I concur in the judgment and in the opinion, except that portion which holds that property of the kind mentioned in the opinion is not subject to taxation.

*491 [After the delivery of the foregoing opinions a rehearing was granted, and after argument on rehearing the following-opinions were delivered at the October Term, 1873.]

After a careful consideration of the able and exhaustive arguments which were had in these cases since the former opinion was delivered, I see no reason to doubt the correctness of the conclusions announced in that opinion. I adhere to the following propositions: 1st. That the plaintiffs have not made out a case which entitles them to the remedy by injunction. 2d. That the City and County of San Francisco is not exempt from the operation of the general revenue system established by the Code. 3d, That the Act establishing the State Board of Equalization is not unconstitutional on any of the grounds or for any of the reasons alleged, and is a valid and constitutional enactment. 4th. That if a debt for money lent and secured by mortgage be taxed, and if the mortgaged property be also taxed, the same value and subject matter has been twice taxed, and it presents a case of double taxation.

In respect to the first three points I do not propose to discuss them anew, having fully expressed my views upon them in the former opinion. But, as the fourth point presents a question of much difficulty and of great practical importance, I deem it proper to develop somewhat more fully the reasoning in support of the views expressed in the former opinion on this point.

In all countries the principal subject of taxation is property in its various forms, and in well regulated Governments the purpose is to impose the burden as equally as possible, so that each parcel of property shall bear its just proportion of the tax.

Having this fundamental principle in view, our Constitu *492 tion provides that “ taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to its value, to be ascertained as directed by law." (Article XI, Sec. 13.) In construing this section we have several times decided: First, that all the property of the citizen must be taxed, and that it is not competent for the Legislature to exempt from taxation any particular class or species of property held in private ownership. Second, that a solvent debt secured by mortgage is property for the purposes of taxation, within the meaning of the Constitution. (People v. McCreery, 34 Cal. 432 ; People v. Whartenby, 38 id. 461 ; People v. Eddy, 43 id. 331; Lick v. Austin, 43 id. 590.) But we have not in any case heretofore decided whether or not a tax on the mortgage debt is practically a tax on the property mortgaged; and whether, if each be separately taxed, it presents a case wherein the same value or subject matter has been twice taxed. The question is therefore res integra in this Court; and though it has frequently engaged the attention of legislators and political economists, it is to be regretted that it has been very little discussed in the Courts. It may be observed in limine that in examining the question I shall confine myself to the case of a solvent debt for money lent, secured by mortgage, which is the case before us. As already stated, it has been settled by the decisions of this Court that a solvent debt is “property,” in the sense of the Constitution, for the purposes of taxation; and a solvent debt for money lent, secured by mortgage, stands upon the same footing with other solvent debts, unless it can be demonstrated that a tax on the mortgage debt is, in effect, a tax on the property mortgaged; and that if each be separately taxed there will be a double taxation of the same value or subject matter. In considering this question I shall lay out of view, as not affecting the legal proposition, the well known fact that in a vast majority of cases the borrower is required to stipulate that he will *493 pay the tax on the mortgage. If he voluntarily assumes a burden which the law does not impose upon him, it will be due to his misfortune or his folly, and cannot be imputed to the law as a fault. But assuming that the borrower refuses to stipulate that he will pay the tax, eo nomine, on the mortgage, he pays it, nevertheless, in another form, to wit: in a higher rate of interest. This must be the inevitable result, so long as the rate of interest, like the price of any merchantable commodity, is regulated by the law of supply and demand. If flour is abundant in the market, the price is correspondingly low; and as the supply diminishes, the price advances; so, if money is abundant the rate of interest is low; but if the supply is diminished the rate will advance in a corresponding ratio. In other words, the current price to be paid for the use of money, like the current price to be paid for flour or rice, is governed by the law of supply and demand, which is as inflexible in the one case as in the other. Both being subject to the same laws of trade, the same result must ensue if the Government imposes a burden upon transactions in each. If, for example, the current market price of sugar would otherwise be ten cents per pound, and if the State imposes a tax of one per cent on the seller for every pound of sugar sold, two results would certainly follow: first, the price of sugar would immediately advance one per cent; and second, the purchaser would pay the tax in the form of an increased price for the commodity. This must be apparent to the dullest comprehension. For precisely the same reasons, it is clear that if the current rate of interest be ten per cent per annum, and if the State impose a tax of two per cent per annum on the lender, the rate of interest will immediately advance two per cent and the borrower will pay the tax in the form of interest. So long as the use of money, like any merchantable commodity, has a current market value, regulated by the law of supply and demand, it is obvious that a tax imposed by the State on *494 loans must not only to that extent increase the current rate of interest, but it is equally clear that the tax is paid by the borrower and not by the lender. The amount of revenue which the State may raise by taxation is limited only by the discretion of the Legislature, and an emergency might possibly arise in which it would see fit to impose a tax of five per cent on all loans of money, to be assessed to the lender. Can any one doubt that the current rate of interest would immediately advance five per cent, and that the tax would in fact be paid by the borrower, though nominally assessed to the lender ? Indeed it would appear to be a self-evident proposition, which no amount of argument could make plainer, that a tax on loans imposed on the lender must necessarily to that extent increase the rate of interest to be paid by the borrower; who, therefore, in fact, pays the tax, though nominally assessed to the lender.

There* are, doubtless, exceptional cases, in which, from motives of friendship, or other causes, money is loaned on mortgage without interest, or at a conventional rate, having no reference to the current market rate. But, in a large majority of cases, loans are made at current market rates, which are as definite and as easily ascertained as the current market price of any merchantable commodity, and are governed by the same rule of supply and demand. If money is sometimes loaned at rates above or below the current rate, it is equally true that staple articles of merchandise are often sold above or below the current price. But this does not tend to prove that, as a general rule, the tax on the transaction is not paid in the one case by the borrower, and in the other by the purchaser.

