New-York tribune., 1876-03-25
JUDGE McKINSTRY's OPINION.
tJudqs Yles eoncnrtng1

(Judqe Vjies oOncurYtngD
"Taxation shall DE equal and uniform through
ont state All property in this State shall bc taxed
u proportion to its value 70 be asceraned directed by
law; but assessors and collectors Of town. county and
State take, shall he elected by the quac electors Of
the district, county in which tie property taxed
State county town purposes Is situated Const
tuition Of California Article XI, Section 13 There no
rroyison IN the Political Code which requires In terms
that ocbts secured by mortgage shall he taxed That
Code requires that all property shall be taxed, end sec
ton Il declares The words personal property in
clude moacy goods, cbattes evidences Of debt, and
things in action" Unless the provision of the consti-
tuition above quoted rsstrains limits the power OF the
legislature prohibit the taxation Of "c7dences
OF debt things in action, 1t Is the duty OF the ases
only mortgages but all dcbts soivcnt
not solvent, and also al rights OF action whethtr u
ing er controcu Gecto. Aud this lrs'. because IL
s the established law that ail property must be taxed
and the Jegtatnrc has no power 10 exempt any prop
ery; and second because the Legflaure ma u.ciateu
thnt all property shali he taxed and attempted TO In
clude Ia tine definition OF property all ehnscs ~ nction
But 20 declare tta II T. the duty of the as-osor 10 assess
All "things in action" Is 80 rive construction 80 the
Co;Is on which must lead Ia tho grossst ajsuriiies
TIE Constitution IN its Application 10 TIE aflons urlart
ments of the Government, ana 10 individual s1S must
receive such construction - TO give II practical opcr
alton There would be - contradiction ia che sins!o ,ec
tba all pPoTSriy sf5Tii be as-d eqrsy and uniformly
win reference TO is value and that the word property
includes those thugs pr4ctc N incapable Of an af!st
hearing definite relation or proportion 10 other
That casei OF action are dependent too many con
tinrcncics 90 be capable OF appiasoincn when NaI h
cora with any rule o. cQGg,p or aniso,ie o. Init
too riair FOR argument. fct tue 'yh1uluUoI IYu.,,
tuat all property snail ho assessed on ne 40 ydoscin
principle by local assessor Al, property Nnch I, va,
he and tangible Is capable "i ruch 7iiien rh
Ia action uTo not, The word properly Eds 80 useu ~
Lame cannot be limited 10 tue ine ning gwen u P
the Code bat Day also-l,id such is our dI!ooA .u'
i,s meaning ia lie Constitution. The ton-thuu"n pro
yidcs thar rfopcriy a. property shall he taxed cI
copt such AZ !, capable OF valuation ~ tht asess'I,
which s,all De ratahy equal and nnii'r,l "th al az
az cal. G6O Z, was nnd that taxation mu.t bo thus
equal and uniform, aud IN People agt san Ffandsso
srssor il tas very foundation Of rrocecdings fcr AMOR
toning aud coil citing tax on property. Inc iSG zee
ton " Artlrle NJ oi lhe C'hN'lJuvh ii,
that each article o. property capable ol 'aiu-
alton. shhl ho hygd or e.,inn,'', ,,o ana vbD, lao
s,I hea- ,tS sams proportion to the vaoic amoant
loyod IS io's the value 81 iAe pa uen,aE p'Hpe&;y H.
statc OF tax district Under our Constitution th'reio.c'
depend ut ~ other constitutional re-irc'ts thc SH,e
might take sJch portions OI ihe wealth "luh IL 'vi
the Legislative deiHrtnt u, id.eh areih i M G
support or deicsc % the Government Ia lbs IeapS'l
tlt wsvil bs DO limitation, save that r'sriuuf iioM
moral considerations uddresaDg hcuse.yes to l1c con.
science. of individual 4.S.sal ,. =,
Goycrng nj required tay Of 100 per cent on all values.
what would o. thu ICsuit ~ suCu TAX. al Apfop'h-
tou of al tbo property ~ ~" sidr-ii is pam ttt c
state would ieeiN9 no DtHen LON t'i'gA,5 ~ f - ~,
due by o. hrr citizens - other. ana "a! "' oHt ~
II is property in possession or enjoyment. Aud not
merely In ,ht which must ultimately ray every ia1
The -aturc may dcclar that cauSc or tti"h -ali
bc taxed. Drt c,us" of action 'aLho, ~! u, - a..
this because Il has and can have NJ value hI'ps"'nt
of TIE fsp.blr wealth OGt Of which II may he sat. rl
lU n certain -cisc prnmi,sOry note or any ct'll !.
rrourry whether solvent, as tha te.ln IS ordinarily
onulug 0d not Il may Pee a.lSL'd loi fhy " NVS
ir t,,u a5Wa,cr 10 explain Why note discountcd ~
20 psr cent would b. less appropriately epra prop
ya otter hlf The yane it has acquired by Of
the probability tDt the properly b"t ius pro- ~ .!Li ~
applied tno satisfaction Of no claim 1t r'prc.ent Iie
Wlo la. he properly IN poss"son mae Oe tA'i on 49,
out violation 81 toe constitutional PROVISION th"t tich
yuIo shall be taxed popOsuondcy 10 'he sum oi A' 'uo
". ,ics. ,,,..,..
