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 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<z:> 
 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.
 
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