The morning call., 1891-09-11
MIXED LEGISLATION.
Counselor bursts Analysis Of the
New Tax Law.
He Regards the General Enactment as Con-
stitutional, but MOI So Those Sections
Which Discriminate.

Earlyin June, when there was much doubt
In Tax Collector O'Brien's mind as to how
taxes should be collected. in view of the new
revenue law enacted by tho Legislature, he
propounded the following questions to City
Attorney burst:
Flrst-Do these amendments to the POLITICAL
Code operate 10 repeal the act OF 1854, iegu-
lailng the collection OF personal properly taxes
for city aud county purposes In the city anu
county OF San Francisco? -
Second-Are the amended sections Sees. 1865,
1910 relating to railroads situated In more lhan
one county, constitutional?
Third-nre the sections (amended) regulating
generally the assessment and collection oil lakes
throughout the State constitutional?
FOurtll-Aie The provisos referred 10, 10 GER
tain sections, making certain provision as 10
counties and cities and counties containing over
100000 inhabitants consistent win Inc pro-
visions of the Constitution
The first question was answered in the
negative soon afterward in semi-officlal
manner, so that Mr.. O'Brien might proceed
with his work. Yesterday Mr.. burst sub
mitted an elaborate opinion on the four
questions, the substance of which Is given
in the following extracts:
THE OPINION IN SUBSTANCE.
The effect OF the act Q973-74) was 10 with
draw tile city and county of San Francisco. so
far as the assessment and collection OF taxes
upon personal property for city and county pur-
poses was concerned from the operation oil the
This act being IN force as part OF the charter
of the city ana county OF San francisco, at The
time of lie adoption Of the Constitution OF 1879,
continued IN force Notwithstanding tile proVi-
siOns OF that Constitution. Up to The present
date il has governed the collection OF taxes upon
personally within the city ana county OF san
Francisco for city and county purposes. Ii IS
now still in force, unless expressly repealed by
the enactment Of lie late Legislature, or unless
necessarily Inconsistent with that enactment.
There is certainly no express repeal 10y The So
called new revenue law. That act purpOits
merely TO amend several certain sections oil the
Political Code.
Nor Is there anything In the so-caled new
revenue law Inconsistent with The act OF 1874
Ii consists OF amendments 10 twenty-One dlner-
emf and more or less Independent sections OF the
Political Code. Many OF these amendments
might be made the subject OF separate enact
nenIs. But were one or each OF these sec
tons Ihe Subiect-maller OF separate enactment,
II would not be questioned but that neither one
OF all would or could be construed 10 enlarge the
scope OF thc code. .
The authorities Of the city and county OF San
Francisco must continue 20 levy and collect the
taxes upon personal property for city and county
purposes under the provisions OF that special
act, the revenue thereirom coming into the
municipal treasury as heretofore, IN the months
OF July and September
For The present inquiry 1t Is only material 10
consider whether, assuming such sections 1865
TO 1870 10 be unconstitutional, they Infect
with uuconstitutOnality the sections OF the new
enactment relating 10 taxes generally through
out The several counties OF the State. In
my opinion such result Is not to be wOrEed
There Is no connection between those sections
1865 to 1910 and the sections making pro-
vision for he payment OF taxes generally 10 u-
slallmeuts (3T06, 1856 aud others other than
the casual association IN one sweeping amenda-
tory euactn ent TIE latter are not dependent
In any way upon the former.
AS TO THE THIRD QUESTION
1t is not necessary, therefore, Mr.. burst
thinks, to consider the second question. As
to the third CUES ton, he says he can see no
constitutional objection TO the legislation.
1.,f~ ,f,tng
There is nothing unconstitutional in the
provisions for the payment of taxes in in
stallments or for increased penalties. 1t is
certainly within the power of the LePls-
lature to regulate the time and manner of
the payment of taxes and TO prescribe such
penalties as it shall deem adequate for the
enforcement of their payment.
Tho proyisos in these sections, making a
difference in the delinquency and penalties
in cities exceeding 100000 in population,
must fall by Them elves If they are uncon-
stitutional and cannot affect the validity of
the act.
Question is discussed with keen anayti-
cal insight. MIR. burst maintains that the
provlsos are equivalent to Independent
statutes, and since they are, without
shadow of doubt, special legislation he turns
the search-light Of the Constitution itself
upon them. Section Sc, subdivision 10. of
Article " of the COnstitutoniDroyidest that
1.-THE Legislature shall not pass local or
special laws for the assessment or collec-
ton OF taxes" He asks then:
Can The Legislature when dealing with the
subject Of The assessment and collection OF taxes
In the several counties Of the Stale for county
and State purposes divide counties having c-r-
tain population into special class, make special
proyisinn with refeT ence TO such assessment and
collection within the limits OF such countless and
thereby escape the objection that the act Is
special and not general?
Those proyisos are separable from the gen.
eral provisions Of the code as amended III the
statute OF 1891, and not necessarily or INSOFAR
ably connected with the general purpose and
object OF the Legislature embodied in that enact
As consequence they fall and the general
provisions, as appearing IN the new revenue law
Invested OF those prOyiSOs now stand as the law
OF this State, applicable, without exception, to
every county and city aud county Of this State.
CONCLUSIONS OF THE OPINION
The conclusions are:
Flrst-That the act OF 1874 for the assess
ment and collection Of personal properly taxes
in the city and county of san Francisco for city
aud county purposes is consistent with the code
as amended by the sO-called new revenue law
and is not repealed or aDrOEaled.
Second That tie new revenue law Is valid.
except III so far as IL attempts TO maze special
provisions for counties aud cities and counties
having popul alton or over 25O, 600 inhabitants.
The sections of the code amended by the said
new law ibut Invested OF the provlsOs) stand In
place OF the sections of The Political Code thus
amended.
1hird-The provlsos 10 certain of the amended
sections purporlng 10 make special provision
Tor counties aud cities and counties having more
than 200. 900 are unconstitutional aud void.
II Is The duty OF the various officers OF The city
and county of San Francisco having charge Of
matters connected with the assessment and COL
lection OF taxes 10 conform 10 the general pro
visions OF the Political Code as amended by the
so-called new revenue law, and applicable TO all
counties throughout the State.
The result OF the foregoing Is that the uni
fOrmity IN the revenue laws heretofore existing
sill continues, while the object of the Legisla-
ture-the payment of taxes in nstallmeuts-is