a defense, we should doubt the power of the Legislature to enact such a law. The Court erred in sustaining the demurrer to and striking out the answer.
Judgment reversed and cause remanded for a new trial, and the remittitur ordered to issue forthwith.