Weekly Trinity journal., 1874-03-28
FROM THE CAPITAL.
SPECIAL TO THE TRINITY JOURNAL. !"
SACRAMENTO. March, 25. 1874.

cision which is just now the subject of
much exciting comment. l believe 1
can make the whole matter clear to your
readers. l shall treat only of the two
points involved in the last decision of the
three.
In the case of Saving and Loan Society
VS.. Austin, being an application on be-
half of the banks to restrain the Tax Col
lector of San Francisco from selling prop
erty levied upon for taxes, among other
points it was argued before the Supre me
Court in May last, that the section of the
Political Code giving the State Board of
Equalization power to raise or reduce as
sessments of local Assessors, was uncon-
stitutional. That the section giving the
Board the right and power to name the
rate of tax to be levied for State purposes,
was unconstitutional. That the same
section permitting the Board to consider
the delinquency likely to occur in fu-
ture year, in fixing the rate of tax for a
current year, was unconstitutional. The
claim was, that the exercise of judgment
in considering such probable delinquen-
cy, in fixing the rate Of tax, amounted
to legislation, and that the Legislature
cannot delegate its legislative powers ::
that the fixing by raise or reduction of
assessments was in itself an act of assess
ing, and that Art. XI of the Constitution
reserves to the people the right OF choos-
ing their own Assessors. AS a fact, the
Board did raise and reduce assessments
in many counties, and this of course
changed the base amount considered in
fixing the tax rate, and also of course af-
fected the rate ITSELF The Board did fix
the rate of tax for State purposes. The
Court by the decision of Crockett, Rhodes,
and Belcher, Justices, held that the Leg
islature did not delegate its powers to the
Board, but only used it as a means by
calculation to reach a determined end.
That the equalizing process was not the
act of assessing, and so sustained the
powers of the Board. Chief Justice
Wallace and Justice Niles dissented and
held directly the reverse. All the Judges,
however, held that the remedy was not
by Injunction. The result was that the
contestants had to pay their taxes, and
being beaten also upon other points, did
in great part pay them in. But re-
hearing was sought and an argument had
at a later day and in November, 1878, the
Court again affirmed its position-the JUS
tices standing just as they did before. In
December, 1873, the capitalists of San
Francisco, knowing that they had two
Judges to coincide with them, and that
Belcher was about to be succeeded by
McKinstry, pressed case, then pending,
involving exactly the same points. This
case is entitled Houghton VS.. Austin. 1t
was argued in January on briefs and
hung along until last week when about
the 18th inst. the last arguments were
made. On the 21st the decision of the
Court was rendered which has created
such confusion. McKinstry joined with
Wallace and Niles, (Belcher is not on
the Bench now and as result the de-
cision of the Court is directly the reverse
of what it was in May and Novem Der,
1878, upon the points involved. The
State Board of Equalization is shorn of
its powers, for these were its chief func-
tions, and confusion followed. While
the Justices of the Court have not at
all changed in opinion (for all yet agree
that Injunction is not the remedy yet
the public feeling is one of insecurity un-
der the rulings of the Court, and that sage
body is catching it lively on all hands.
My statement of the case, however,
shows that the trouble is the result of a
change of Judges and that no Judge has
at all stultified himself, but the people
will treat tie Court as a body, and as
such must look upon it as unstable and
changeable. Yesterday Senator Pende-
gast introduced a bill to ratify the act of
the Board in effect, and to levy the tax
for the oath and 25th fiscal years. So far
the bill will cure the evil, but it leaves
the revenue system in bad fix so far as
making assessments uniform, for the
State Board was the balance wheel which
sought to move the machinery Of the To-
cal Boards in unison.
THE VETO.
The Governors veto of the Harbor
Commissioner bill was sustained on Mon
day night by the Senate. The Governor
claimed that it is the Executive peroga-
tive to appoint to all offices made by law
where the law does not provide for an
election by the people. This is q new
and startling theory and strikes directly
at long established custom and right of
Legislatures to elect officers, which the
Constitution does not direct shall be
chosen directly by the people. The Con-
stitution certainly does not affirmatively
give this power to the Governor, and the
claim is founded chiefly in the definition
of the word Executive, and the construc-
ton Of Executive powers. 1t was also
claimed that it is bad policy to encourage
legislative elections, as they give rise to
scandals of corruption. However this
may be, this seizure of power by the
Executive is equally as dangerous. The
advocates Of the veto hailed it in long
and loud sounding speeches as the break
ing of new era, and lauded Newton
Booth as a great and brave man for the
act. All this footing of horns, it is clear
enough to see, is to elevate his Excellency
and put him prominently before the pub
lie. All this shows how imperatively a
revision of our Constitution is needed,