>/0a A A — 0^ ^ - o = en = O = d ~ — 1 = X 5 m = 33 = 33 S rrt = CD 5 6 2 3 7 2 3 ; O Savings and Loan Soci'^tv v, ^ustiii, and Bartlett, Toe, et al , v. Same. On Rehearinp;. Oral Argument By Creed Raymond IN THE SUPREME COURT OF THE STATE OF CALIFOENIA. SAVINGS and LOAN SOCIETY v. AUSTIN, AND BARTLETT, DOE, Et Al. v. SAME. On Rehearing. OF COUNSEL FOR THE STATE. SACRAMENTO: T. A, SPRINGER, STATE PRINTER. 1873. ""-:: •; IN THK n\\\m\t ^mtl 4 \\\t ^Mt 4 4^Ii}>titict. SAVmGS A]^D LOAIT SOCIETY, V. AUSTm, AND V A P 1 .' ■ BARTLETT, DOE, et al, f ^^ ivellCaiing. V. SAME. ORAL ARGUMENT OF CREED HAYMOND, ESQ., OP COUNSEL FOR THE STATE. May it Please the Court: These are actions commenced by the respective i^laintiffs against the Tax Collector of the City and County of San Francisco, to restrain the sale of property for taxes assessed in the last fiscal year. Upon ex parte applications, temporary restraining orders were granted. Subsequently, defendant moved to set aside the orders, the motions were denied, and from the orders then made these appeals were taken. It is unnecessary to recapitulate the facts of the case, for they are fresh in the minds of the Court and of counsel. [ 4 ] The object of the actions, and of the various others dei^end- ing upon the decision in these, was to test the validity of the revenue laws embodied in the Political Code, to deter- mine whether, if valid, they applied to the City and County of San Francisco; and to dispose of the vexed question presented by taxation of solvent debts. After an elabox'ate argument on most of the questions involved, the Court filed an opinion de- termining: 1. That the provisions of the Political Code, creating a State Board of Equalization, and defining its powers, are constitu- tional; 2. That the provisions of the Political Code in relation to revenue, apply to the City and County of San Francisco; 3. That solvent debts are not subject to taxation; and 4. That a Court of equity will not interfere by injunction to restrain the sale of property for taxes. Owing to the importance of the case, the magnitude of the interests involved, a rehearing has been granted by the Court, and a reargument ordered ujDon all the questions presented by the record. The main features of the revenue system established by the Code are: A determination by the Legislature of the amount of money annually to be raised; an assessment of proj^erty at its full cash value by Assessors elected by the people of the county or district in which the property to be taxed is situated; the equalization of values, as between individuals, by a County Board, consisting of persons not elected by the peo- jile of the district in which the property is situated; the equalization of values, as between the counties, by a State Board not elected by the people; the fixing of a rate by the State Board of Equalization sufiicient to raise the amount designated by the Legislature; and the collection of that rate by Collectors elected by the people of the district in which the property is situated. The provisions of the Constitution are, "That taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to Its value — to be ascer- tained as directed by law. But Assessors and Collectors of town, ^: [ 5 ] county, and State taxes, shall be elected by the qualified elect- ors of the district, county, or town in which the property , taxed for State, count}', or town purjioses is situated." (Art. " XI, Sec. 13.) The provisions of the Code and of the Constitution, taken together, we claim constitute a system harmonious in all its parts, tending to the accomplishment of the leading feature of the fundamental law, namely: Uniformity — taxation in pro- portion to values. A brief reference to historical facts, will show that the reve- nue system supplanted by the Code did not approach the great leading idea of the Constitution; did not impose a tax upon property in proportion to its value, but did result in taxation at war with the very purpose sought to be attained by the constitutional provision in question. From the report of the State Board of Equalization, organ- ized under the Act of eighteen hundred and seventy, we learn that in the year eighteen hundred and seventy, property in Alpine, Amador, Contra Costa, Fresno, and Tulare Counties ^was by the Assessor assessed at its full cash value; in Inyo, '^Kern, Klamath, Lassen, Mariposa, Merced, Mono, and Yuba, at f,| eighty per cent of its full cash value; in San Francisco, Santa ^Barbara, Alameda, and some other counties, at less than fifty "^ per cent of its cash value; while in San Mateo, the valuation did ap not exceed twenty-five per cent of the cash value. cj It will be seen that the owner of one hundred dollars worth of property in Alpine paid twice as much revenue to the State Government as the owner of a like amount of property in San Francisco, and the owner of one hundred dollars worth of property in San Francisco paid twice as much revenue to the same Government as the owner of a like amount of property in San Mateo. It was to sweep from existence a system which led to such results — a system unjust in its every feature — that a State Board of Equalization was established, clothed with power to equalize the values as between counties. We are told by the learned counsel for respondents that the action of the State Board of Equalization "irritates" the local authorities; that the presence of one of its members in San [ 6 ] Francisco at the session of the local Board was obnoxious to the members of the latter; but the learned counsel failed to state that the irritation in the instance cited arose from the fact that within an hour of midnight, on the last da}^ of the session of the San Francisco Board, the Board attempted to strike from the assessment roll about fifty millions of property belonging to the wealthiest and largest dividend-paying corpo- rations in that city, and were defeated by the prompt action of the member of the State Board whose presence was so irritating. We are told by the learned counsel that the action of the State Board has been in hostility to San Francisco. Such a fact could not be made the basis of an argument against the existence of the power in the Legislature to create the Board. But the fact does not exist. On the contrary, under the action taken by the State Board, the rate of taxation in the city last year was one dollar and fifty cents on each one hun- dred dollars worth of proj^ert}"; while this year, the local au- thorities having been undisturbed in their action, the rate will probably exceed two dollars on each one hundred dollars worth of property. A COURT WILL NOT DECLARE A STATUTE UNCONSTITUTIONAL UNLESS ITS INVALIDITY IS ESTABLISHED BEYOND A REASON- ABLE DOUBT. But it is not with the policy of this statute or its provi- sions that we have to deal. The question presented requires an examination at your hands of the authority of the Legisla- ture to enact the revenue system contained in the provisions of the Code — the exercise of the most delicate power con- ferred upon a Court — a power, the existence of which was formerly denied in toto by some of the most distinguished public men, and which is never to be exercised except when the conflict between the statute and the Constitution is palpa- ble and incapable of reconciliation. In the case of Satito v. The State of Iowa, 2 Iowa Eeports, p. 186, Mr. Justice Woodward said: "For some time after the establishment of the State Govern- ment it was doubted whether the judiciary possessed authority [ ' ] to declare and hold an Act of the Legislature unconstitutional and void, and the exercise of the power was declined by some Courts. And now, although the power is universally admitted, its exercise is considered of the most delicate and responsible nature, and is not resorted to unless the case be clearly deci- sive and unavoidable. It is the duty of the Court to give an Act such construction, if possible, as will maintain it." Said the Supreme Court of Indiana (4 Indiana, p. 344), in the case of Maize v. The State: "Such questions (involving the constitutionality of statutes) are alwaj^s regarded by the Coui'ts as of serious importance; the judiciary look to the Acts of Legislatures with great respect, and reconcile and sustain them if possible. The General As- sembly is the immediate exponent of the popular will, expressly delegated to clothe that will with forms of law. The presump- tion that such a body has sanctioned enactments in violation of the Constitution is not to be lightly indulged. That the Act is imperfect, or impolitic, is not enough. These defects subse- quent legislation can remove by amendment or repeal. To bring its validity within the 'control of the Courts it must be clearly subversive of the Constitution." In The People v. The Central Pacific Railroad Company of Cali- fornia, decided at the April Terra, 1872, it is asserted in sub- stance, that the legislative power is restrained only by the lim- itations of the Constitution clearly imposed upon its exercise, and that a statute enacted is not to be put aside by the Courts, unless its conflict with the fundamental law be manifest. For, say the Court, " The deference we owe to the legislative will is only second to that which we owe to the commands of the Constitution, which both the Legislature and the Court are sworn to obey." In The Stockton and Visalia Railroad Company v. The City of Stockton, 41 Cal., p. 1G2, the authorities bearing upon this propo- sition are collated and examined, and the results stated as fol- lows: " Whenever, therefore, it is alleged that a statute which has been enacted in due form by the legislative department of the [ 8 ] Government of this State is indeed in excess of its authority to enact, it is necessarily the allegation of an exception to the contrary of an admitted general rule; and, therefore, the con- struction is 'strictly against those who stand upon the excep- tion, and liberal in favor of the Government itself.' Hence, when we are called upon to declare that there was no authority for the Legislature to enact a particular statute, it is necessary that we be pointed to the clause or clauses of one or the other, or both of these Constitutions supposed to have taken away the power entirely, or limited it to something less than the subject to which the Legislature has applied it. It will not do to talk about the ' spirit of the Constitution ' as imposing a limitation upon a legislative power. The limitation ought to be some- thing definite in itself — as definite as a sum to be subtracted from a larger one in order to ascertain a balance." The power of this Court to declare an Act of Legislature unconstitutional is never to be exercised in doubtful cases. Whenever the proposition is fairly debatable — whenever there is a reasonable doubt as to the constitutionality of the Act — the Court is bound to declare the Act valid. Courts will not hear arguments for and against the validity of an Act of the Legisla- ture and determine its validity ujion the preponderance of argu- ment on the one side or the other, for whenever a reasonable doubt arises the question is decided in favor of the validit}^ of the Act. The Legislature impersonates the aggregate sover- eignty of the people; it is practically omnipotent, except in those particulars in which its power has been limited, qualified, or absolutely withdrawn by provisions of the Federal or State Constitution. Chief Justice Black, in speaking of this feature of our governmental system, in Sharpless v. The Mayor of Philadelphia, 21 Pennsylvania State Eeports, p. 160, says: ''If the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property as that of the Eussian Autocrat. But they delegated a portion of it to the United States, spec- ifying what they gave, and withheld the rest. The powers not given to the Government of the Union were bestowed upon the [ 9 ] Government of the State, with eertuin limitations and excep- tions expressly set down in the State Constitution. The Fed- eral Constitution confers powers particularly enumerated; that of the State contains a general grant of all powers not ex- cepted. The construction of the former instrument is strictly against those who claim under it; the interjDretation of the latter is strictly against those who stand upon the exceptions, and liberal in favor of the Government itself. The Federal Government can do nothing but what is authorized,' expressly or by clear implication; the State may do whatever is not prohibited." The duty of a Court in passing upon the constitutionality of a legislative enactment, may be likened to that of a jury in passing upon the guilt or innocence of an accused person in a criminal case. With the jury, every presumption is in favor of innocence. The State asserts the guilt and must prove it; if there be a reasonable doubt, the verdict must be, not guilty. With the Court, every presumption is in favor of the validity of the Act. He who asserts the contrary must establish the in- validity beyond a reasonable doubt, or the Court must declare the law valid. With the well settled rules governing the exercise of this delicate power in view, we proceed to an examination of the questions involved. THE CONSTITUTION DOES NOT REQUIRE VALUATIONS TO BE MADE BY ASSESSORS. The provisions of the Constitution, with which it is claimed the Code, in relation to revenue, conflict, are found in Section 13 of Article XI. That section contains four distinct prop- ositions: First — Taxation shall be equal and uniform. Sec- ond — All property shall be taxed in proportion to its value. Third — That value shall be ascertained as directed by law. Fourth — Assessors and Tax Collectors must be elected by the qualified electors of the district, county, and town in which the property taxed for State, county, and town purposes is situated. [ 10 ] ■ It is iijDon the fourth proposition that the argument is based that valuations must be made by Assessors elected, etc. In the petition for rehearing, we are referred to the debates in the Constitutional Convention, and it is claimed they support the views taken by respondents. The clause in question was inserted in the Constitution of this State at the instance of the native Californians (nine in number) who were members of the Constitutional Convention. They were the owners of large tracts of unproductive land, and were fearful that the burdens of Government might be imposed upon them. To obviate their objections, and to prevent their opposing the adoption of the Constitution, this clause was inserted, but whether it accom- plishes the purpose they hud in view or not, is another question. The debates of a legislative body cannot be relied upon in the iuterj)retation of a law made by such body. As said by Justice Ehodes, in The People v. McCreery, 34 Cal., p. 453, they "furnish but an uncertain, and often unreliable, guide in the interpretation of Constitutions and laws. It frequently happens that no one expresses the views of those by whose votes a measure of importance is passed. Those who sustain the raa- joritj^ may be satisfied with the vote, without discussion, and if one or more of them do join in the debate, it does not follow that their intention or their interpretation of the measure is that of the majority." Much less can the debates in a Consti- tutional Convention be cited as authority in the interpreta- tion of provisions of the Constitution. A Constitution is not made by the Conveiition which prepares it, but by the people who may never see the debates. On the adoption of the Constitution