Penaat v. Terwilliger

TRAYNOR, J.

Defendant failed to pay the county taxes for 1934 upon a lot that she owned in San Mateo *866County. Plaintiff purchased the property at a tax sale on June 28, 1940, and subsequently brought this action to quiet her title thereto. The trial court held the tax sale void and entered judgment quieting defendant’s title to the property. From this judgment plaintiff appeals.

The trial court held that the publication of the delinquent tax list and of the notice of sale did not comply with sections 3766, 3767 and 3771a of the Political Code. The delinquent tax list was published on June 5, 12 and 19, 1935, in a separately folded section of the Burlingame Advance Star dealing exclusively with the delinquent tax list. The notice of sale was published on June 7, 14 and 21, 1940, in a separately folded section of the San Mateo Times, also devoted exclusively to the delinquent tax list except for a map of the world used as a filler on the last page.

Before 1921, section 3766 of the Political Code provided that publication of the delinquent tax list “must be made once a week for three successive weeks, in some newspaper, or supplement thereto, published in the county. ...” (Italics added.) This section was amended in 1921 to provide: “the publication must be made once a week for three successive weeks in some newspaper of general circulation published in the county. ...” (Italics added.) Before it was amended tax collectors and others might easily have supposed that the section authorized publication of the delinquent tax list in a supplement that was circulated separately from the newspaper because of the provision that the delinquent tax list could be published either in a newspaper “or” in a supplement to a newspaper. Such a construction, however, would probably have been erroneous in view of Tully v. Bauer, 52 Cal. 487, involving the antecedent of section 3766 in the Revenue Act of 1857, as amended in 1859 (Stats. 1859, pp. 343, 348). It was therein provided that the delinquent tax list should be published “by one insertion, one time per week, for three successive weeks, in some paper published in the City and County, or in a supplement to such paper.” The delinquent tax list was published in a supplement that was not circulated coextensively with the newspaper. The court held the publication invalid on the ground that it was the intent of the statute to authorize publication “in a supplement which was distributed for circulation generally with the newspaper.” In revising section 3766 in 1921, the Legislature may well have decided to elim*867inate the words “or in a supplement thereto,” rendered superfluous by the Tully case, to prevent any misinterpretation by those concerned with the publication of delinquent tax lists.

Before the 1921 amendment, section 3766 was also open to the construction that since the delinquent tax list had only to be published in “some newspaper” it was immaterial how restricted the circulation of the newspaper might be. By adding the words “of general circulation” the Legislature made it clear that the newspaper must be one of general circulation. (See In re Herman, 183 Cal. 153 [191 P. 934]; 19 Cal.Jur. 1072, 1074; Pol. Code, secs. 4460, 4462.)

As amended, the section simply requires publication of the delinquent tax list “in some newspaper of general circulation” without specifying that publication should or should not be in a supplement. This provision is like a multitude of other provisions for the publication of notices in newspapers. (See, for example, Code Civ. Proc., secs. 413, 1277; Prob. Code, secs. 261, 700; 7 Cal.Jur. 471; 10 Cal.Jur." 39, 40; 11 Cal.Jur. 246, 640.) For the convenience of the public and the publisher, newspapers are usually folded into two or more sections, each of which is an integral part of the newspaper. The question is not in what part of a newspaper the delinquent tax list is published, but whether it is published in a newspaper of general circulation as an integral part thereof and distributed as such to subscribers. Thus in Lent v. Tillson, 72 Cal. 404, 430 [14 P. 71], 140 U.S. 316, 333 [11 S.Ct. 825, 35 L.Ed. 419], a special improvement bond act provided for the publication of prescribed notices in “two of the daily papers printed in the City of San Francisco.” (Stats. 1875-1876, pp. 433, 434.) The notices were published on a third sheet, designated as a supplement, of a two-sheet newspaper. The court held that the notice was published in compliance with the statute, for the supplement, even though designated as such, was “part and parcel of the newspaper itself” and was distributed coextensively with the rest of the paper. (See, also, Heberling v. Moudy, 247 Mo. 535 [154 S.W. 65]; Star Co. v. Colver Pub. House, 141 F. 129; 19 Cal.Jur. 1068; 46 C.J. 19; 50 C.J. 541.)

The publication of a delinquent tax list in a separate section, uncluttered by other reading matter, makes it readily available to those interested. It would be highly arbitrary to require that other reading matter be interlarded with sueh *868lists in disregard of the exigencies incident to the editing of a newspaper as a whole. Often the delinquent tax lists run to such lengths that it would not be feasible to punctuate the successive pages with fragments of news columns or advertising matter. The requirement of publication in a newspaper of general circulation can hardly be construed as necessitating such a departure from good editorial practice.

In Clayton v. Schultz, 22 Cal.App.2d 72 [70 P.2d 512], on which defendant relies, the delinquent tax list was “separately bound and covered and was not in anywise connected with the main part of the paper.” (22 Cal.App.2d 74.) In the present case, however, the newspaper in each instance was folded in two sections, the general news and advertising being in the first section and the delinquent tax list in the second. The two sections were folded together, and together constituted the complete edition of the newspaper, distributed to all subscribers on the dates of publication. Any suggestion in Clayton v. Schultz, supra, that a section of a newspaper is dissociated from the whole by being separately folded or by dealing exclusively with one subject is disapproved.

Since there is no question that the publications were newspapers of general circulation, and since the sections in which the delinquent tax lists appeared were integral parts of the newspapers for the days in question, such lists were published in compliance with the statutory requirements.

Defendant contends that the sale of the property on June 28, 1940, was void on the ground that a notice of the sale was not mailed pursuant to section 3771a of the Political Code providing that preliminary to any sale at public auction “the tax collector shall, within five days after the first publication of said delinquent list, mail a copy of said list or publication, postage thereon -prepaid and registered, to the party to whom the land was last assessed next before such sale, at his last known address, said notice to be mailed at least twenty-one days before the date of sale. ...” (Italics added.) The parties to whom the land was last assessed next before the sale on June 28, 1940, on the 1940 assessment roll, were Clara Terwilliger and R. A. Jenkins. The first appearance of these names as owners of the property was on the 1935 assessment roll, but neither on this roll nor on any subsequent one were these names accompanied by addresses. It is well- settled that the tax collector must look *869at the assessment roll to see “whether the address of the party appears thereon. If it does,, he must mail a notice. If it does not, no mailing of notice is required.” (Healton v. Morrison, 162 Cal. 668, 673 [124 P. 240]; Kehlet v. Bergman, 162 Cal. 217, 218 [121 P. 918]; Jacoby v. Wolff, 198 Cal. 667, 681 [247 P. 195]; Crouch v. Shafer, 177 Cal. 154 [169 P. 1019].) Defendant calls attention to the assessment roll for 1934, which shows the owners as Everett H. and Pearl B. Davis, care of Cypress Lawn Cemetery, Colma, California, but these were not the parties to whom the land was last assessed next before the sale in 1940 and were therefore not the parties to whom the notice had to be mailed.

The judgment is reversed.

Gibson, C. J., Curtis, J., Edmonds, J., and Schauer, J., concurred.