CALIFORNIA. 



87 



Hint all property shall bo taxed, and 



the opinion of tho court, maintained that u evi- 

 dences of debt and tilings in action " could 

 not be regarded as property within the mean- 

 ing of the constitution. Ho said : 



That causes of action are dependent on too many 

 contingencies to be capable ol appraisement which 

 shall accord with any rule of equality or uniformity 

 of value, is too plain for argument. Vet the con- 

 stitution requires that all property shall be assessed 

 on the ad valorem principle by local assessors. All 

 property which is visible and tangible is capable 

 of such assessment ; choses in action are not. Tho 

 word " property " has been used in our language in 

 several senses; but in the case in hand we cannot 

 be limited to the meaning given it by the code, 

 but may also and such is our duty look for its 

 meaning in tho constitution. The constitution 

 provides that no property, as property, shall be 

 taxed, except such as is capable of a valuation by 

 the assessors, which shall be ratably equal and uni- 

 form with that affixed to all other property. . . . 



It is property in possession or enjoyment, and not 

 merely in right, wnich must ultimately pay every 

 tax. The Legislature may declare that a cause of 

 action shall be taxed, but a cause of action cannot 

 pay the tax ; and this because it has, and .can have, 

 no value independent of the tangible wealth out of 

 which it may be satisfied. . . . 



He who has the property in possession must be 

 taxed on its value, and the value once taxed cannot 

 be relaxed without a violation of the constitutional 

 provision that each value shall be taxed proportion- 

 ately to the sum of all the values. 



The sovereign power of tho people employing 

 the prerogative of taxation regards not the claims 

 of individuals ou individuals, but deals with the 

 aggregate wealth of all ; that which is supposed 

 to be unlimited is here limited by an inexorable 

 law which parliaments cannot set aside, for it is 

 only to the actual wealth that governments can re- 

 sort, and, that exhausted, they nave no other prop- 

 erty resource. This is as certain as that a paper 

 promise to pay money is not money. . . . 



The facts of the present case do 'not present any 

 question as to the power of the Legislature to re- 

 quire the payment of a specific sum by way of 

 license for the transaction of a practical business, or 

 the performance of particular acts. The views 

 above expressed remove the objection heretofore 

 resorted to, that the creditor cannot complain if the 

 debtor shall pay a double tax. The creditor can 

 always complain, because the credit should not be 

 taxed at all, inasmuch as it has no independent value, 

 and therefore cannot be taxed in proportion to such 

 value (as pnrt of the aggregate of value) in the man- 

 ner required by the constitution. 



Jndge Miles concurred fully in Judge McKin- 

 stry's views. Chief -Justice Wallace and Judge 

 Crockett submitted separate but concurrent 

 opinions. Chief-Justice Wallace said : 



This provision of the constitution established 

 the cardinal rule that property taxation in this State 

 should always be imposed upon an ad valorem, as 

 contradistinguished from a specific basis, and may 

 be paraphrased thus: "All the actual wealth within 

 this State shall be equally burdened with the sup- 

 port of the government." "That " property" as here 

 employed in tho constitution, and "actual wealth" 

 as used in the paraphrase, are synonymous, and that 

 each of them alike excludes mere credits, is believed 

 to be demonstrable. In the nature of things, both 

 the scale of public expenditure indulged and the 



consequent degree of taxation necessary for its sup- 

 ply have reference to the actual aggregate wealth of 

 the political community to which government looks 

 for support. These habitually vury as the State in 

 popularly said to be comparatively rich or compara- 

 tively poor. 



The Legislature, in making up the budget, roust 

 necessarily, therefore, look to the aggregate minium 

 of actual wealth in the hands of tne people, and 

 borne upon the tax-rolls. This constitutes the ca- 

 pacity to pay, which it is always indispensable for 

 the statesman to consider. And in considering it, 

 how, it may be asked, can it be supposed that the 

 aggregate wealth of tne people their actual capaci- 

 ty to pay taxes is at all made up of credits the 

 mere indebtedness owing by individual members of 

 the body politic to others of its members ? 



An answer would perhaps most readily be found 

 in supposing, were such a thing possible, that the 

 entire tax-rolls exhibited nothing but such indebted- 

 ness. Taxation attempted under such circumstances 

 would of course be wholly fanciful, as having no 

 cctual basis for its exercise. 



It must result, therefore, that mere credits are a 

 false quantity in ascertaining the sum of wealth which 

 is subject to taxation as property, and that, in so 

 far as that sum is attempted to be increased by the 

 addition of those credits, property taxation, based 

 thereon, is not only merely fanciful, but necessarily 

 the unconstitutional imposition of an additional tax 

 upon a portion of the property already once taxed. 



Mr. Justice Crockett, speaking of former de- 

 cisions, said : 



I am satisfied, upon more mature deliberation, and 

 in the light of the later and more exhaustive argu- 

 ments of the questions, that the former rulings on this 

 point cannot be supported. The constitution being 

 the fundamental law, it is of the utmost consequence 

 to the people that its provisions should be properly 

 construed. This is peculiarly true of those pro- 

 visions relating to the power of taxation a power 

 more subject to abuse than any other, and which 

 directly affects the interest of every citizen. What- 

 ever weight may be due to the rule of stare decisit, 

 as applied to other subjects, it ought not, in my opin- 

 ion, to prevent a return to a proper construction of 

 those provisions of the constitution which affect 

 the vital question of taxation. No great property 

 rights have grown up under the former construction, 

 which can be injuriously affected by the change in 

 the rule, and I discover no sufficient reason for per- 

 sisting in a construction, the only effect of which, in 

 a large majority of cases, is to inflict upon the bor- 

 rowers of money an unjust and oppressive system 

 of double taxation. That this is the necessary result 

 of a tax on debts secured by mortgage for money 

 loaned is, in my opinion, too plain to admit of de- 

 bate. 



Mr. Justice Rhodes dissented from these opin- 

 ions and from the judgment of the court, which 

 reversed the decision of the lower court and 

 remanded the case. 



The following industrial nnd commercial 

 statistics of California, for 1875, were received 

 too late for ftie last volume of this work : 



PRODUCTS. 



Wheat 80,000.000 centals. 



Wlicat and flour exports 9,000,000 " 



Oold and silver $90.000,000 



Coinnire of San Francisco Mint $88.060,000 



Lumber 8*8,000,000 ftwt 



Wool 48.800,000 poup<?. 



Wine 8,000.000 gallon*. 



QuiekMlver 44.000 flasks. 



Kxport* of merchandise by wa $80,450,000 



Tonnaeo movement of Central Pacific 



Railroad 1,9CB,781,OCS pounds. 