of California we know they could not have seen them, and could not have been influenced one way or the other by them. It is a well known fact, that the debates of the Cali- fornia Constitutional Convention were badly reported — the report being, in fact, but a skeleton of the debates, and unrelia- ble in every particular. We must find the intention of the framers of the Constitution in the languasre of the instrument itself; and our position is, that the fact that the term "As- sessor" is mentioned in the Constitution, does not place the officer beyond legislative control, nor prevent the Legislature from prescribing the duties of the office. We contend that the [ 11 ] term Assessor, as used in the Constitution, does not carry with it any definition ol' tlie powers of that otfieer, and that it is left to the Legislature to declare wiiat his powers and duties shall be. I am aware that this Court in one ease intimated that the valuation of property must be fixed, in the first instance, by the Assessors elected by the people, and that a law taking from the Assessors that power, and placing it in the hands of an officer not so elected, would be in violation of the constitutional provision 1 have referred to. At tlie time our Constitution was adopted, there was not within the limits of the State an officer known by the name of Assessor, while by referring to the laws of other States of the Union, we find that the power of fixing the value of property for the purpose of taxation was given under their Constitutions and laws to various officers; officers known by different names — in some States as Assessors, in some States as Commissioners, and in others, by other names; but I be- lieve there is not a single State in which it was ever claimed that the valuation fixed by such officers was final and binding. The Constitution declares that Assessors and Collectors must be elected. If the use of the word Assessor carries with it a definition of and fixes the duties of the officer, so the use of the word Collector carries with it a definition of and fixes the duties of the officer. "Collector" is defined to be one appointed to receive taxes. JSIow it must be admitted that if the Legisla- ture could confer upon any other officer the power to collect taxes, it could also confer the power of assessing upon some other officer. The two officers are put upon precisely the same footing by the Constitution, and whatever can be done in rela- tion to one by the Legislature can be done as well in rela- tion to the other. In The Attorney General v. Squires, 14 Cal., p. 17, the Court say: "The only difficulty we encounter is in the constitutional ob- jection to this appointment of Squires by the Board of Super- visors. If the Collector of Foreign Miners' Licenses be an officer within the thirteenth section of Article XI of the Constitution, it is said that he must be elected by the qualified electors of the district, county, or town, etc. Here it is pro- vided he shall be appointed by the Board of Supervisors. But [ 12 ] it might be said, probably, in rej^lj', that this appointment is not necessarily void on this account; that the appointment may be temporarily lodged in the hands of the Supervisors — as it might be temporarily given to a Governor — and would be good, at least until a general election. But waiving this: the error of the argument is in supposing that, because Assessors and Collectors are constitutional officers, every portion of the rev- enue must necessarily pass through their hands. We do not see that it would be at all unconstitutional to authorize every taxpayer to pay his taxes directly into the treasury. The law authorizes many acts — such as the service of papers, etc. — which seem appropriately to belong to the Sheriff's oifice, to be done by the j^arties or private persons. The law might authorize the collection of stamp duties by Notaries, or by the Secretary of State; or steamboat licenses, or saloon, or billiard licenses by clerks or Sheriffs; or taxes on writs by clerks. Indeed, the whole of the license receipts, where licenses are required, we apprehend might be made, if they are not now, receivable by other parties than Tax Collectors. If the Legislature could do away with the tax entirely, after the qualification of the Sheriff, it is diflScult to see why they could not change the hands that were to collect it. Though the license may be considered in some sense as a tax, yet probabl}^ it is not so in that sense which was involved in the supposed necessary duties of the Ta? Collector — as a tax on land or personal property. It is a special contribution, laid on a certain class of foreigners for the support of Government, and created by special Act of the Leg- islature. The duties of Tax Collectors are wholly undefined by the Constitution, as also their services and compensation; these are left to legislative direction, and we cannot see that an Act of the Legislature, committing this special duty of collecting this license money to particular officers selected by the Board of Supervisors, is a clear violation of the Constitution — in which event only could we declare it void." We contend, as the Supreme Court say in the case I have read from, that if it is competent for the Legislature to take from the Collector the duties pertaining to his office — a consti- tutional office as much as the office of Assessor — and place [ 13 ] them upon another ofRc'er.. it is, by purity of reasoning, equally competent for the Legislature to confer duties devolving upon Assessors, upon other officers. In other States, the value of property is, in the first instance, fixed by Assessors; but, as will be seen by reference to the Political Code (page 58, anno- tated, vol. 2), where, and on subsequent pages, the various laws of the different States have been compiled, in none of the States — in not one of them — is the action of the Assessor re- garded as final. In all of them there are Boards for equalizing purposes, vested with power to raise or lower the valuations made by the Assessors. The Constitution provides for the election, by the people, of various other officers, among which arc the Attorney General, the Controller, Sheriffs, and Clerks. If the insertion of the word "Assessor" in the Constitution carries with it a whole code of laws defining and fixing his duties, and takes from the Legislature the power to alter those duties, or to cast them upon any other officer, the same rule must be applied in the case of a Controller, Sheriff's, and Clerks. We have seen that the term " Assessor " has no fixed meaning, in American law at least. On the other hand, the duties of the Controller were well known at the time of the adoption of the Constitution — an officer exercising the duties of Controller then existed in every State of the Union, sometimes under the name of Controller, sometimes under the name of Auditor. An officer with similar powers has an existence under the Federal Government, un- der the name of "Auditor," and the duty, in every instance, whatever the officer was called, was to audit and pass upon claims against the Government of which he was an officer. In this State, it has been expressly decided that the Legislature may take from the Controller duties which pertain to his office and devolve them upon another officer, or a Board of officers. In Ross vs. Whitman, 6 Cal. 364, where the precise question arose, the Court said: "Where an}^ of the duties or powers of one of the depart- ments of the State Government are not disposed of or distribu- ted to particular officers of that department, such powers or duties are left to the disposal of the Legislature. When, there- [ 14 ] fore, the Legislature appointed a Board, consisting of three executive State officers, to perform a certain duty which there- tofore had been performed by the Controller of the State, but which is not prescribed by the Constitution as the peculiar duty of that officer, we hold the act valid and binding, because the power of the Legislature is supreme except where it is ex- l^ressly restricted." The Constitution prescribes that Sheriffs must be elected by the people; yet, would it be contended that the various laws which have been passed in this State allowing the service of summons to be made by persons other than Sheriffs, are unconstitutional, because such duties were formerly devolved upon Sheriffs? Counsel for resjjondent having invoked the debates in the Constitutional Convention, we invoke the action of the men who framed that Constitution. Many mem- bers of the Constitutional Convention were members of the first Legislature which assembled in this State. That Legislature provided for County Boards of Equalization, and conferred upon them power to change the valuation of property from that fixed by the Assessors, and from that time to this the power has been exercised, this Court repeatedly affirming its constitutionality. Such legislation must rest for its support upon the same au- thority as the Act creating the State Board of Equalization. If we are to be held to the rule that the valuation can only be made by some officer elected by the people of the district in which the property is situated, it will follow as a necessary consequence that the action of the County Boards of Equaliza- tion have been unconstitutional, and that this Court must now reverse the former decisions sustaining the Legislature by which the County Boards were created. It is true the Boards of Supervisors, which of late years have constituted the Boards of Equalization, have been elected by the people; but it is also true that they have not been elected by the people of the whole county. Counties have been divided into Supervisor districts — two, three, four, five, and some as high as twelve Supervisor districts— and the members of the Board are elected by the electors of different districts, and yet they [ 15 ] pass upon valuations of property in other districts. If the argument be a sound one, that the valuation must be fixed by an officer elected by the people of the district — and cannot be changed by any but an officer so elected — it must be admitted that the whole practice of the State for twenty years has been wrong, and that this Court has during all that time upheld that wrong in the various eases that have been brought here involving the question. But, turning again to this clause of the Constitution, we see that not only is the Legislature authorized to create a State Board of Equalization, but that the very provisions of the Con- stitution which are invoked against the power requires the Legislature to establish a tribunal of that character. There are four propositions contained in that section. One of them, that the Assessors and Collectors must be elected by the people, I have already noticed. That is the last clause of the section. A preceding clause requires that all property in the State shall be taxed in proportion to its value; and another clause pre- scribes that the value is to be ascertained as directed by law. Now, may it please the Court, it is a principle well settled in the construction of Constitutions, as of statutes, that the Court must give force and effect to ever}" clause — every word in a given section. If it be true, that under this Constitution the Assessors are to fix the value of property, and that their action to that end is final, wiiat effect can be given to the provision which declares that its value shall be ascertained as directed by law? "All property in this State shall be taxed in proportion to its value, to be ascertained as directed by law." If the action of the Asses- sor was to be final, what office would any law, directed toward ascertaining the value of the property, have to perform? We say none. But there is another clause 3'et — the first clause, which ap- pears to be the leading idea in this whole matter — and that is, that "taxation shall be equal and uniform throughout the State." Now I assert here, that if you apply to the State Constitution the same rule which you aj^pl}^ in the construction of the Fed- eral Constitution — that it is a grant of power — you will still be able to find in this provision the power to establish such a Board. "Taxation shall be equal and uniform throughout the [ 16 ] State," says the Constitution. It does not prescribe the rules by which that uniformity shall be reached, nor how the valua- tions shall be equalized. It leaves those matters to the Leg- islature; and we say, that here is a mandatory provision of the Constitution binding upon the conscience of the legislator which requires him, in his capacity as a law maker, to estab- lish some tribunal by which the end sought may be attained. "Taxation shall be equal and uniform throughout the State." How would it be possible to attain that equality and uni- formity which this Constitution seems to contemplate, if the assessments made by the Assessors are to be final? It would not be possible. The experience of the past has shown that even with the aid of the County Boards of Equalization it could not be attained. So far from having equality and uni- formity in taxation, we have had inequality without uniformity. "We have had as many bases of taxation, as many different methods of valuation and equalization, as there have been As- sessors and Boards of Equalization in the various counties. So that we have learned that a State Board, with power to super- vise and harmonize the subordinate agents, is indispensable, in order to carry out the mandate of our fundamental law. THE POWER TO ASSESS DOES NOT INCLUDE THE POWER TO EQUALIZE. Assuming, for the sake of the argument, what we deny in fact, that the Constitution requires a valuation to be made by an Assessor elected by the people, yet it will not follow that the powers and duties devolved uj^on the State Board of Equal- ization are obnoxious to the constitutional provisions. Sec- tion 13, of Article XI, of the Constitution, among other things, requires, in relation to the revenue, the exercise of at least three distinct powers: assessment, equalization, and collection. The mode and manner in which these several and distinct powers are to be exercised — with, at most, the exception that the par- ticular ofiicers who exercise in part the first and last named powers must be elected, etc. — are left to the discretion of the Legislature. The power to assess is one thing; the power to equalize is another; and the power to collect, still another. But all must [ 17 ] be exercised if we are to carry out the provisions of the Consti- tution. The definition of the word "equalize" given li}' Web- ster is, " to make equal; as to equalize accounts; to equalize taxes or burdens." Now this power was never vested in the Assessor in any State. It is a separate and distinct power from the power to assess. It is true that a knowledge of some of the facts necessary to make an assessment may be nec- essary to making an equalization, but it docs not follow that they are one and the san)e tiling. It is only after tlie duty of the Assessor has been fully performed that the exercise of the power to equalize commences. It is a power intervening be- tween the assessment and collection of taxes — a power the existence of which is recognized by almost every State in the Union. This ver}' question has been passed upon in tlie State of Illinois, and the power has been affirmed. I refer to the case of The People of the State of Illinois ex. rel. 0. H. Miner, Auditor, etc., v. Edicard S. Solomon, County Clerk of Cook County, reported in 4G Illinois Reports, p. 333. The