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index of the intention of the Convention as the words of the instrument they may frame. While the words of the section, as first proposed-'All lands liable to taxation in this State,' etc.-would indicate the intention to limit the power of the Legislature, where lands were the subject of taxation, the words of the section, as finally adopted-all property'-as clearly indicate the intention to limit the exercise of the taxing power, when applied to property of any description; that is to say: if the section, as first reported, limited the land tax to an ad valorem tax upon all lands, the section, as adopted, limited a property tax to an ad valorem tax on all property. And, even if the provision was intended to apply to lands only, and was inserted to quiet the fears of the native Californians, who owned large tracts of land, and were apprehensive that their lands would be made to bear an undue portion of the burden of supporting the State Government then about to be organized, if the power of exemption now contended for still remained with the Legislature, notwithstanding that section, then the pretense that the section would afford them protection was illusory and deceptive; for the Legislature would have the power, by exempting from taxation all other property, to cast the whole burden upon lands.
"The Court, in The People vs. Coleman, very truly say that if the position contended for is maintainable the Legislature would have no power to exempt from taxation the property of religious and eleemosynary corporations, nor by the same means to protect her own domestic interests, her agricultural, manufactures, mechanical employments, etc., or to relieve a 'meritorious class of citizens' of the burdens of taxation. These matters go to the policy of the section, but do not aid in its interpretation.
"The Court say: 'We cannot presume that a high, coördinate branch of the Government will ever be actuated by any other motive than a liberal, honest, and enlightened regard for the interest and welfare of the State.' If this is a legitimate argument in favor of the construction adopted by the Court in that case, it may be asked why the presumption is any more conclusive when the subject matter of legislation is taxation than when it is the creation of corporations, the division of the State in Congressional districts, the granting of a charter for banking purposes, or other matter, in respect to which the exercise of legislative power is limited or forbidden by the Constitution?
Whether the limitation of power in any particular respect was wise and judicious we do not undertake to declare, but it must not be forgotten that the Constitution is a limitation-not a grant-of power.
"TAXES ARE CHARGES IMPOSED BY OR UNDER THE AUTHORITY OF THE LEGISLATURE, upon persons or property subject to its jurisdiction. The power of taxation is a necessary incident to sovereignty, and under our system of government it pertains to the legislative department, for the levying of a tax is necessarily a legislative act. The tax must have its origin in a law, enacted for that purpose. As the power of the Legislature over the whole subject of taxation, including the property to be charged, the amount of the tax, the mode of levying, assessing, and collecting it, etc., is as ample as over any other matter that is the proper subject of legislative action, the Constitution must be examined, as before remarked, to ascertain what limitations, if any, are imposed upon its exercise. What is the import of the words: Taxation shall be equal and uniform throughout the State?' When the Legislature has established a rate of taxation for general State purposes, or to pay the funded debt, or for any or all of the purposes for which revenue is required, and, under the law, lands of one person, or situated in one county, are taxed at the same rate upon their assessed value as the lands of another person or those situated in another county, then it may be said that the taxation is equal so far as lands are concerned. But it may be safely said that no member of the Convention or elector who voted upon the question of the adoption of the Constitution ever heard of an instance in the United States where an ad valorem tax was levied, and the same species of property, owned by different persons or being in different counties, was charged with different rates of taxation; and it would not be reasonable to suppose that the Convention were providing against such an improbable violation of the rules of common honesty. But suppose A. owns land and B. owns a stock of goods, and an ad valorem tax is levied upon the land only-or suppose both A. and B. own lands or other property, but are pursuing different avocations, and the tax is levied upon lands only or upon the property of those pursuing A.'s avocation, can it be said, in either case, that the taxation is equal? The inequality is so apparent that argument cannot make it more manifest.
"But if it is still contended that taxation is equal, when the same species of property, wherever it may be, is charged with the same ad valorem tax, the next clause of the section, 'All property in this State shall be taxed in proportion to its value,' is a complete answer to the position. Construction or interpretation can scarcely make the meaning of the words more apparent, for there is no word in the clause of ambiguous or doubtful import. The meaning of taxation must be kept in view, and that is: a charge levied by the sovereign power upon the property of its subject. It is not a charge upon its own property, nor upon property over which it has no dominion. This excludes the property of the State, whether lands, revenues, or other property, and the property of the United States. That all property in this State' does not mean either all that the Legislature may designate, or all except such as the Legislature may exempt, is as self-evident as the axiom that the whole is greater than a part.' No process of reasoning or demonstration can make it plainer. Had the Convention intended that the property liable to taxation should be all property except such as the Legislature might exempt, the section of the Constitution of Texas, from which ours was taken, was before them, containing the provision adapted to that purpose, and the omission to copy that also, would be unaccountable.
