Banbury

When this case was decided in Department the following opinion was rendered by Mr. Justice Harrison: “In June, 1892, the plaintiff, as the owner and successor in interest of sixty-seven lots of land in McPherson’s addition to the town of McPherson, formerly in the county of Los Angeles, but now in the county of Orange, sought to redeem them from a sale for delinquent taxes made to the state of California March 12, 1889, and for that purpose tendered to the defendant, Banbury, as treasurer of the county of Los Angeles, the sum of two hundred and twenty-five dollars and sixty cents. It is conceded that this amount of money was sufficient to effect the redemption, unless the sum of three dollars for each lot, amounting to two hundred and one dollars, for giving the notice of an intention to apply for a deed and the affidavit therefor, fixed as a fee for giving such notice by section 3785 of the Political Code,should also have been tendered. The county auditor, in his estimate of the amount to be paid for redemption, included this item in the certificates issued by him under the provision of section 3817 of the Political Code, and the treasurer refused to accept *131 the amount…

I dissent.

Further consideration of this case on rehearing has satisfied me that the conclusion reached in Department, and now adhered to, in the main opinion, is wrong as involving a too narrow construction of the statute. While it is true that no specific provision of the statute gives to the controller or attorney general the power to serve the notice required by section 3785 of the Political Code, I think that such power, as to the controller at least, fairly and necessarily arises by implication, when the several sections of the code bearing upon the subject are construed together.

*136 In the first place, the code expressly provides for the state becoming the purchaser at delinquent tax sales (Pol. Code, sec. 3773); and there are provisions expressly contemplating the making of a deed to the state in any instance where it becomes such purchaser.. (Pol. Code, sec. 3817.) At the same time the state is not exempted from the provisions of sections 3785 requiring the purchaser, or some one authorized in his behalf, to give notice of his application for a deed, since it is therein provided that “ no charge must be made by the collector for the making of any such deed, where the…