provision of the Illinois Constitution, corresponding to ours, is as follows (Ar- ticle IX, section 2): "The General Assembly shall provide for lev3-ing a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property; such value to be ascertained by some person or persons to be elected or ap- pointed in such a manner as the General Assembly shall direct, and not otherwise." It will be seen that the Constitution of Illinois, like the Con- stitution of our own State, provides that propei'ty shall be val- ued, in the first instance, by persons elected or appointed for that purpose — both Constitutions in that respect being substan- tially the same. On the 8th of March, 18G7, an Act to amend the revenue laws, and to establish a Board for the equali- zation of assessments, was passed by the Legislature of Illi- nois. The leading features of that Act do not vary from our own law. Tlie reasons which led to the enactment of the statute in that State are similar to those Avhich led to the [ 18 ] enactment of our own statute. The validity of the Illinois statute was attacked, and the power of the Legislature to pass it was challenged on the precise grounds urged against our statute. In The People v. Solomon, supra, the Supreme Court of that State, in passing upon those objections, after recapitulat- ing the evils which existed under the old law, and showing that the grossest inequalities pervaded the assessments in the State, say: " If the Legislature have no power under the Constitution to provide a corrective for these monstrous evils inflicted un- justly uj^on the individual property owner and robbing the Treasury of the State of its just revenues, then, indeed, it must be conceded that it is a feeble instrument, and the sooner it is overhauled and its weak places strengthened the better. But these evils, grievous as they are, and even if tenfold greater, furnish no apology to the Legislature for a law to correct them, unless such law shall be within the constitutional com- j)etency to enact. As we have said in several cases, the framers of our Constitution have taken great 2)ain8 to aflSrm the principles of equality and uniformity as indispensable to all legal taxation, whether general or local; and if the Act of February 8th, 1867, eschews these j)rinciples, or violates them, it must be condemned — however praiseworthy may have been the object, and however pressing the necessity. The great central idea of the Constitution, and of its framers, was not a system of revenue based on the valuation of property, but uni- formity and equality in the assessment of the tax upon it, when valued, so that every person should pay a tax in proportion to it. That is the leading idea. Is that object infringed ujjon by the Act in question? Has not the valuation of prof)erty in Cook County been ascertained by persons appointed by the General Assembly? And was not the manner of their appointment an open question with the Legislature? * * * Keeping in view that the central idea of section two, Article IX, of the Constitution, is uniformity of taxation, and that exact uniformity is under no system practically attainable, an approximation to it is all that can be demanded. When property is valued by persons [ 19 ] appointed, or elected for that purpose, the injunction of the Constitution is obeyed. AVhy are values to be ascertained? So that every person and corporation shall pay a tax in propor- tion to value. That is the sole object of valuation. How is the fact to be ascertained that in levjnng a tax on this valua- tion, which evei'y person has been required to pa}', it is in proportion to its ascertained value? That is the important ques- tion. * * * It may be asked, how shall the value be ascer- tained by the persons elected or appointed for this purpose? The Constitution prescribes no mode. None of the details are found there. The great principle onlj^ is announced that val- uation shall be the biisis, in order to produce uniformity in results, all else being left to the wisdom of the Legislature. Whatever they may do; whatever mode they may prescribe, which does not overleap this boundary', must be legitimate. * * * The true value of property, by no sj'stem 3'et devised by the wit of man, can be exactly ascertained. An approximate value having been returned by Assessors, it is the clear object of this section so to equalize the valuations among the several counties of the State as to approximate, not to reach — for that is also impracticable — a perfect, but an attainable degree of uni- formity, and thus carry out the great and central requirement of the Constitution; and this by the application of the doctrine of averages — a doctrine which enters into all kinds of business, into all the complicated affairs of life, and which has received the sanction of the learned and the wise of every civilized nation. What is the object of this provision in the Constitu- tion (the provision that propert}' shall be taxed in proportion to its value)? The answer is, to raise a revenue for the sup- port of the Government. On what shall it be raised? On property. In what manner? By valuing the property of the several counties through the agency of persons elected or ap- pointed for that purpose. On what principle must the tax bo levied? On the principle of uniformity, by which all the citizens of all the counties shall pay a tax, not in precise propor- tion to the value of their propert}^, but as nearly so as the ap- plication of just principles to the value of it will be most likely to i^roduce the desired result." "And," say the Court, " there is nothing in the Constitution expressly prohibiting a revision [ 20 ] of valuations and assessments, and that principle has been in- corporated into our revenue 'system by all the revenue laws passed since the ado^^tion of the present Constitution." It will be seen by reference to the provision of our own Constitution that it does not require that property shall be taxed at its actual cash value, but the requirement is that it shall be taxed in proportion to its value to be ascertained as directed by law. It was in order to carry out this provision that the State Board of Equalization was created, and power given it to equalize the values as between the counties so that uniformity might be obtained. A State Board does not fix the value upon property; the value is fixed in the first instance by the Assess- ors of the respective counties or districts; but the State Board does reduce the rates to an equal standard, so that the same amount of property in Alpine County shall bear the same bur- den of taxation as a like amount of propert}^ in San Francisco. If authority be needed to sustain the proposition which we maintain is sustained by the very language of the Constitution, that authority will be found in the Illinois case cited, for it is there clearly held that the right to create a State Board of Equalization, with power to review the valuations of the Assess- ors, is vested in the Legislature; that not only does the power exist, but it is the duty of the Legislature, in order to carry into operation the provisions of the Constitution itself, to create such a Board. The next point made in this ease, and to which the Court seem to attach a great deal of importance, arises, if it arise at all, under Section 3696 of the Political Code: "At the same time the Board must determine and transmit to the Board of Supervisors of each county the rate of the State tax to be levied and collected, which, after allowing for delin- quency in the collection of taxes, must be sufficient to raise the specific amount of revenue directed to be raised by the Legisla- ture for State purposes." I believe it is admitted upon all sides that it would be compe- tent for the Legislature to say that there should be raised for any [ 21 ] given fiscal year a specific sum, and to delegate, if I may so call it, the power to make the computation upon tlic return of the Assessors so as to ascertain the rate per eenLuiu necessary to raise that amount. J3ut it is contended tliat tlie provision in this section which allows the State Board of Equalization to take into consideration the fact that there might be a delin- quenc}^, in computing the rate of tax necessary to produce the sum specified by the Legislature, is unconstituiioual, be- cause it is a delegation of legislative power. We are not here to den}' the proposition, broadl}' asserted .upon the other side, that the legislative power cannot be delegated. We admit that a power conferred upon an agent, because of his fitness and because of the confidence rejiosed in liiiii, cannot be delegated to another. That Legislatures stand in this rela- tion to the people whom they represent, cannot be doubteil. We maintain, in the first place, that in the section under con- sideration there is no delegation of legislative power to the State Board of Equalization. The legislative power is the authority under the Constitution to make laws, and to alter or repeal them. Is there any delegation of such an authority here? Was not this law perfect and complete Avhen it em- anated from the law-making power? Does this section confer upon the State Board of Equalization any power or author- ity to make laws? We say no. It is true that there is a discretionary 2:)0wer vested in the Board by this section, but it is not a power to say what the law shall be; it is a power to ascertain facts, and to apply the law to them. Under the system formerly existing in this State, the Legis- lature fixed the rate of taxation in advance of the annual as- sessments, and it was utterly impossible that the Legislature should or could know the amount necessarj' to be raised. The inevitable result was, that either a greater or a less amount of money than the exigencies of the State required was raised. Under the jn-esent system, the Legislature first fixes the amount necessary to carry on the oj)erations of the State government at a sum certain. The assessments are then made, a return made to the State Board of Equalization of the amount of taxable property in the State, and by a mathematical calculation the Board ascertains the rate neces- [ 22 ] sary to raise the amount required by the Legislature) taking into consideration the fact that expenses are incurred in the collection of the revenue, and that in the nature of things there must be delinquencies. In fixing that rate the Board estimates as near as may be the expense of collecting the revenue and the amount of the delin- quency, and fixes a rate sufficient to raise a net sum equal to that required by the Legislature. The Legislature leaves to the Board the determination of a question of fact which it could not jDOSsiblj' determine itself, and it is claimed that this is a delegation of the law-making power. The learned counsel for respondents have not cited any cases which sustain the theory contended for by them, but we are referred to numer- ous cases in the different States which assert the principle that the law-making power cannot be delegated. Upon a review of those cases, however, it will be found that in none of them is there involved the question presented here. They are of that class of cases in which the question presented was whether it was comjietent for the Legislature to pass bills authorizing the people of various localities to decide the question of the loca- tion of county seats; of whether public schools should be main- tained or not; and, in some of them, the question as to whether it was a delegation of the law-making power or not turned upon the form of expression used in the Act. A distinction was taken between an Act which prescribed that it should have the force 6f law after a vote of the people of the locality in the affirmative, and an Act which, in form, was a law when passed, but depended for its enforcement upon the action of the people of a locality — a distinction which turned upon the form and not upon the substance of the Act; a distinction which, we think, is one without a difference. In Hohart v. The Supervisors of Butte County, 17 California, p. 24, the validity of an Act of the Legislature authorizing the Supervisors of that county, upon the affirmative vote of the people, to issue bonds in aid of the construction of a railroad, was involved. It was argued that as the Constitution vests the Legislature with the law-making power, that power could not be delegated to the people of the State, or to any portion of them. It was contended that the Act in question, by its [ 23 ] fourth section, made the issuance of bonds depend upon the result of the election, and that, therefore, the majority of the voters of the county — and not the Legislature — had decreed their issuance. " But," say the Court, " the legislative department, repre- senting the mass of political powers, is no further controlled as to its powers, or the mode of their exercise, than by the re- strictions of the Constitution. Such restrictions must be shown, before the action of the Legislature, as to fact or mode, can be held invalid. Accordingly, the Legislature having this general power of enacting laws, may enact them in its own form, where not restrained, and give to them such effect, to be worked out in such way and by such means as it chooses to prescribe." In that case, great stress was laid upon the terms of the Act in question, one clause of which was: "If the election shall authorize the issuance of said bonds the Board of Super- visors, in that event, are empowered to issue the bonds." It was urged that the language of the Act showed that the au- thority for the issuance of the bonds came from the election and not from the law, and that therefore the voters were really the law makers; as in the case at bar, it is contended that the authority for the levy comes from the Board of Equalization and not from the Legislature. But the Court, in answer to that argument, said the provisions of the law were completed by the Act of the Legislature. So we answer here, the provi- sions of this law were completed by the Act of the Legislature. The learned Judge, who delivered the opinion in that case, does not admit the distinction taken by the Courts of the other States, between laws which are to take effect upon the affirma- tive vote of the people and those which are in form to become laws upon an affirmative vote of the people. The penal statutes of this State leave it to the Judge, upon conviction, in some felonies, to prescribe the term of imprison- ment. For instance, upon a conviction of murder in the second degree, the Judge may impose punishment of imprisonment in the penitentiary for a term of not less than ten years, or he may ex- tend the term to imprisonment for life. Within those limits the Judge has the discretion of fixing the amount of the punish- [ 24 ] ment to be attached to the offense. And so with other offenses'. Now, is the exercise of that discretion an exercise of the law- making power? We answer no; the Legislature is the tribunal that must determine what i^unishment shall be affixed to the commission of crime, and no crime can be punished except under the authority and sanction of some legislative Act. But it does not follow that because the punishment is not precisely fixed there is a delegation of the law-making power. The action of the Judge is under the law, by authority of law, and the sentence which he imposes is the sentence of the law, and not of the Judge. So in the matter of taxation, the whole power vests in the Legislature. Every tax must be levied, as every crime must be punished, under legislative