Tnc sovereign power Of the people IN empoyins The
prcro. .ti,c OF taxation icsdrd- hr e ci''- "' 'I't
uals an ldly lrar out dcdis WITH the asgrcsae "chh
0f ana tiaf which H. supposed % le unlimited l. nero
limited by ~ iueXorab.e Law Eaich pailtmcais cannot
sct aside or il 81 only to the actual wealth at s"NeA
tu..l. can Irsci and tAJt exhausted, thcy nave ~
other property frsoIrc'. The - az certain ir 14
b. po5.iOo "a cleIJ 'is, 10 5HD" @ iia ~ ' - % m t.
tho a.. rs.e.-cl to Ls creditor bul " adh "a. h,l'
nat,a drn0n,ratiouf hc Other property IN the ata'e
has been a,ses-ed at lt5 'a%itS % M St a. @ tci I.
% "A. ultimately ra,f! TIE dcD' u " sc'tE H.iIs h"S
ryI in tn tlte al the same mOucut ~ tEc wOdii De-
clear 10 every mind that as-e-snent ~ credit wa an
-, I4lil. as tic sscs. goes h- round thi tLo same
piece of tangible personal properly Is IN i.t1 t"c'
tha hc r,t found in possession has parted Win II Tor 80
value that when the 7rc0hd person r. aseSnl thc irst
IT, e.
.sess,; 50 thst mo uniformity required by Inc C1s
tuition is nabtainsd H. eject But II debtor j. found
ana m creditor fouEd 10 b. the owner Of lis nnto for
s,I 900 and Is aos,ssed for Ike sun ana II M DAY
ne. th, visit OF tie to the creditor tho d''oF
sha uay his r1le Il is clear that tEc same value M,
b,en twice taxed, since the debtor haA Ih'iei wth 9
ppv aud received only that which j. certainly not TAX
abe property in MS hands aul which can never after
ward pc assessed. When debtor pa!s h5 drCt ne DOS
not abstract destroy any portion oi tne 'aAable prop
,ry of tho state the aggregate OF values Remains the
same. l,, ,,c, t,-,., 80. ,...,,
term sI2 this Court slli: "iho word property Il
u .cd M that section OF the Constitution IN ~ ordinary
aud popular -enso and this ls thc general ij IN te w
terirctati0n OF c,siltl l'Iolo 'nu u,ii ,
teyt that tbe words are ureh an t,'hh'di o Dr %
nee bit an not prc,arcd To admit that III is vulgar
sense the word pr0perty ncludes al choes iii ACTION
t,yrs ~, The ssme ouni1n: there l. good reason
to believe that the word was used III tat section te'oh
g. article ~, materially differing from ti.'
which IL has i'm other sections of mat in5sfumcnt'
single illustration Will hAoW that Tie lOrCgolhs Il not
literally correct II has mover been dOuhtci ~ these
arguments that gold and silver money is property
which may Dc taxed Such coins are more thah
nzed 90 standards of value throughout the conuiercla
world and everywhere of purchasing capacity. But IA
lion Art L. see. 81 shall private property be taken
for pubic without Just coinpensatioD prohibits tha
taking OF money. This reason is apparent IGo com
spoken Of l. money and II would lead In an
ahsurny say that money should be tahtn l1r the pap
the citiIeh "inh m 'io 'oi; va" go ~ ~ - hsiItrv uccrs
certainty OF huinHn lhSuase lhat II ~ hDs"l''y %
the sense which particular word u employed,
il can bo employed In more than one. .-,....
Ge fic, OF the present do not present any quc5
ton as the power OF the Legislature 10 require the
uavIent OF "A srccihc sum by way OF license for tine
OF particular business or the performance
OF particular acts The views above expressed remove
the ob tcOn heretofore resorted TO- thhl lhe creator
cannot complain il the debtor shall pay double taA
The creditor can always complain becauie the crrt
pendont value and therefore, cannot be taxed IN pro
otnn TO such value (as part OF the aggregate OF Naue
In tIe manner required by tEe Constitution.
And IN the going an effort has been inadeto abstain
frnm any reference the moral elects Of species OF
igsation which ordinarily transfers the burden 0r Taxa
,i, from the lender TO the borrower and encourages
and PERJURY by permitting the collre