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ated," it is argued, and our Courts have intimated (People vs. McCreery), that this phrase was intended to give to the Assessor the power to fix the valuation of property. It
may, however, be well doubted whether it is right or whether the Court intended to place this construction upon it. The sentence immediately preceding it says that “all property in the State shall be taxed in proportion to its value, to be ascertained as directed by law.” In the interpretation of constitutions, as well as all other instruments, some effect should be given to every clause. If, then, the provision declaring that Assessors should be elected means that Assessors must also determine the valuation, what office does the clause “ value to be ascertained as directed by law" perform? Is it not surplusage, if this is to be taken as the correct exposition? Would it not have been sufficient to have said, “all property shall be taxed in proportion to its value, but Assessors and Collectors shall be elected," etc? Certainly it appears that this would have been all that was requisite under such a construction. It may be said, however, that the word “Assessor" had at the time of the adoption of the Constitution a peculiar meaning, and that the term “Assessors" is detined to mean
** those appointed to make assessments," and that “ ment” is “determining the value of a man's property or occupation for the purpose of levying a tax.”—Bouv. Law Dict.
The Constitution does not in terms fix the powers or duties of the Assessor.-Attorney General vs. Squires, 14 Cal., p. 18. It simply provides for his election. There is nothing in the instrument which prescribes what particular functions an Assessor may exercise or what he may be restrained from doing. The Legislature then can, if it is not expressly prohibited by the Constitution, require from the Assessor the commission or omission of any act in relation to taxation. No part of the provision relating to taxation is self-executing, and by non-action the Legislature could altogether defeat it. If, in the exercise of its omnipotent power, the Legislature should direct the Assessors to enter on their rolls only the names of the individuals with a list of their property to be taxed left unvalued, and should further provide for the appointment of appraisers to estimate and establish the valuation of the property on the Assessor's roll, it is difficult to perceive what constitutional objection could be made thereto; or, if surveyors were authorized to be appointed to discover and
list individuals and their property, and Assessors were allowed only to affix to the lists the valuation, what particular clause of the Constitution can be cited as an inhibition of the exercise of this power by the Legislature? The Assessor still exists in name as a constitutional officer, and he performs certain functions relating to taxation in both cases mentioned.
The Constitution says Assessors and Collectors" must be elected, etc. If the term Assessor carries with it the duties of the office, so does the word Collector. Collector is defined to be “one appointed to receive taxes or other impositions."-Bouv. Law Dict.
In Attorney General vs. Squires, 14 Cal., p. 17, the Supreme Court say: “The error of the argument is in supposing that, because Assessors and Collectors are constitutional officers, every portion of the revenue must necessarily pass through their hands. We do not see that it would be at all unconstitutional to authorize every tax payer 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 office, to be done by other parties or private persons. If Legislature could do away with the tax entirely * * * it is difficult to see why they could not change the hands that were to collect it. The duties of Tax Collectors are wholly undefined by the Constitution, as also their services and compensation; these are left to the legislative direction.” This applies to Assessors as well as Collectors.
It would be folly to say that a provision in the Constitution relating to the election of Assessor carries with it a restraint on all legislation to regulate his duties or restrain him from the exercise of any function not guaranteed to him by the express terms of the Constitution. But if the word “Assessor” has a peculiar meaning and the term itself is a complete description of all the powers of the office, then it may be said that any law which attempts to interfere with the exercise of any duties recognized as belonging to such an officer at the time of the adoption of the Constitution, is void. When the Constitution of this State was framed, there was no officer known as “Assessor" within its borders. If the word "Assessor” had a meaning which conveyed a precise description of his duties, where shall we turn to find those duties defined? When the State Constitution was adopted there were some thirty States comprising the Union. Each of these States had officers to carry out certain provisions of their revenue laws, and in most instances called these officers Assessors.
These Assessors did, it is true, in most cases fix a valuation on property which they assessed, but an examination of the laws of each State shows that this valuation was subject to the control of Boards of Equalization (or certain officers), empowered to raise or lower it. See Alabama Digest, p. 418; Arkansas Digest, 1848, p. 874; Connecticut Comp. Laws, p. 848; Delaware Code, p. 27; Florida Digest, p. 97; Georgia Dig., p. 1077; Illinois Rev.Stats., p. 992; Indiana Rev. Stats., p. 127; Iowa Rev. Laws, p. 114; Kentucky Rev. Stats., p. 257; Louisiana Laws of 1849, p. 136; Maine Rev. Stats., 1840, p. 88; Maryland Stats. 1850, ch. 337; Massachusetts Rev. Stats., 1836, p. 81; Michigan Rev. Stats., 1832, p. 82; Mississippi Code, 1848, p. 189; New Jersey, Elmer's Dig., p. 552; New York Rev. Stats., 1836, Vol. I, pp. 385, 394, 408; Ohio, Swan's Rev. Stats., p. 917-920; Pennsylvania, Dunlap's Laws, p. 560; Missouri Stats., 1845, p. 96; Tennessee Code, 1858, p. 2017 Virginia Rev. Laws, p. 121; Vermont Stats., 1850, p. 118; Wisconsin Laws, 1849, p. 146.