sanction. And this principle, when applied to taxation, is true of local as well as of general taxation. The authority to levy a tax, either for State or for local purposes, must be found in some Act of the Legislature. But it is not necessary that all the details should be found in the law. Something must, in the very nature of things, be left to the discretion of the authorities acting under the law. The SujDreme Court of Pennsylvania, at a very earl}' day, took extreme grounds upon the question of the delegation of the law-making power, and held that a distinction might rest merely ujDon the form of a statute. The only case however to that effect was never recognized as authority even in that State, and, in the later cases, has been expressly overruled. On the 21st of March, 1873, in the Appeal of Lock, reported in the "Legal Intelligencer," page 93, the Court upon this topic observe : " What is more common than to appoint commissioners under a law to determine things upon which the Act is to operate one way or the other? And has this power ever been questioned?" The Court say not. Yet the section under consideration in these cases simply ap- points a Board to determine a thing upon the decision of which the law fixes its judgment. The Board determines what the deficiency will be, what the expense of collecting the revenue will be — questions which the Legislature could not determine; but the Legislature has determined what the law shall be after these facts are ascertained. The Supreme Court of Pennsyl- [ 25 ] vania, in the same case, say that tlie true distinction is this: " The Legislature cannot delegate its power to make a law, but it can delegate the power to determine some fact or state of things upon which the law intends to make its own action depend." So, here, the Legislature has not delegated its power to make a law; but it has made a law delegating the power to determine some fact, or state of facts, upon which tlie law makes, or intends to make, its own action depend. In the case of Bull v. Reed, 13 Grattan, p. 86, in which the opinion was delivered by Judge Lee, one of the ablest of the modern Virginia Judges, the cases upon this subject are collated and reviewed, and he arrives at the result stated in llobart v. The Supervisors of Butte County, and in the Appeal of Lock, supra. The office the Legislature has to perform is fully accom- plished when it has made the law; when it has established the general rule of conduct under which the officers arc to act. The fact that a discretion as to minor matters is left to proper agents, in cases where the Legislature cannot as well exercise such discretion, does not constitute a delegation of the law- making power. Legislative Acts, declaring in effect that the people of a- county may by vote determine the location of a county seat, have fre- quently been before the Courts upon the question of their validity — whether or not the Acts delegated to the people legis- lative power which the Legislature alone could exercise. But in every case of that character, cited by respondents, a solution of the question turned upon the point whether the language of the Act — the words enrolled upon the parchment — became operative by reason of the legislative action had thereon or by reason of the action of the people of the county; whether, in point of fact, the Legislature enacted the words of the Act or delegated that power to the people. No such question can arise in this case, for it is admitted that the section under consideration was, both in form an 1 in sub- stance, a law, when the legislative action thereon ceased. It is neither in form nor in substance a delegation of legislative [ 26 ] power. There is a delegation of power to a tribunal to de- termine facts — not of a power to make laws. That the Legis- lature may constitutionally exercise this power does not admit of serious doubt. In Grant v. Courier, 24 Barb., p. 241, the Court say: " Where a duty in respect to a particular thing is enjoined by the Constitution upon the legislative discretion, even though the authority may have been previously exercised b}^ the Leg- islature, no limitation is thereby set to legislative power, nor can an intention be implied on the part of the framers of the Constitution, or the people who adopted it, to restrict the law- making department in the manner of discharging the duty. No just or logical implication can arise that, in the section under review, it was intended to restrain the Legislature, when dealing with the subject of municijoal power, from conferring upon municipal governments new and enlarged powers in re- spect to taxation and the creation of debts, if, in its wisdom, good government and the welfare and interests of the commu- nity to be affected were to be thereby promoted. There is no force in the ground that the Act is unconstitutional for the rea- son that its adoption as a law was made to depend upon the consent being first obtained of two thirds of the taxpayers rep- resenting two thirds of the taxable property of the town. This is not true, in fact, as will aj^pear from an examination of the statute. Its adoption as a law was not made to depend upon the will of any person or body other than the Legislature. No extraneous power, unrecognized by the Constitution, was called in or invoked to give it being as a law. It was the emanation exclusively of the legislative will; and was perfect, final, and decisive in all its parts when it came from the hands of the law- making department." This decision was given in support of the constitutionality of an Act of the Legislature of New York, authorizing the towns in the counties through which the Albany and Susquehanna Eailroad is located, to borrow money, and subscribe for and purchase the stock of the company, with the view of aiding the work. In the case of Clark v. The City of Bochester, 13 How., P. E., p. 204, the Court had held that where an Act was passed not [ 27 ] to become a law until the majorit}'' of the electors in the State had voted for it, there was a delegation of legislative authority, because the law was not made by the Legislature but was left to the votes of the people. In the case of Grant v. Courier, supra, the Court say the law then under consideration was the "emanation exclusively of the legislative will," and no extra- neous power had been called in. Now, in regard to the section under consideration by this Court, has any extraneous power been invoked? AVas not the section final and complete when it left the Legislature? Even admit the distinction between an Act which the Legislature passes, absolutcl}', and an Act passed subject to ratification or rejection by a vote of the people, still the statute we are now considering is entirely free from objection on such grounds. Could the Legislature have done anything further to perfect tliis Act? Has any other body or tribunal j^ower to alter it, to change its pro- visions, or to prevent its taking effect? Certainly not. It possesses every element of a law. It is a solemn expression of the will of the legislative power of the State. I will read again from the same volume, at page 475, in the case of Clark v. The City of Rochester, where Justice Smith, citing approvingly the remarks of Judge Marshall, in Slack v. The MaysvlUe and Lexington Railroad Compajiy, 9 Monroe's Reports, p. 52G, observes: " It is not essential to the character and force of a law that the legislative enactment should itself command to be done everything for which it provides. The legislative power to command a particular thing to be done includes the power to authorize it to be done. The act done under authority con- ferred b}' the Legislature is as precisely legal and valid as if done in obedience to a legislative command. So far as such statute confers authority and discretion, it is as obligatory from the first as the legislative power could make it; and, although its further practical efficiency nuay depend upon the discretion- ary act of some other body or individual, it is not derived from that, but from the will of the Legislature which authorized the act and prescribed the consequences." Now this is the XGry doctrine for which we are contending. [ 28 ] It is within the discretion — the power of the Court — to impose a sentence of imprisonment in the State Prison or to visit by fine and imprisonment the same offense. That depends upon the discretionary act of the Court. It was derived, originally, from the will of the Legislature, which by law authorizes the exercise of this discretion. Fui"ther on, in the last case I have referred to (at page 502), Justice Johnson says of the statute then under consideration: " By its own terms it could never have the force or authority of law until it had received the assent of a majoi'ity of the votes of the voters at an election. So, here, it was the sections themselves which were submitted for approval or disapproval, and it was a favorable vote alone which could give them any vitality or force. The limitation Avas directly upon the grant of power and not upon its exercise after the grant had taken effect and vested the power in the Common Council. The vote determined whether there should or should not be any grant. And it was in reference to this precise condition of the provi- sions of a statute, emanating from the Legislature, that the Court of Appeals said, in Barto v. Slmrod, i Selden, p. 483: ' They were not law, or to become law, until they had received a majority of the votes of the people at a general election in their favor, nor unless they received such majority. It results, therefore, unavoidably, from the terms of the Act itself, that it was the popular vote which made the law. The Legislature prepared the plan or project and submitted it to the people to be passed or rejected. The Legislature had no power to make such submission, nor had the jDeople any power to bind each other by acting upon it.' And Chief Justice Euggles, in his opinion, even goes so far as to sa}^ that if the Act had, by its terms, been declared to be law from the time of its passage, to take effect in case it should receive a majority of votes in its favor, it would nevertheless have been invalid, because such vote would have involved the expediency of the law, and is not such an event as a statute can be made to take effect upon, according to the meaning and intent of the Constitution." By the section under consideration here, power to j^ass upon the expediency of the law is given to no one. [ 29 ] "It is not denied," says the learned Chief Justice, "that a valid statute may be passed to take effect upon the happening of some event, certain or uncertain. But such a statute, when it comes from the hands of the Legislature, must be law in presenti to take effect in futuro. It is argued that these sections so far took effect when they came from the hands of the Legis- lature as to be in some sense law in presenti. But this, I appre- hend, cannot be so. When the Legislature said they should not take effect, except in a certain contingency, and should take effect when that happened, they said the sections should not be law unless the event happened. Until then, it was no rule for the government of any one. No one could violate it, nor ac- quire any rights, or exercise any authority under it. It vested no power to be exercised, and no one could do any valid or binding act under it. How, then, can it be deemed a law iu any sense? A law is a rule of conduct, imposing duties and obligations upon the citizen which is capable of being violated, and under which he may acquire and enjoy rights. Suppose this same provision had applied to the whole amended charter, would it have been law until the election had been held and the certificate of a vote of approval filed? Certainly not. The old charter would have remained in full force, and been the sole and exclusive law of the cori^oration until the happening of that event. Indeed, a statute passed to take effect at a future day is not law in presenti in any just sense in which the term law can be used. It is an enactment which is to become law at the day appointed, but in which all vitality is suspended, or rather from which it is withheld, by the power which created it, until the appointed time." Again, he says: "It is urged that laws passed for the government of the in- habitants of a village or city stand upon a different footing from those passed for the government of the whole peeple of the State, and that a submission to the electors which would render a general law void and of no effect would not affect injuriously a local law. But I am unable to see any ground on which such a distinction can possibly rest. It is simply a question of power, in the Legislature, under the Constitution. No one [ 30 ] pretends that the Constitution has, by any terms, prohibited it in the one case and allowed it in the other. The power of the Legislature is manifestly the same in both cases. If it has no power under the Constitution to submit a law for approval or disapproval to the electors in the one case, it has not in the other; and if the electors have no power to bind each other by acting upon the submission in the one case, they have not in the other. The legislative power of the State is vested in the Sen- ate and Assembly for the purpose of enacting local as well as general laws, and must be exercised in the same manner in either case; and anything in form or substance which would avoid one would the other, in all cases where the Constitution has not prescribed a different rule. The power must be exer- cised as fully and completely in a statute relating to the con- struction of a railroad by a corporation, as in one relating to common schools and general education. But for this decision of the Court of last resort, in Barto v. Himrod, I should have no doubt that it was not only perfectly competent for the Leg- islature to pass a valid law in this form, but that it was highly expedient and proper in that body to consult the electors on a question like this before delivering them over, bound, to the Common Council." He follows the rule laid down by the Court of Appeals, but does not approve it. Further on, he says: <' I have bestowed no inconsiderable reflection upon this sub- ject since this novel theory was first broached — that the submis- sion of a statute, enacted In due form by the Legislature, to the people for acceptance or rejection in some prescribed form, rendered it a nullity. Without being able to comprehend, clearly, the principles upon which it has been held to rest, I have not been able to see at all why it is that the law-making body, in the absence of all constitutional restrictions, may not, in the plenitude of its sovereignty, properly exercise its power, subject to such checks and limitations as it may see fit to im- pose. And this is virtually conceded when it is admitted that a valid law may be passed to take effect upon the happening of a future contingent event. The legislative sovereignty is just as fully and completely exercised by an enactment in that form [ 31 ] as in any otliei*. It is of the very nature and essence of sov- ereignty to exercise its power absolutel}^ or conditionally, as it may choose. It may enact absolutely, and bind the elector even against his will and in known and intentional hostility to it; or, in accordance with his wishes and subject to his ap- proval and acceptance. It is by no means essential to the full and proper exercise of sovereign power that it should be exer- cised in opposition to tlie will of the governed. The