Cavanagh

The plaintiffs commenced an action against the defendants to recover a judgment for money. Although the plaintiffs’ complaint is out of the ordinary, it may be said to be a complaint as for money had and received. The plaintiffs had judgment in the trial court and the defendants have appealed, bringing up papers which they claim to be a judgment-roll and a bill of exceptions. No motion to dismiss has been made, neither has a suggestion of the diminution of the record been made, and we therefore treat the record as sufficient.

[1] It was the theory of the plaintiffs in the trial court that they were called upon to pay, and that they did pay, without authority of law, a penalty of fifty per cent to redeem from a sale had in a street opening proceeding. The appellants claim the right to collect the penalty by reason of some language contained in section 16 of that act (Stats. 1889, p. 70) read in connection with section 3779 of the Political Code as that statute was formerly worded. The part of section 16 referred to reads as follows: “All provisions of the law in reference to the sale and redemption of property for delinquent state and county taxes in force at any given time, shall…

I dissent from the order denying a transfer, on the ground that the fifty per cent penalty provided by section 3779 of the Political Code is still applicable to sales for delinquent assessments for the opening of streets under the Street Opening Act of 1889 (Stats. 1889, p. 70). Section 16 of that act provides for the sale of the assessed property in the same manner as is or may be provided for the collection of state and county taxes. It is also provided: “All property sold shall be subject to redemption in the same time and manner as in sales for delinquent state and county taxes; and the superintendent of streets may collect for each certificate fifty cents, and for each deed one dollar. All provisions of the law, in reference to the sale and redemption of property for de linquent state and county taxes in force at any given time, shall also then, so far as the same are not in conflict with the provisions of this act, be applicable to the sale and redemption of property for delinquent assessments hereunder, including the issuance of certificates and execution of deeds.”

Section 3779 of the Political Code as it existed at the time of the enactment of the Street Opening Act,…