in which Mr. Justice Rhodes concurred :

The principal question made in this case relates to the constitutionality of the Act under which it arose—is it repugnant to the eleventh section of the First Article of the Constitution which provides that “ all laws of a general nature shall have *527 a uniform operation? ” I think it is, and am therefore of the opinion that the entire Act is null and void, and consequently that all the proceedings which have been taken under it, for the purpose of improving Kearny street, are also null and void.

That the statute is a general law, within the meaning of that clause of the Constitution to which I have referred, is not disputed (Smith v. the Judge of the Twelfth Judicial District, 17 Cal. 554 ; French v. Teschemaker, 24 Cal. 518 ; Bourland v. Hildreth, 26 Cal. 257 .) Being a general law, does it operate uniformly upon all classes of persons upon whom it operates at all ?

There are two classes upon which it operates—one consisting of the owners and occupants of houses, lots, and lands, and the other, of railroad companies or corporations. (Sqp. 7.) Does it operate in the same manner upon the latter as upon the former ? I think not.

As to the former it provides that the Board of Supervisors shall designate what houses, lots, and lands, in their judgment, will be benefited by the improvement of the street, and that the owners and occupants thereof shall be taxed, for the purpose of paying the cost of the improvement, in proportion to the benefit which will result to their houses, lots, and lands from the improvement (Sec. 7;) and that when thus ascertained such tax shall become a lien upon the houses, lots, and lands so designated (Sec. 15, subd. 5.)

As to the latter it provides that the Board of Supervisors shall designate what railroad corporations will be benefited, and that the corporations so designated shall be taxed such proportion of the cost as shall seem equitable and just to the Commissioners of appraisement and assessment (Sec. 7,) and that such tax, when ascertained, shall be a lien upon all property belonging to them in the City and County of San Francisco (Id.)

It appears obvious to me from the bare statement of the manner in which the statute operates upon these different classes that its operation is not the same, either in respect to *528 the rule of levy and appraisement, or the lien and collection of the tax—the two principal particulars in which the statute operates.

I. In respect to the owners of lands, the mode of proceeding, in respect to the levy and apportionment of the tax, is clearly and explicitly defined—nothing is left to the discretion of the Commissioners. They are directed to look only to the property, designated by the Board of Supervisors, as the foundation of their apportionment, and are instructed to inquire and ascertain how much each parcel will be benefited by the improvement, and to tax the owner in proportion to the benefit so ascertained. In no respect is the foundation of the apportionment, or the mode of proceeding, left to their discretion. It is not so in the case of railroad corporations, but directly the reverse. Between the two modes there is all the difference that there is between a rule and no rule—no discretion and absolute discretion. The Board of Supervisors is directed to name such railroad corporations as will be benefited, and the Commissioners are merely directed to tax them such an amount as they may think “equitable and just.” Instead of being restricted to a particular basis, in some form of property, as in the case of the owners of laud, for the purpose of estimating the benefits which will accrue to the corporation, and then directed to tax.it in proportion to those benefits, the Commissioners are allowed entire freedom to select their own basis of benefit, or none at all, and then to tax the corporation whatever they may think proper, or according to their uninstructed notions of what is “ equitable and just.” In other words, in the one case the Legislature prescribes the rule of action, and in the other the Commissioners are left to pursue their own course.

II. In the case of the owners of lands the tax is made a lien only upon the property which is benefited. In the case of railroad corporations it is made a lien upon all the property of the corporation in the City and County of San Francisco, whether benefited or not. Under the rule in Taylor v. Palmer, 31 Cal. 240 , only such property as will be benefited can be *529 taken to pay the tax. It results then that the property designated as benefited, in the case of the owners of land, can be taken to pay the tax, and that they can be made to pay, while in the case of railroad corporations, no property having been designated as benefited, none can be taken, and therefore the railroad companies cannot be made to pay.

To repeat: In the one case the Board of Supervisors is required to designate the property which will be benefited, and in the other it is not. In the one case the Commissioners are told what property to take as the basis of their estimate of benefit; in the other they are not, but are left to choose for themselves. In the one case they are told to tax in proportion to the benefit which will accrue to certain property, in the other they are not so restricted, but are allowed the largest liberty and told to do whatever their uneducated notions of equity and justice may dictate. In" the one case the tax is made a lien upon certain property, which is designated, and? can be collected, in the other it is made a lien upon property which is not benefited and therefore cannot be collected (Taylor v. Palmer,) for the only property of the railroad corporations which is benefited, (as held by my associates) is its easement or franchise, and that cannot be sold, except with the consent of the Legislature, which is not given (Wood v. Truckee Turnpike Co., 24 Cal. 474 .)

Such is my reading of the statute. To read it the other way would be to transpose one of the most salutary maxims by which Courts are guided—jus dicerc non jus dare.

For these reasons I am compelled to dissent from the various conclusions reached by a majority of the Court in the several appeals which have been taken in the course of these proceedings. In my judgment the entire action of the city government in the matter of widening Kearny street should be set aside as being null and void.