sover- eignty is quite as full}", and, indeed, more strikingl}'- manifested, when exercised in accordance with the elector's will, and sub- ject to his approval and acceptance. The requirement of the approval or assent of the elector as the condition of an enact- ment taking effect and becoming operative as a law, is no dele- gation of legislative power to the electors, as seems to have been supposed. And the elector's act of approval, b}- his vote, has not the quality of, nor does it purport to be, an act of sov- ereignty. It is an act simply of assent or obedience, and serves only to remove the check or limitation to the full and free operation of the supreme will. It operates as a secondary means, simplj^, devised and employed by the sovereign to ex- press his own will and render it absolute. And it is the sov- ereign will embodied in the enactment, and not the secondary act of approval by the elector, which makes the law in such a case. For instance: A. and B. enter into a contract which is full and complete in all its parts and provisions, and signed by the parties. But in it they insert a condition or proviso that it shall not take effect and become binding until it has been sub- mitted to C, and he shall have indorsed his approval u])on it, or his opinion that it is in due form or not contrary to law. It is no contract until it has C.'s indorsement, and 3'et C. does not make it, nor is any power delegated to him to bind the parties by contract. It is still the sole act of A. and B., and it is their will which binds, and C. acts only secondarily as an instrument or adviser. And so I conceive that were an Act passed by the Legislature, with a proviso that it should not take effect and become a law until it had been submitted to the Court of Ap- peals, and the requisite number of Judges had concurred in and filed an opinion that its provisions were not in conflict with any provisions of the Constitution, the Court of Appeals by this act [ 32 ] would not make the law, cor would any legislative power be delegated to them in such a case. Their act would simply ful- fill a condition, and remove a check, and it would still be the legislative will which had employed these secondary means that would create and constitute the law. This illustrates, in my judgment, the clear and plain distinction between a check devised and imposed by the supreme will, upon the operation of its own decrees or enactments, and the delegation of sovereign power. And it is by overlooking this distinction that Acts like the one under consideration have been held to be invalid." The learned Judge then considers the theory of the opposite side: " The logic of the opposite theory is exceedingly brief It is substantially this: By the terms of the enactment it is no law without the required assent; therefore the act of yielding assent creates the law and operates as the law-making power. This may seem plausible, but it must be seen in the end to be utterly delusive and unsound. The assent or dissent is a sub- ordinate, and not a sovereign, act, and, in its nature, char- acter, and office, is precisely like the executive sanction, or neg- ative, which is in no sense the exercise of law-making power. With this diftcrence, however: that in the one case the check on limitation is devised and imposed by the authors of the Con- stitution — the ultimate sovereigns — and in the other by the law-making power, upon its own acts, in the exercise of its un- restrained sovereignty. And so, too, in my judgment, it is no evidence whatever that the Legislature did not pass upon the expediency of a statute, or exercise the sovereign judgment in reference to its expediency, because they ordained that it should not take effect without its receiving the assent of a majority of the electors." The cases from which I have read involved the question whether a statute passed to take effect upon a vote of the people was a perfect law or not. The law we have before us is not such a statute. It is not amenable to the objections urged in those cases. If there is no delegation of the law-making power, in the case of a law which cannot take effect at all for [ 33 ] any purpose but upon the huppening of a certain contingency, how can there be a delegation of legislative power in tliis statute, which, at most, merely gives discretion to certain agents in conipnting the possible delinquency in the collec- tion of the taxes? Mr. Justice Crockett — Does jonv argument go to the extent of holding that if the Legislature should delegate the power of fixing the rate of taxation to the Governor, that the Act would be constitutional? Mr. Haymond — Yes, sir; it would not be a delegation of the power to make a law. The Legislature itself makes the law. For instance, it is perfectly competent for the Legislature to declare, by law, that in criminal cases the jury may, by its ver- dict, determine whether the prisoner, if convicted, shall, for a given offence, be punished either bj'' death or imprisonment in the State Prison. This has been done in almost every State in the Union. But, if the Legislature should declare that "The Courts shall, by a rule, determine the kind of punish- ment to be affixed to a crime " it would be a different thin That would be a delegation of legislative power, for it would be an attempt to authorize the Courts to make a law. The one is the exercise of the power in its full sense; and the other, merely the exercise of a subordinate act, which, if it is of the nature of legislative power, is but remotely so. In their petition for rehearing, respondents cite, as authority in their behalf, a recent decision of the Court of Ap^icals, New York {Appeal of Locke et al., Legal Intelligencer, 1873, p. 931); but that case, so far from sustaining the views of re- spondent, is, with its attendant facts properly considered, in favor of the very construction which we contend for. There is in our Constitution no limitation upon the power of the Leg- islature to impose taxes, except the limitation in the section quoted; but in the New York Constitution it is provided that the Legislature shall not pass any Act by which taxes are to be raised, unless the object for which the taxes are to be raised is stated in, and the amount of the tax is fixed by, the Act. [ 34 ] According to the theory of the respondents in this case the in- sertion of that provision in the New York Constitution was an idle act. It conkl, according to their theory, have no force or effect whatever; hut it is evident that the men who framed the New York Constitution were of the opinion that, unless such a provision was inserted in the Constitution, the Legislature would have power to pass an Act to raise revenue, without either stating the object for which it was to be raised or fixing the amount of the tax. State Constitutions are limitations upon the power of Legislatures, and not grants of power to those bodies. The Legislature may do any act which that Constitu- tion docs not forbid, either by expressed terms or necessary intendment. The Legislature of New York passed an Act, which the Court of Appeals of that State sa}^, neither states the object for which the tax is levied nor fixes the rate. That law the Court declares unconstitutional, but declares it uncon- stitutional solely upon the ground that it conflicts with the pro- vision of the New York Constitution referred to — one for which no corresponding provision in ours can be found. If it were otherwise — if the Court of Appeals of New York had decided the Yery question presented in these cases — that deci- sion is not binding upon this Court. For aught we know counsel may be standing in the Court of Appeals, in the State of New York, upon a reargument of that case, and contending that the Court should depart from the rule which it established, and follow the rule of the California cases. The effect which is to be given to the decision of the Court of a sister State depends upon very manj^ considerations: the ability of the Judge who delivered it; the reasoning by which he sustains the opinion; the investigation which he has given to the question. If we find that an opinion has been delivered without a thorough examination of the question presented, it is no authority; it can be no authority in a Court of a sister State. An examination of the opinion in question will show that the veiy strongest ar- guments in favor of the conclusion at which the Judges arrived were based upon an entire misapprehension of the legislation of their own State. The Judge, who writes the opinion deliber- ately, states that it is the first law of that kind ever passed in that State, while the statute book of a single session of the [ 3o ] State Legiylaiurc sliows no less tlian six Acts; and, so far as we have been able to find, j-iinning through the laws ot" that State, the enactments of that character are without inunber. But the whole answer to this opinion, when it is urged as au- thority here, is th:it it was made in exposition of a clause in- serted in the Constitution of New York in eighteen hundred and forty-six — an express litnitation upon the power of the Legislature — and that there is no pi'ovision in our Constitu- tion similar in ciiaracter. In the absence of such a constitu- tional provision in New York, the Court of Appeals must have held, upon well known rules of constitutional construction, that the Legislature had the power to pass an Act to raise revenue, without either stating the object for which it was to be raised or fixing the rate. THE POWER TO LEVY A TAX MAY BE DELEGATED. But, may it please the Court, much has been said upon the question of delegation of the legislative power. The power of taxation is not strictly a legislative jDower. The power in Eng- land was exercised by the Crown, and the Judges of England agreed, that under the English Constitution the power was vested in the Crown. All powers which the Legislature exer- cise are sovereign powers, but it exercises many powers that are not purely legislative. It exercises all the powers which in England were vested in the Crown and in the Parliament, except such powers as are incompatible with the theory of a republican form of government, and except such powers as have been vested in the Federal Government, or by the State Constitution in other departments of the Government, or have been reserved to the people by that instrument. It has the power to create corporations; which never, in England, was considered, before the Kevolution, a legislative power. It exer- cises the right of eminent domain, and many other powers which are not legislative in their character; and while it may be true that the law-making j^ower cannot be delegated, yet it has been ably argued that the powers not purely legislative may be delegated, and we know as a fact, that they have been delegated since the formation of the first State Governments in America. The Chief Justice, in his dissenting opinion in this [ 36 ] case, declares that the taxing power must be exercised by the Legislature, and can in no event be delegated. This declara- tion is at war with the histor}', not only of our own State Gov- ernment from its first organization, but at war with the history of every State Government in the Union. The fact is, the taxing power has always been delegated. In this State, the Legislature has constantly delegated the power. Municipal corporations are created with power to tax. School districts and road districts are created with the power to tax. In each instance, the tax is not fixed by legislative enactment. In some cases, it is true, there is a limitation upon the power, but in others, there are none. Boards of Supervisors have had the right, in some counties of the State, to levy any rate of taxa- tion for county purposes that they saw proper. The Common Councils of cities have exercised the same power. The Trus- tees of school districts and of road districts have always exer- cised this power. And yet Mr. Coolej^ says, "it is as true of the political divisions of the State, as it is of the State at large, that legislative authority must be shown for every levy of taxes." (Cooley's Const. Lim., p. 518.) As an answer to these facts, Ave are told that the Constitu- tion gives to the Legislature the power to create municipal coi'- porations, and to divide a State into counties. In reply, we say the Constitution gives to the Legislature no power whatever. It is a limitation upon the power of the Legislature. The Legislature maj' do any thing which the Constitution does not prohibit. The limitations of the Constitution upon this subject are found, first, in Article IV, section 31, which provides that corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. Sec- tion 37 of the same Article, makes it the duty of the Legisla- ture to provide for the organization of cities and incorporating of villages, and to restrict their power of taxation, etc. Section 4 of Article XI, provides that the Legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable through the State. These are limitations upon the power of the Legislature. Without any mention in the Constitution, the Legislature would have the power to establish corporations by special [ 37 ] enactment, ov under ii;enei':il laws, tlie jwwcr to establish county and town govcrnmetits; so that none of this power comes from the Constitution. The Constitution renders it obligatory upon the Legislature to form corporations under general laws. It restricts the power which they otlierwise would htive of forming them under special laws. It makes it obligatory upon the Legis- lature to establish a system of county and town governments, otherwise the Legislature might or might not, in its discretion, establish such governments. 