If, then, the valuation fixed by the Assesser was not final or conclusive in a single State in the Union, why should it be contended that it is so in California, simply because they are required to be elected by the people o the district where the property is situated?
The provision is not so unusual or strange as to authorize any peculiar or forced construction. Many States require all township or county officers to be elected by the qualified electors thereof, while other States require only certain county officers to be thus elected. Provisions to this effect are found in the Constitutions of Ohio (Const., Art. 10, Sec. 1), Indiana (Art. 6), Arkansas (Art. 6), Texas (Art. 4, Sec. 13), Iowa (Art. 5, Sec. 13), Michigan (Arts. 6-10, Secs. 17– 3), Wisconsin (Art. 6, Sec. 4), Missouri (Arts. 4, 5, Secs. 23–20), Alabama (Art. 5, Sec. 75), Illinois (Art. 8-5, Secs. 7-29, Mississippi (Art. 5, Sec. 19), Pennsy:vania (Art. 6, Secs. 1-7), New Jersey (Art. 8, Secs. 6, 7), New York (Art. 10, Sec, 1), New Hampshire (Part 2, Sec. 7), and Massachusetts (Amdt. Art. 19).
Almost every one of these States mentioned provide for the election of a Sheriff by the qualified electors of the county for which he is chosen. But because the service of papers belongs peculiarly to the Sheriffs, it has nowhere been contended that a statute could not authorize such an act to be done by appointed officers or by private parties.
If, then, other persons than Sheriffs can serve papers and other persons than Collectors be authorized to collect taxes, why must a valuation of property be made only by Assessors?
But let it be granted that the Constitution requires a valuation in fact to be made by the Assessor, duly elected, etc., and then examine the case in another light.
It is not difficult to uphold the constitutionality of the State Board of Equalization even were the Constitution a grant of power and the Legislature confined to the exercise of the powers expressly conferred by it, or those which follow by implication.
Section 13 of Article XI of the State Constitution, among other things, requires, in relation to the revenue, the exercise of at least three powers: assessment, equalization, and collection. The mode or manner in which these are to be exercised is, with the exception that the particular officers who exercise in part the first and last named powers must be elected by the people of their district, etc., left to the discretion of the Legislature. But in order to carry out the requirements of the Constitution each of these powers must be exercised. The first definition of “equalize" given by Webster is, " to make equal; to cause to correspond, or be in like amount or degree as compared; as to equalize accounts, burdens, or taxes." And by the same lexicographer “equalization” is defined to be
the act of equalizing." Take these definitions in connection with the definition given of "assessment,” and it will be found that the powers involved are separate and distinct. It is true that a knowledge of some of the facts necessary to make an assessment may also be necessary to the making of a correct “equalization," but it does not necessarily follow that the one who performs the latter duty thereby becomes an Assessor. It is only after the duty of the Assessor is fully performed that the exercise of the power of equalization is commenced. It is a power intervening between the “assessment" and the “collection” of taxes, recognized, as we have already seen, by every State in the Union, and certainly nowhere prohibited by our State Constitution.
It would be absurd to say that a portion of the duties relating to taxation and assessment cannot be intrusted to other persons than Assessors and Collectors. In Ross vs. Whitman, 6 Cal., p. 361, this point has been
expressly decided with reference to certain duties of the Controller of State (a constitutional officer, and required to be elected), made by the Act creating the State Board of Examiners, Chief Justice Wallace, then Attorney General, argued the case in favor of the legislative power. The Court say:
“ Where any of the duties or powers of one of the departments of the State Government are not disposed of or distributed to particular officers of that department, such powers or duties are left to the disposal of the Legislature. When, therefore, the Legislature appointed a Board to perform a certain duty which theretofore had been performed by the Controller of 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 when it is expressly restricted.”
In view of this decision, will any one contend that the duties or powers of the Legislature over taxation are entirely exhausted by Section 13 of the Constitution, and that no powers or duties relating thereto are at its disposal? We conclude, therefore, that the power of equalization is included in the power of taxation, and is subject to legislative control, unrestricted by the · Constitution except as to uniformity and equality.
2. Does the Constitution require the officers intrusted with the equalization of the valuation of property assessed for taxation to be elected?
We have seen that a law which restrained an Assessor from making any valuation would not on that account be unconstitutional. Admitting, however, that it would be, it is shown that the functions of equalization were totally separate and distinct from those pertaining to assessment. If either of these positions is correct, then it is plain that officers charged with the equalization of the values of property for the purpose of taxation are not required by the Constitution to be elected. This note has already shown that the Supreme Court of the State, through a large number of decisions, have affirmed the constitutionality of the power of equalization as exercised by the Boards of Supervisors, and that it is no longer an open question. This settled opinion of the Court cannot be supported if it rests solely upon the circumstance of the election of the County Boards. The State Board of Equalization consists of members appointed by the Governor; but if for this reason the Act creating it is unconstitutional, then the Acts creating County Boards of Equalization are also unconstitutional, and so would be the Act cre