"If the power exists in the Legislature to exempt growing crops, mining claims, and other property mentioned, the exemption may be carried still further, until property of one class is made to bear the whole burden of taxation. The exemption, so far as it includes private property, is in plain violation of the command of the Constitution.
"Does the attempted exemption of certain species of property from taxation render the whole Revenue Act void? We are of the opinion that such result does not ensue. The exemption being void, it must be stricken from the Act, and the Act must be read as if that provision had not been inserted. The Act of April 2d, 1866, when the illegal provision is expurgated, prescribes that an ad valorem tax of one dollar and five cents, etc., is hereby levied and directed to be collected and paid for State purposes upon the assessed value of all property in this State.' It is therefore the duty of the Assessors, under the Act, to assess all property in their respective districts, counties, etc., subject to taxation. This comprehends all property except that which may be denominated, generally,
public property. The omission of the Assessor to assess a parcel of property, under a misapprehension of the law, will not invalidate the assessment list. In that respect it has no greater effect than the casual omission of a parcel of property through a mistake of fact.
"It is scarcely necessary to say, that with the policy of the provision of the Constitution we have been considering, or of the several Acts of the Legislature attempting to create certain exemptions from taxation, we have nothing to do; or to add that our inclination accords with our duty in attempting to uphold the Acts of the Legislature if they are not clearly in conflict with the Constitution. For the learned Justices who united in the decisions in The People vs. Coleman and High vs. Shoemaker, we have great respect; and we would readily and willingly yield to the authority of their decisions, in cases where the construction of a constitutional provision is involved in doubt. But when the language of the Constitution is, as we find it in this section, clear and free from ambiguity or doubt, we must yield to the Constitution as the paramount authority.
"Judgment reversed and the cause remanded for a new trial."
[NOTE. The foregoing opinion was rendered at the October Term, 1867.]
On petition for a rehearing, Justice Crockett, 34 Cal., p. 459, et seq., briefly disposes of the motion by denying it, using with regard to the oft-quoted Sec. 13 of Art. XI, State Const., the following language:
"In construing this clause-taxation shall be equal and uniform throughout the State; all property in this State shall be taxed in proportion to its value, to be ascertained as directed by law '-no one can doubt that the general object which it was designed to accomplish was equality and uniformity in taxation. But there has been considerable diversity of opinion as to the nature and extent of the equality and uniformity intended to be established. In The People vs. Coleman, 4 Cal., p. 46, the Court held that the Legislature is not prohibited from discriminating between different classes of property or citizens; nor from exempting entirely from taxation such classes of either as it may see fit, unless it appear that the Legislature imposed a tax 'designedly operating unequally;' or unless a want of uniformity in its operations was apparent upon its face,' in which event, it admits, it would be the duty of the Court to pronounce the Act unconstitutional.
With all due respect for our predecessors, we cannot subscribe to this reasoning. We are unable to perceive that it is at all material whether the Act designedly' operates unequally, or whether its want of uniformity in its operation is apparent on its face. If a tax be grossly unequal or practically devoid of uniformity in its operation, it is wholly immaterial whether it is the result of design, accident, or inadvertence. Its validity cannot depend upon the motive which prompted it, nor upon the circumstances attending its enactment. If it be obviously an unequal tax and not uniform in its operation, it violates the Constitution, whatever may have been its origin. Nor can we subscribe to the proposition that the Legislature, at its discretion, may discriminate between different classes of property or citizens in the imposition of taxes. If it can tax one class of property or citizens at a particular rate and another class at a different rate, or omit to tax one or more classes at all, there is no limit whatever to its discretion in these respects. It may impose the whole burden of taxation upon a particular class, to the exclusion of all other classes. It may collect the whole revenue of the State from merchandise alone, or from a particular class of merchandise. It may tax lands or mines, and except the capital of banks, trade corporations, and all dealers in money or merchandise. In short, it may establish a system of taxation which would be utterly ruinous to a certain class or classes of citizens, whilst other more favored classes would be partially or wholly exempt. It is no answer to this argument to say that if the Legislature should so grossly abuse its trust, the remedy is to be found at the ballot box. The same answer would apply with like effect to any other violation of the Constitution by the Legislature. The functions of the Courts in respect to unconstitutional legislation are useless if the ballot box is to be appealed to as the only remedy. Nor are we without some practical illustrations of the value of this constitutional provision. Heretofore the mining interests have predominated in the legislation of this State, and mining claims have consequently hitherto escaped taxation. But it may be that at some early period the agricultural and commercial interests will exert a controlling influence in our legislation; in which event, except for this wise constitutional limitation, the burdens of taxation might be chiefly imposed on the mining interests, to the exoneration of other property justly liable for its share of the taxes. The subjects of taxation would be