80 that no argument can be made against the power of the Legislature to levy taxes in a particu- lar way for general and State purposes, that will not apj)ly with equal force to the levying of taxes for local purposes. Id the case of Bull v. Read, 13 Grattan, p. 86, before referred to, Mr. Justice Lee cites the opinion of one of the earliest and most distinguished of the Virginia Judges — Judge Pendleton — affirming the power of the Legislature to delegate the taxing power. The learned counsel for respondents have dwelt with delight upon the debates in the Convention which framed our State Constitution. They have sought in those debates an exposi- tion of the terms of that instrument. I have attempted to show how little importance can be attached to the published debates in a body of that character; but there is much weight to be attached to the action of a whole people under a Consti- tution; to the construction placed upon it after its enactment by those who were its cotemporaries. Courts have constantly recognized these as elements to be taken into consideration when we are endeavoring to ascertain the intention of that instrument. The first Legislature of this State met within four months after the adjournment of the Constitutional Con- vention. That very Legislature — composed in part of some of the most eminent men who were in the Convention; com- posed almost entirely of men who were here at the time of the adoption of the Constitution — saw no difficult}' in the way of the delegation of the taxing power. They created munici- pal corporations, and delegated to them the power and au- thority to levy taxes, and no one has ever questioned the right. Thepeojile have acquiesced in it; the Courts liave affirmed and reaffirmed the power. Now, we say, that twenty years of leg- [ 38 ] islative construction; twenty years of acquiescence in that con- struction by the people and the Court, settles the question, and that it is no longer open for argument. But the same power has been exercised in other States from the formation of the first State Government, and as fiir as we know, has never been questioned. The Legislature authorizes the ofiicers of the mu- nicipal corporations, and the officers of the counties, to levy taxes for municipal or county purposes. The authority for the levy is found, and must be found, in the Act of the Legislature; but that Act need not prescribe either the rate or the mode in which assessments may be made; but may leave these things to the discretion and the judgment of the tribunal upon which is conferred the power — if you please to call it power — to lev}^ the tax. The power of eminent domain — the right to take pri- vate property for public use, subject only to the limitation im- posed by the Constitution, 'that due compensation shall be made — has been delegated to every corporation within the limits of this State. It is a sovereign power, equal in magni- tude to that of taxation; standing upon the same footing; and yet the right to delegate it has never been questioned in this or any other State. And, in this connection, 1 may refer to what the gentlemen on the other side would perhaps call a delega- tion of the law-making power. An Act passed by the Legislature in eighteen hundred and fifty-one, granted to the miners of this State the right to form local rules and regulations, which should have the force and eftect of laws, under which rights of property have grown up — rules and regulations in the nature of laws. This Act has ever been respected by the Courts, nor do I know that the authority of the Legislature to make that delegation has ever been questioned. If these things be the delegation of the law- making power, we may pass through the laws of this State in a body and we will find them pregnant with delegations of the law-making power. If the Court does not affirm the constitu- tionality^ of the provision which authorizes the State Board of Equalization to exercise this discretionary jjower, the same principle by which it arrives at its conclusion will nullify and set aside tAvo thirds of the laws upon our statute books. [ 39 ] THE POWER CONFERRED IS NOT NOVEL. There is notliiny; now in the power which the Legislature hiis here attempted to confer upon the Jiourd. Bush's Digest (page 658, section 8(5) of the Eevenue Laws of Florida pre- scribes that the "Controller shall apportion upon the assessed valuation of the real estate, as advised and determined by the State Board of Equaliztition, upon the personal property of the several counties, as assessed by the Tax Assessor thereof, a tax sufficient to cover the appropriations made by the Legislature for the current year." The Legislature of the State of Florida, as does the Legislature of this State, under the theory of the present tax law, determines and fixes the amount which is to be raised for State purposes, whether it be one million, two million, or three million of dollars, and then directs the Con- troller, after he shall have ascei'tained the amount of taxable property in the State, to fix the rate of taxation at an amount sufiicieut to cover the appropriation. The Legislature does not direct him to make a mathematical calculation, from which he is to find the rate, but directs hin\ to fix a rate which shall raise the amount, and carry it, net, into the State Treasury; giving to him the very power which this Boanl is allowed here, viz: the power of allowing ibr deficiencies, and for costs of collection. In Iowa (Statutes of 18G0, page 115), the provisions are, that the Board shall determine the rate of State taxation to be levied and collected, which shall not exceed two mills on the dollar. Here is a limitation as to the maximum; but if the Legislature could leave anything to the discretion of the Board or officer, it could leave the whole matter, so that the principle is the same. In Georgia (Code of Georgia, 1867, page 161), the provision is, that the assessment shall be made by the Governor, that the amount of the taxes assessed shall not exceed the actual annual wants of the State Government, exclusive of the com- missions to collectors and receivers, and any other assessors — a provision similar, in every respect, to our own. In Illinois (Statutes of Illinois, by Gross, volume II, page 380), the provisions are, that "there shall be raised, by levying [ ^0 ] , a tax upon the valuation of the taxable property in the State, the following sums, hereinafter set forth. * * * ii^e Governor and -Auditor shall annually compute the rate of per cent, computing such rate per cent as will produce the above amounts, and no more." There the language used is, "will produce" — substantially the same as the language used in the Code. The object is to get so much money into the State Treasury. The Legislature leaves the Board to determine the amount of delinquencies and the cost of collection; a question it cannot determine itself. There are several States in which similar provisions exist, and we do not find that the power to vest the discretion given the Boards, or officers, has ever been ques- tioned, in any of the States. I have argued this question at length, because an import- ance has been attached to it by counsel and the Court. I have argued it for those reasons, and for no other; for I contend that the question is not presented in this case. THERE HAS BEEN NO EXERCISE OP THE DISCRETIONARY POWER CONFERRED. Let it be supposed, for a moment, that the provision which gives this discretionary power is unconstitutional, it does not, nor can it, affect the validity of the tax levy, for the State Board of Equalization has not exercised this power at all. The State Board of Equalization, as appears fi'om this record, well understood the fact that the last Legislature had made larger appropriations than were ever made before by a Legisla- ture in this State; that it made many appropriations, extraor- dinary in their character. It made an appropriation of $300,000 to the State University; of $175,000 to a Branch Insane Asy- lum; of $75,000 for the completion of the State Normal School building; an appropriation of $100,000 for the purchase of State Capitol grounds; and other extraordinary appropriations, aggregating nearly $1,000,000. If the tax had been levied by the Legislature, under the old revenue sj^stem, it would have exceeded one hundred and thirty cents on ever}- hundred dollars of taxable property in this State. The Board, recogniz- ing this fact, and that the rate of taxation must necessarily be [ 41 ] heavy — whether rightfully or wrongfully — endeavored to keep down the rate, preferring that the funtis in the State Treasury should fall short, rather than too great a burden should be imjjosed on the people. So far from exercising this discretion- ary power, they did not lovy a rate sufficient to raise all the money which the legislative appropriations required — even ad- mitting uU levies would be paid, and without costs of collec- tion. They kept clearly within the power Avhich respondents concede they may exercise: the right to make a mutlicinatical calculation, and thus to fix the rate; for the rate fixed is below, rather tlum above, what a purely mathematical calculation would require it to be — without allowing for tlelinquencies or costs of collection. Section 3713 of the Political Code, required the Board to raise $2,122,000. The Act of March 27, 1872, to provide additional accommodations for the insane (statute^ of 1871 and 1872, p. 680), in section 22, required the Board to raise $175,000 in addition to that required by the Code. The Act in relation to the State Normal School (statutes of 1871 and 1872, section IG, p. 672) required them to raise an additional sum of $75,000. The aggregate of all these sums is 82,372,000, which would, exclusive of the costs of collection, require a levy at the rate of thirty-seven and thirty-one one hundredths cents on each one hundred dollars, and, inclusive of the costs of collection, which is a matter fixed by law, estimated at seven per cent, require a levy of not less than thirty- nine and eighty-seven one hundredths cents. Then we have the Act of April 28, 1857 (statutes of 1857, section 6, p. 300) — an Act for the payment of equitable claims against the State of California, and to contract a funded debt for that purpose. Section 6, provides that ••' for the jiayment in twenty years of the principal and interest of the bonds issued under this Act, there shall be levied annually, until the bonds are paid, and promptly collected in the same manner as is or may be appointed by law for ordinary State taxes, a tax of thirty cents on each one hundred dollars of assessed value of real and personal property in the State, and the moneys de- rived from this fund shall be applied and set apart exclusively to the payment of the interest of the bonds herein provided 6 [ 42 ] and the final redemption of the pi'incipal of such bonds." The people and Legislature, in ratifying this Act, seem to have con- sidered that there might be a change in the manner of levying taxes, and, therefore, provided there should be levied in the same manner as is or may be provided by law for ordinary State taxes, a tax of thirty cents on one hundred dollars of the assessed value of the real and personal property of the State. Then the Act goes on to provide that the "faith is hereby pledged by the State of California for the payment, as herein jsrovided, of the bonds issued by this Act, and the interest thereon." And it further provides, that "a willful refusal or neglect by Supervisors, or other ofiicers, to levy or collect the taxes imposed by this Act, shall be a misdemeanor, and the person or persons convicted thereof shall be removed from office, and punished by a fine not exceeding one thousand dollars or imprisonment in the Count}^ Jail not exceeding six months, or both such fine and imprisonment." Now, this statute was ratified by the people of the State, and it is not within the power of the Legislature to repeal it, or to repeal any part of it. It becomes, in fact, part of the Constitution. Had a bond holder, under this Act, proceeded by mandate against the State Board of Equalization, to compel the levy of this thirty cents on the one hundred dollars, would there have been any answer? The Legislature has never attempted to repeal this law. Had it attempted to do so, the attempt would have been a vain and idle act. Here, then, we find that thirty cents must be added to the thirty-nine and eighty-seven one hundredths dollars we have already computed. Again, the Act of April, 1860 (statutes April, 1860, section 6, p. 352), which is similar in its character, provides for the levying of twenty-five cents on the one hundred dollars, making, by absolute provisions of law, a sum total of seventy-one and twelve one hundredths cents on the one hundred dollars to be levied by this Board; or, deducting the percentage allowed in this estimate for the costs of collection, if that is not to be included, we have sixty- eight and fifty one hundredths cents, which, under the laws of this State, the Board could have been compelled b}^ a mandate to levy — because they had no discretion in the matter. Now, then, so far from this Board having exercised this discretionary [ 43 1 power, these laws show that the levy is eighteen and fifty- two one hundredths cents less than the statutes require. The Legishxture, in adopting the Code, did not intend to re- peal the funding Acts in question, but on the contrary, out of an abundance of caution, expi-essly continued tliem in force. (Political Code, Sec. 19, Subd. 3.) JNow, I ask, in view of these facts, how can the levies of this year be assailed; because this discretionary power was, by law, vested in the Board? Whether it be constitutional or unconstitutional is no question for the Court to determine in this case, for the power has not been exercised. But, we are told by the learned counsel on the other side, that if we have levied too small an amount, the whole levy falls; or, in other words, that unless a party is re- quired by the officer to pay all which the law requires him to pay, he cannot be required to pay anything. Let us put an apt illustration. Supjjose that the Legislature of the State had fixed the rate of taxation, for State purposes, at fifty cents on each one hundred dollars; sup2:)ose that, in the County of San Francisco, the Auditor, instead of carrying it out fifty cents, had carried it out twenty-five cents — could the party who should have been taxed at the rate of fifty cents, and who is, in fact, only called upon to pay twenty-five cents by reason of this clerical error — could ho have involved the aid of a Court of equity? If so, uj^on what principle? lie is losing no right; the officers of the law are not seeking to take from him more than the law requires. He is benefited rather than injured by it. Suppose that Judge Belcher were to exe- cute a mortgage to my friend Colonel Hoge, to secure the sum of ten thousand dollars; that, on default of paj^ment, Colonel Hoge should institute a suit, and foreclose the mortgage, and a judgment should be ordered from the bench, for the full sum; that the Clerk, through mistake, should enter a judgment for five thousand dollars. Now I can see how Colonel Hoge might be heard to com^ilain, but I cannot conceive upon what principle Judge Belcher could invoke the aid of a Court of equity to set aside the judgment. Yet the facts in the sup- posed case are identical with the one before the Court. We have this state of facts presented here — parties coming into Court asking to be relieved from the burdens of taxation, be- [ 44 ] Cause the officers of the h^w are not seeking to collect the amount they are authorized to collect, but a less sum. If there is anything in this objection, this Court may correct it. If the Auditor of San Francisco has not cai-ried out the amount of taxes at the rate of sixtj'-eight and fifty-two one hundredths cents on the one hundred dollars, this Court may direct him to, and may, at the instance of these parties who are complaining, at least fix the amount at that required by law. But I imagine that, however much the State may complain — however much its bond holders may complain — a Court of equity will not listen to a complaint of that character from the parties who are not taxed enough. REVENUE SYSTEM IS GENERAL. The next proposition which I shall consider is the objection taken by counsel on the other side, that the provisions of the Code in relation to the revenue do not apply to the City and County of San Francisco. Chief Justice Wallace said that the Court, as then advised, were satisfied with the former argument of counsel upon the point, and that the provisions of the Political Code in relation to revenue do apply to the City and County of San Francisco. ARE SOLVENT DEBTS SUBJECT TO TAXATION? We come now to the consideration of the next point: Are solvent debts subject to taxation? We maintain the affirmative of this proposition, and rest our arguments upon the trinity of the law — principle, reason, and authority. The principle is — that all property must be taxed; the reason — that otherwise the burden of taxation might fall upon the few; the authority — the uniform practice in this State and in our sister States, and the adjudged cases in this State. All property must be taxed. This is the mandate of the Constitution, a provision of the fundamental