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.

66 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.

3-VOL. II.

"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

thus continually shifting as the one or the other interest might predominate in political influence, thereby leading to retaliatory.legislation on the part of the dominant class against the other. These considerations doubtless influenced the Convention, in framing the Constitution, to omit from that instrument the provision contained in the Constitution of Texas, whereby the Legislature is empowered, at its discretion, to exempt from taxation such property as it shall see proper. And it was precisely such possible abuses as those above mentioned that our Constitution was intended to prohibit. The language of the section we have quoted is so explicit as to leave but little room for doubt as to its correct interpretation; but, if any doubt remained, it is readily solved by reference to the peculiar circumstances under which that section was adopted. The omission to confer upon our Legislature the discretion specially delegated to the Legislature of Texas in respect to the exemption of property from taxation must, under all the circumstances, be presumed to have been intentional, and is equivalent to an express constitutional prohibition to the exercise of the powers thus designedly withheld. We adhere, therefore, to the proposition heretofore announced, that, under the Constitution, the Legislature has no power to exempt from taxation any private property whatsoever. If any practical inconvenience shall result from our construction of the clause in question, the remedy will be found in an amendment of the instrument itself. It is our province to expound it as we find it, and not to supply its omissions, if any there be, by forced interpretations.

"Rehearing denied."

No better proof of the propriety of making this much needed reform can be given than this case, and the reasoning of the Court in deciding it. It has been adhered to since its rendition, and we presume it will be so for all time until a change is made in the Constitution, for no questions ought to be better settled than those of the character here treated of. This case is affirmed in People vs. Gerke, 35 Cal., p. 677; People vs. Black Diamond Co., 37 Cal., p. 54; People vs. Whartenby, 38 Cal., p. 461. On germain questions consult People vs. Eastman, 25 Cal., p. 603; People vs. Park, 23 Cal., p. 138; Faulkner vs. Hunt, 16 Cal., p. 171; People vs. Holliday, 25 Cal., p. 300; People vs. Niles, 35 Cal., p. 282. There is a peculiar similarity in the language of Sec. 11, Art. I of the Constitution, and the first sentence of Sec. 13, Art. XI. The first declares that "all laws of a general nature shall have a