ISLAIS CO LIMITED v. MATHESON (1935)

In this proceeding in mandamus the petitioner seeks to compel the respondent to accept a certain sum of money in full payment of an assessment levied by the Islais creek reclamation district for reclamation purposes. The assessment was levied against tract No. 282, which is owned by the petitioner and is particularly itemized in the notice of sale for delinquent assessment as follows: ‘Tract No. 282, The Islais Co., Ltd., Installment $1,362.38; Interest $9.84; Penalty, $275.44; Total, $1,652.66.’

In arriving at the amount for which this property was sold, the computations were in accordance with the requirements of section 3480 of the Political Code, as amended in 1927 (St. 1927, p. 1449, § 2), and in effect at the time the bonds to represent the assessment were issued and sold. The applicability of the amendment of 1927, in prescribing the duties of the respondent in the collection of penalties and interest on account of delinquent assessment calls, is determined in Islais Company, Ltd., v. Matheson (Cal. Sup.) 45 P.(2d) 326, this day filed. It was there held that the 1927 amendments governed the proceeding and that the amendments of 1931 and 1933 (St. 1931, p. 762, § 6; St. 1933, p. 1219, § 4) were inapplicable. It appears in the present proceeding that the petitioner tendered to the respondent as payment in full the installment of the assessment called upon said tract No. 282, and a penalty of 20 per cent. thereon, together with interest on said installment for a period of sixty days after the date of delinquency. The respondent refused to accept the sum tendered as payment in full, contending that the penalty computed on the unpaid installment alone was insufficient, and that the penalty of 20 per cent. should be computed on the amount of the installment plus interest thereon at the rate of 7 per cent. per annum to the date of sale. The question now presented is as to the sufficiency of the tender.

The law under which the assessments were levied and the bonds issued provided that when such bonds have been authorized to be issued on the assessments ‘all unpaid assessments shall bear interest at the rate of seven per cent per annum from the date of the bonds originally issued thereon until such bonds' have been fully paid and discharged, and ‘the interest due at any time on said unpaid assessments may be called without calling any installment of the said assessment. The word installment as used in this section shall be construed as applying to interest as well as the principal as the case may be.’ The statute then provides that at least ninety days before any interest date of the bonds the county treasurer shall estimate the amount of money necessary to pay the interest and principal maturing on such interest date and shall publish a notice substantially in the following form: ‘Notice is hereby given that an installment of assessment (describing it) of (amount or proportion thereof including interest thereon or only for interest) is payable within thirty days from (date) by all assessed landowners of said district in the county of (name of county) to the treasurer of said county. All or any part of said installment or interest which shall remain unpaid on the (day fixed) will be delinquent, together with accrued interest thereon, with twenty per cent of such installment and interest added as penalty.’ The section then provides that ‘if any part of such installment or any interest thereon shall remain unpaid at the expiration of thirty days from the date of said notice, it shall become delinquent and twenty per cent of the unpaid amount of said installment and interest shall be added thereto and collected by said treasurer.’ The statutory notice of sale was also made to provide that upon delinquency in payment the property would be sold for ‘the amount of the installment delinquent on such parcel, the amount of interest thereon reckoned to the day of sale, the amount of said twenty per cent penalty thereon. * * *’

We find little necessity for resorting to construction in arriving at the conclusion that it was the duty of the respondent to add the accrued interest to the amount of the delinquent principal in computing the 20 per cent. penalty. The foregoing pertinent quotations from the statute plainly contemplate that when the installment of principal or of interest or of both principal and interest are unpaid and delinquent, the stated penalty shall be added. When both are unpaid and delinquent, the penalty should be computed on both. The respondent conceived this to be his duty under the statute and the regularity of the proceedings carried forward on that theory is not questioned.

The peremptory writ is denied.

SHENK, Justice.

We concur: WASTE, C. J.; THOMPSON, J.; CURTIS, J.