law, beyond the reach of legislative enactment. Everything falling within the definition of the word " prop- erty," must be taxed. A solvent debt, being a chose i)i action, falls within every received definition of that term. Property is the right to enjoy a thing — to use, to dispose of it, as the owner pleases; providing he makes no use of it prohibited by C 45 ] law. The owner of a solvent debt possesses all these rights. He may use, enjoy, or dispose of it, as he pleases. The law universally treats solvent debts as property. They arc the sub- ject of sale and purchase; they are subject to execution. They pass as assets into the hands of the administrator. Checks, drafts, notes of solvent banks, have become the great medium through which commerce is carried on, and have been nearly universall}' substituted in trade for the precious metals. A debt due from a solvent debtor to a creditor nuiy be used in trade and commerce, in precisely the same manner that gold and silver can be used. The word "property," fountl in sec- tion 13, Article XI, of the Constitution, is used in that section in its ordinary and popular sense. The same word occurs in other sections of that instrument; and it is a well-settled rule of constitutional construction, that it must receive the same definition in each of the sections in which it occurs, unless there is something in the context in one section showing that it has a different meaning in that section from what it has in another. In Article I of the Constitution, it is declared, all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, and acqiairing, possessing, and protecting property, and pursuing and obtaining safety and happiness. It would require no argument to prove that the word, as used in this section, includes not only real estate and movable property, but everything acknowledged or admitted to be property by the jieople of civilized nations. It could not be contended, in the face of this declaration, that a man has not the same right to acquire, j^ossess, and protect choses in action as property of any other description. In section 8 of the same Article, it is provided that " no per- son shall be deprived of life, liberty, or property, without due l^rocess of law; nor shall private property be taken for public use without just compensation." Would the Government have a right arbitrarily to seize a solvent debt or to confiscate a State bond, because neither are property? Yet this would follow, unless choses in action are included within the meaning of the word property. [ 46 ] Section 14, of Article XI, declares that " all property, both real and pei'sonal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift or descent, shall be her separate property." Do the bonds, promissory notes, or other solvent debts, earned by, or belonging to the wife before marriage, or afterwards acquired by gift, devise, or descent, become her separate property? Certainly not; unless the word is broad enough to receive the interpretation which we place upon it. Section 17, of Article I, declares that "foreigners, who are, or who may hereafter become, bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoy- ment, and inheritance of property, as native-born citizens." When, in the case of The People v. Eddy (January Term, 1872), the same doctrine was contended for as respondents contend for in this case, Mr. Justice Ehodes, in relation to this section, observes: " The foreigner who, after having been protected by the Con- stitution in the enjeyment of his lands, should find that he is liable to be plundered of the bill of exchange which he had received on his sale of the land, because the bill was only a chose in action — only the evidence of a debt — and, therefore, not under the protection of the Constitution, might well con- clude that those who framed that instrument, instead of being statesmen, as we have been accustomed to regard them, were only savages, whose untutored minds were incapable of enter- taining the idea of any property except such as they could both see and touch." We have seen that in each of these sections the word "prop- erty" must be construed to include choses in action, or the sections would fail of their very object. Coming now to Sec- tion 13, Article XI, we find not only the word "property " uaed in this section, when it declares that property shall be taxed in proportion to its value, but the framers of that instrument did not stop, as in the sections above recited, with the mere use of the word property. As if fearing that a more limited construc- tion might be attempted, they used the phrase " all property in this State shall be taxed." If, in the sections above cited, the word "property " must be construed to include choses in action, L 47 ] (Iocs it not follow, us a logical necessity, that the phrase " all property" must include choses of action ? If aii}' illustration of the reasoning for which we contend be necessary, the case of the Savings and Loan Society presents that illustration. "We find from the testimony in this case that the corporation has a capital stock of five hundred thousand dollars; that since its organization they have taken from the moneys of the tlcpositors the further sum of three hundred thousand dollars, and made of it a reserve fund — which is also the property of the stock- holders — thus adding sixty per cent to their original capital. During all this time, as far as we can discover from the testi- mony, the dividends to the stockholders have amounted to the enormous sum of twenty-two per cent per annum. And now it is claimed that a business so enormously productive should be exempt from taxation. Not one of the stockholders has been taxed for his shares of the stock; not one of the de- positors has been taxed for the money deposited in the bank, and as far as the record discloses the facts, not a single person owing a solvent debt to the bank has been taxed ujjon the money loaned, which is the basis of the debt. It is said that by some inexorable law of trade the borrower pays the tax upon this money. If this be so, why do we find the lender complaining? If it be true, as asserted, that the defense in these cases is made in the interest of the peo^jle at large; in the interest of the borrower and not of the lender, why, I ask, why is it we find the voice of the peoi^le against the policy of this exemption? The result of the decision which exempts this property from taxation is to cast a double burden upon the small proj^erty owner. Last year, in the City and County of San Francisco, the State and county taxes aggrega- ted the sum of one hundred and fifty cents on the one hundred dollars of the taxable property. Then, in making the lev}'', solvent debts were taken into the computation of the amount of the property. This year, under the effect of the decision which this Court has made, solvent debts have been excluded from that computation, and the taxes imposed on property will exceed two hundred cents on each one hundred dollars worth of property. Instead of the borrower paying the taxes upon the proj)erty exempted by the decision, the deficit which it [ 48 ] leaves is made up b}' the bui'dens imposed upon the small jjroperty owners. The authority upon which we rely in support of the proposition that solvent debts are taxable, is: First — The uniform practice of this State, from the adoption of its Constitution down to the present time. The first Legisla- ture which assembled in this State, in the very first revenue law which was enacted (Statutes of 1850, page 135), provided that this kind of property should bear its proportion of the burden imposed for the support of the Government. In every revenue law enacted in the State, down to the adoption of the Code, solvent debts, moneys loaned and secured by mortgage, have been recognized as property within the meaning of that term, as used in the Constitution, and as such, in some form or other, have been subject to taxation. We have, as authority in favor of our views ujjon this subject, the cotemporaneous con- struction placed upon the Constitution by the fii'st Legislature which assembled. We have the construction placed upon it by every Legislature that has since assembled. Twenty years of acquiescence in this construction bj^ the law-making jDower, and by the people. It is a well settled rule of constitutional construction that terms and phrases in the Constitution of one State, which have been borrowed from the Constitution of other States, should, in the absence of an apparent intention to the contrarj^, be construed as the same terms and phrases were construed by the Courts and Legislatures of the State from which the provisions were bor- rowed. Turning now to the Constitutions of the various States, older in point of time than our own, we find that in Arkansas the constitutional provision is, that all real and personal property shall be taxed according to its true value in money. Under this provision solvent debts have always been taxed in that State — have been regarded as property within the meaning of the Constitution. The provision as to uniformity is also found in the Constitution of Arkansas. In Florida the constitutional provisions require uniformity and equality in taxation. Under this constitutional provision, debts due or to become due, hav- ing been included within the term "property," are taxed as such. The same is true, both as to the constitutional provision [ 49 ] and the legislation under it, in the States of Illinois, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Nebraska, Oregon, Tennessee, South Carolina, Texas, Virginia, and West Virginia. In Kentucky there are no constitutional restrictions in this re- spect, but solvent debts are recognized as property and taxed as such. The same ma}^ be said of Maine, Iowa, Connecticut, Massa- chusetts, New York, Maryland, New Jersey, New Hampshire, Missouri, Wisconsin, Alabama, Ohio, and Vermont. As far as we are aware the validity of the legislation in none of the States referred to has ever been assailed, either upon the ground that solvent debts were not propei'ty, subject to taxation, or that the rule which requires uniformity and equality was vio- lated by such taxation. We have here in support of our posi- tion that solvent debts are property, subject to taxation, and that the taxes levied upon them does not violate the rule which requires equality and uniformity, the practice of nearly every State in the Federal Union. The power and right of the Legislature to impose this taxa- tion was challenged in the case of The People v. McGreery, 34 Cai., p. 446. The facts in that case were that McCreery loaned to one Lick a large sum of money, taking his own security by mortgage upon property situated in the City and County of San Fran- cisco for repayment thereof. The solvent debt so secured was assessed to McCreery. and the payment of the taxes due there- upon was attempted to be enforced. One of the defenses in- terposed rested upon the assumption that the tax levied upon the dolveut debt and the tax levied upon the property mort- gaged to secure the payment of that debt, w^as double taxation. "But," said the Court, in answer to this position, "it is ap- parent that the question whether the assessment against the defendant, of the sum of money loaned, under the existing cir- cumstances, amounts to double taxation, does not legitimately arise uj^on the facts of the case. While the defendant held the money, which he afterward loaned to Lick, he was taxable for that sum, and when he passed the money to Lick, upon making the loan, and took Lick's obligation to pay the same, secured by a deed of trust or other adequate security, he certainly did [ 50 ] not divest himself of so mneli property. He possessed the same amount of propertj^ that he held before the loan was made. Its form only was changed. And so in all cases of loans. The lender owns the debt, and the debt is property, its value depending on the sufficiency of the security, if there be security, and the ability of the borrower to pay the debt. The holder of the debt is taxable upon the value of the debt. If the property of the borrower is assessed at its full value, without any deduction for what he owes, whether its payment is secured by any lien or charge upon his property or not, perhaps he may complain of undue or double taxation; and it seems that there is no difference, in this respect, whether the lender holds only the promise of the borrower, which may be enforced against his property by proper legal proceedings, or has a lien upon his real or personal propei'ty by judgment or the levy of an execution, or whether he has a specific lien by virtue of a moi'tgage, pledge, deed of trust," etc. The case of The People v. McCreery is on all fours in this respect, with the ease at bar, with this excejDtion : that in the case of The People v. McCreery it was shown that the projjerty mortgaged had been taxed at its full value and the taxes paid thereon. If, in that case, McCreery owned the property, and the debt was property, and for these reasons a proper subject of taxation, so, in this case, the solvent debts owing to this cor- poration are its property and the subject of taxation. lu the case of The People v, McCreery, the opinion in the first instance was written by Mr. Justice Erodes and concurred in by Jus- tices Curry, Sawyer, Shafter, and Sanderson. Pending the petition for rehearing, the term of Justice Curry expired, and Justice Shafter, by resignation, ceased to be a member of the Court. Their places were supplied by Justices Crockett and Sprague. Upon the petition for rehearing, the opinion was written by Justice Crockett and concurred in by all of the other Justices. Says the learned Justice (p. 459): " Counsel have urged, with much earnestness, that this pre- sents a case of double taxation. The argument is, that the owner of the mortgaged premises is taxed to the full value of the property, without any abatement for the mortgage debt, [ 51 ] while the hohler of the mortgage is also taxed for the full amount of the debt. In other words, it is insisted that if the owner of the mortgaged property is assessed for its full value, the debt secured by the mortgage, Avhich is a lien on the prop- erty, and to that extent represents the same value, cannot be taxed without creating a case of double taxation. But if that be the result, it is obvious it is only the mortgagor who can complain. It is his property, if any, which is doubly taxed, and not that of the mortiraijee." Thus the Court decided, in effect, the very question which is presented in this case. If there is any double taxation here, it is the tax imposed upon the borrower and not upon the lender. The lender owns but a single piece of property — the solvent debt — and that debt is taxed but once; and he will not be heard to complain that the property of the debtor has been doubly taxed. The same question was presented in the case of The People v. Whartenbury, 38 Cal., p. 463. In that case the defendant, assessed for the taxes in contest, was a resident of Nevada County, and was the holder of certain unsatisfied mortgages made hy persons residing in the City and County of San Fran- cisco, upon real estate situate in said city and count}^ to secure an indebtedness to the defendant for money loaned and let at interest, amounting in the aggregate to one hundred and twelve thousand dollars. The defendant was assessed in due form in Nevada County for taxes due upon said sum, and payment hav- ing been refused, an action was brought to enforce the collec- tion. The defense set up was: First — That the property, included in the mortgages, was duly assessed in the City and County of San Francisco, at its full value, to the several mortgagors — thr owners thereof — prior to the assessment to the defendant in Nevada County. A demurrer to the answer was filed, which was sustained by the Court, and the defendant, having declined to amend, final judgment was entered for the plaintiffs. The opinion in the case was delivered by Judge Crockett, who, on 1). 404, says: "The fact that the mortgaged property was assessed at its [ 52 ] full value to the mortgagors, evidently presents no defense to this action. This point was expressly decided in The People v. McCreery, 34 Cal,, p. 459. In that case, we held that under the facts stated, if any one could complain of double taxation, it was the mortgagor and not the mortgagee; but we expressed no opinion on the point whether it presented a case of double taxation, even as against the mortgagor." The case of The People v. McCreery was also affirmed in the case of The People v. The Black Diamond Coal Mining Company, 37 Cal., p. 54, and in the case of The People v. Gerke, 37 Cal., p. 228. Now, these cases are full and decisive upon this prop- osition: That, if A. loan money to B., and the repayment of the money is secured by a mortgage upon B.'s property, a tax upon the debt so secured does not violate the rule which re- quires uniformity and equality in taxation. These cases are full to the point, that if there is double taxation it is a tax which is imposed upon the property of the mortgagee, and that he alone can complain. The point whether a tax levied under this state of facts, upon the property of the mortgagee, would, as in his favor, constitute a case of double taxation, was not decided, for it was not involved in either of the cases. Nor is that point involved in the case at bar. In Lick v. Atistin (April Term, 1872), the question was presented whether the mortgagee, in such a case, was subject to double taxation. Lick was the debtor of McCreery; the debt which he owed was secured by a mortgage upon his property in the City and County of San Francisco. He alleged in his comj^laint, filed for the purpose of enjoining the Tax Collector from selling the property, that the real estate, when assessed, was subject to certain mortgages; that the Assessor was informed of the fact, but that he assessed the property without making any deduction on account of the mortgages. The question pre- sented was, whether the facts made a case of double taxation. The Court say: "It is not alleged that the valuation of the Assessor, of the several parcels of land, was in excess of their real value. It is not, therefore, double taxation in view of the real value of the land. * * * The only plausible ground assumed by the [ 53 ] plaintiffs is, that real estate, subject to a mortgage, should bo assessed at its value, less the amount of the mortgage debt; because the excess, if any, of the value of the land over the mortgage debt, is the true value of the mortgagor's interest in the land. The Constitution and laws might have been so framed as to work that result, but the}' were not. The Consti- tution, section thirteen, Article XI, provides that all i^roperty shall be taxed in proportion to its value; and the revenue law provides that the Assessor shall ascertain the value of each parcel of jiroperty, etc.; but it is nowhere provided that the aggregate amount of the taxpayer's debts shall be deducted from the valuation of his property; nor that his indebtedness shall be deducted from the valuation of any of his property, except for his solvent debts. Whether that provision of the statute is violated is not a question in this case; but assuming that the statute, in that respect, is violated, it clearly shows that the solvent debts of the taxpayer are the only property for which he is permitted to deduct his indebtedness." The decision in that case was written by Justice Ehodes, and concurred in by Justices Niles and Belcher. Justice Wallace, having been of counsel in the Court below, did not sit in the case. We have, in these decisions, the proposition clearly established, that solvent debts are property within the meaning of that term as used in the Constitution; and that a tax upon a solvent debt, secured by mortgage upon real prop- erty, and a tax upon the property so mortgaged, do not consti- tute, in either event, a case of double taxation. But the au- thorities upon this subject do not stop here. On the first of April, eighteen hundred and seventj'', the Legislature of this State passed an Act entitled " An Act to prevent double taxa- tion " (Stats, of 1870, p. 584), section one of which provides that "no mortgage or lien given and held upon real estate, or the debts thereby secured, or pi'omissory notes secured by mortgage, shall be assessed upon the books of any Assessor, State, county, or otherwise." The Legislature, in the passage of this Act, intended, by enactment, to reach the very point arrived at by the Supreme Court of this State in the opinion ali'cady rendered in this case. It endeavored to exempt from [ 54 ] taxation solvent debts secured by mortgage. Notwithstanding this Act stood upon the statute books, the Assessor of the County of Nevada assessed to one Eddy certain solvent debts due to him, which were secured by mortgages upon real estate. An action was brought for the recovery of the tax so assessed; the defendant demurred to the complaint, on the grounds that the property was not subject to assessment or taxation under the laws of the State, and that the assessment of such properly is i^rohibited b}^ law. The demurrer was overruled, and the de- fendant apjjealed. On the appeal, the Supreme Court, at its January Term, eighteen hundred and -seventy-two, rendered a decision, in which the Court held, in effect, that solvent debts were property and subject to taxation by virtue of constitu- tional provisions, and that it was not within the power of the Legislature to exempt them from taxation; thus affirming the judgment of the Court below. The opinion in this case was also written by Justice Ehodes, and concurred in by Justices Crockett and Wallace. Justice Niles, having been of coun- sel, did not sit in the case. In this case a rehearing was granted, and at the April Term, eighteen hundred and seventy- two, the Court filed an opinion, adhering to its former opin- ion; Justices Ehodes, Crockett, Wallace, and Belcher, concur- ring; Justice NiLES being disqualified. The various cases which I have cited as authority were ably and elaborately argued by many of the most eminent members of the profession. There is no point that has been presented in the case at bar, no argument that has been advanced in sup- port of the position contended for by respondent's counsel here, but what was presented and made in each of the cases referred to. They were decided after mature deliberation, in full view of all the provisions of law that could be brought to bear upon the questions presented, and must be considered as authority of the very highest character. Nine eminent Judges, including every member of the present Bench, have added the weight of their official positions and professional acquirements to the principles laid down in those cases. If the questions disposed of can now be considered open questions in this Court, we must set it down that authority goes for naught, and that the decision of this Court, solemnly made, is but a challenge to L 5.^ ] the next comer. It may well bo donbted wlicthcr such an array of authority can be presented in lavor of any other principle ever laid down by this Court. STARE DECISIS. Said BuLWER, J., in 1 East, 409: "The rule stare decisis is one of the most sound in the law." Said Chancellor Kent (1 Kent, 476): "If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correct- ness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implic- itly followed. It is by the notoriety and stability of sucli rules that professional men can give safe advice to those who consult them; and people in general can venture with confi- dence to buy and trust, and to deal with each other. If judi- cial decisions were to be lightly disregarded, we should disturb and unsettle tlie great landmarks of property. When a rule has been once deliberately adopted and declaret^ it ought not to be disturbed, unless by a Court of appeal or review, and never by the same Court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing un- certainty as to the law." On this point. Sir William Jones has well said: " No man, who is not a lawyer, would ever know how to act; and no man who is a lawyer would, in many instances, know what to advise, unless Courts were bound by authority as firmly as the Pagan deities were 'supposed to be bound by the decrees of fate." If, upon one decision made upon solemn argument and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just exposition of the law, and to regulate their actions by it, what shall be said of three, four, or tive decisions, concurred in by every Judge [ 56 ] who comes upon the bench during a long series of years? The people of this State, resting upon the exposition given to the Constitution by these numerous cases, have, with but few exceptions, paid the taxes levied upon this class of property. Are we now to be told, at the instance of the few moneyed corporations in San Francisco who are bidding defiance to the laws, that the question is still an open one? If these decisions are not authority, if the question may be opened and argued from year to year, we may well ask, what lawyer will ever know how to act? What lawyer will know how to advise his clients? In the case of The People v. McCreery, the question was pre- sented to the Suj^reme Court, in part, by ex-Governor Haight. In The People v. Eddy, by such eminent counsel as S. M. Wilson, of San Francisco, and Niles Searles, of JS^evada County, and the point was decided against them. They had a right to suppose, and the people had a rignt to suppose, that the rule established in those cases was to be the law of the land, until changed by that power which alone can make or alter laws. The application of the rule of stare decisis to questions in- volving constitutional construction, is not a novel practice. In Seale v. Mitchell, 5 Cal., p. 401, it is said; *'In construing statutes and the Constitution, the rule is almost universal to adhere to the doctrine oi stare decisis. This is an adjudicated question, and the subject of its correctness is to us a sealed book." In the Iron Mountain Company v. Haight, 39 Cal., p. 541, it was said by Justice Wallace, in delivering the opinion of the Court: " We think that we are bound, by the gravest considerations of public order and security, at this late day, not to disturb the rule (of constitutional construction) so distinctly and authori- tatively settled, especially in view of the fact that during all this time the clause of the Constitution under consideration, with the interpretation thus put upon it by our predecessors, has remained unaltered by the people, though several important amendments to that instrument have in the meantime been adopted." [ 57 ] The construction which the Court held binding upon it in that case, was clearly, almost admittedly, erroneous, and was founded upon but a single case — the case of Price v. Whitman^ 8 Cal., p. 412. In Ex Parte Yale, 24 Cal., p. 241, the Court per- mitted a question of constitutional construction, which had been before passed upon, to be reargued, upon the ground that in the former case there was no record in this Court of the motion or proceeding upon which the former opinion was rendered — a clear implication, flowing from the language of the Court, that one decision would have been regarded as binding. In The Stockton and Visalia Railroad Company v. The Common Council of the City of Stockton, 41 Cal., p. 147, Justice Wallace, in delivering the opinion of the majorit}' of the Court, says, on page 178: "As we have already said, under the rule laid down by this Court in JVapa Valley Railroad Company v. Napa County, 30 Cal., p. 437, this legislative determination is conclusive upon this Court. It was there held that 'railroads concern the public interest as matter of legal judgment,' and that when the Legis- lature had determined that a particular road in fact concerns the public interest, its determination in that respect is not oi)en to be reviewed by this Court. Upon that authority," said the learned Judge, " we are precluded from any examination into the principal question which the respondent has argued here." Here is a full application of the rule stare decisis. Are we now to learn that if a determination in one case precludes the Court from any examination into the question, that four, five, or six determinations of a question leave it open to debate? In the same case, said Justice Crockett, in his concurring opinion, "with an unbroken line of decisions on this point (a constitu- tional point involved in the case), running through so long a period, and emanating from Courts of the highest authority in this country, it is now too late to inquire whether the question has been settled properly or otherwise." And Justice Sprague concurred in the decision in that case, upon the sole ground 8 [ SB ] that the question presented in the ease was no longer an open one. Justice Temple concurred, solely upon the ground that he regarded the questions involved as settled. He said: "I differ from much of the reasoning of my associates, and if the questions were new, should be inclined to agree with the respondent upon the main question discussed. To overturn the almost unbroken line of decisions now, however, would not establish a rule of decision, but would make an exception merely, in the current of authorities. It would shake the con- fidence of every one in the stability of judicial decisions, and would add nothing to the force of the limitations upon legisla- tive power." That a tax levied upon a solvent debt does not, as against the owner thereof, impose a double burden, is too obvious for argu- ment; the owner pays but one tax, and that upon a single piece of property, namely: the solvent debt. The question ought not to be an open one in this Court. Since the decision in The People Y. IfcCreery, the Constitution has been amended at least once by the people. They have acquiesced in the construction placed upon Section 13, Article XI, by this Court. To depart from a long line of decisions, deliberately made, would, to use the lan- guage of Justice Temple, " shake the confidence of every one in the stability of judicial decisions." I do not bebeve this Court will make that dej)arture. A COURT OF EQUITY WILL NOT EN.JOIN THE COLLECTION OF THE PUBLIC REVENUES, We come now to the consideration of the last point presented for argument: Has a Court of equity the right to enjoin the sale of property for taxes? Mr. Chief Justice Wallace — The Court, as at present advised, is with you on that point. Mr. Haymond — Then it will be unnecessary for me to present any argument upon the subject; and, so far as I am concerned, thanking the Court for the attention with which its members have listened to my remarks — necessai'ily extended — these cases are respectfully submitted for its consideration. UNIVERSITY OF CALIFORNIA, LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below Form L-» 23m-2, '43(3205) 5268 Haymond - X&~ Savings and 1873a loan socisty^ — V. Austin. UC SOUTHERN REGIONAL LIBRARY AA 000 562 372 HJ 3268 A6 1373a