I conclude, therefore, that a tax on loans made in the usual course of business, is paid by the borrower; and if the debt be secured by mortgage, he also pays the tax on the mortgaged property. He is twice taxed—once on the property, and once on the debt which the property represents—and *495 yet no new value has been created by the transaction. He is no richer, and has no more property than he had before; and if the money which he received from the lender remained in his hands, it is also taxed. If the money has passed into the possession of another taxpayer, it is taxed in his hands; so that the property and the money are each separately taxed; and if the mere promise or obligation of the borrower to repay the money is also taxed, and the tax is paid by him, as it must be, it is clear that he has been twice taxed on the same value or subject matter. This is a violation of that clause of the Constitution which requires that taxation shall be equal and uniform, and that property shall be taxed in proportion to its value. When the mortgaged property has once paid its tax, it has discharged its full obligation to the State, and the owner of it cannot, and in justice ought not, to be subject to another tax merely because he has borrowed a sum of money, for which the property is pledged as a security.

It is claimed, however, that if the mortgage debt be exempt from taxation, the effect will be to exonerate the rich money lender from taxation, at the expense of the producing classes. But, as has been already shown, the tax on mortgages for money lent is never paid by the lender, but by the borrower; and the effect of the exemption will be, not to relieve the lender from a burden, but to exonerate the borrower from an oppressive double tax. It is the borrower, and not the lender, who is aggrieved by a tax on mortgages for money lent. He has just ground of complaint, for the reason that the inevitable result of the tax is to raise the rate of interest which he is compelled to pay; and in this way the burden falls on him, and not on the lender. There is much justice in the complaint that the capitalist, whose money is loaned out on bond and mortgage, and who is protected by the laws in his person and property, virtually escapes taxation, and is not compelled to contribute his just *496 quota toward the support of the Government. No one can deny that this is unjust towards the producing classes, on whom the burdens of taxation chiefly fall. But past experience, here and elsewhere, proves conclusively that the remedy for this great injustice is not to be found in a tax on mortgages. In this State the fact is notorious, that in ninety-nine out of a hundred cases, the borrower is compelled to stipulate that he will pay the tax on the mortgage before he can obtain the money at the current rate of interest; and if he refuses to stipulate, he will be compelled to pay a higher rate of interest equivalent to the tax; so that the borrower, and not the lender', almost invariably pays the tax. In Connecticut, they have usury laws, prohibiting, under severe penalties, the loaning of money at a higher rate of interest than that fixed by the statute. They also imposed a tax on mortgages, to be paid by the holder of the mortgage. Under this system, the burden of the tax necessarily fell upon the lender. He was prohibited from loaning his money at a higher rate of interest than that fixed by law; and if the borrower stipulated to pay the tax, in addition to the interest, it was an evasion of the usury laws, which would vitiate the transaction. In this way the burden of the tax was inevitably fixed upon the lender. The result was, that loans on bond and mortgage were less profitable than loans on other securities which were exempt from the tax, and on which the current rate of interest was paid. The necessary consequence was, that money could not be borrowed on bond and mortgage, for the simple reason that loans on other securities, not burdened with the tax, were more profitable. The owners of real estate, offering the most ample security by way of bond and mortgage, could not borrow a dollar for the improvement of their property, and a large amount of capital was withdrawn from the State to find more profitable employment elsewhere. In order to remedy this state of affairs, the Legislature passed an Act *497 providing that “no contract shall be deemed usurious by reason of the borrower’s paying, or agreeing to pay, the taxes assessed and paid on the sum loaned;” the effect of which was to impose the whole burden of the. tax on the borrower. Consequently, one who borrows on bond and mortgage in that State is compelled to pay the current rate of interest, and the tax besides, whilst one who borrows on other securities is exempt from the tax, thus discriminating, against loans secured by mortgage on real estate, which is the best security known, and which should command money at the lowest instead of the highest rate of interest. This state of affairs in Connecticut affords a striking practical illustration of the fact that the tax on a mortgage for money lent, in the usual course of business, is invariably paid by the borrower. It proves further, that if such legislation is had as to fasten upon the lender a tax which reduces the interest he is to receive below the current rate which money commands in the market, he will refuse to loan his money on that class of securities, and such loans will cease. In whatever light the subject is viewed, it is perfectly obvious that the capitalist can never be compelled, by means of a tax on mortgages, to contribute his just quota toward the support of the Government. It is for the Legislature to devise, if practicable, some other scheme which will accomplish the result. But the tax on mortgages, instead of exacting from the lender his just quota of taxes, has no other effect than to raise the rate of interest, and to oppress the borrower. It compels the small land owner, who is obliged to borrow money for the improvement of his property, to r a higher rate of interest than money commands on a .¿rent and inferior class of securities.

If we were permitted to look into the question of State policy in the levying of a tax on loans, it could be demon *498 strated; I think, that such a tax, even if constitutional, would be eminently unwise and injurious to the public interest. No one can doubt that the necessary result of such a tax would be to raise the current rate of interest to the extent of the tax; and in a community where interest is already exorbitantly high, public policy demands that it should be reduced rather than increased. But as the consideration of the question as one of political economy belongs to the legislative rather than the judicial department, I forbear to press the inquiry further, except to say that in? certain districts of the States of Pennsylvania and New Jersey the tax on mortgages has been abolished; and the effect on those districts may be inferred from the following extract from the report of a committee, of which David A. Wells was Chairman, appointed in eighteen hundred and seventy-one to revise the laws of the State of New York for the assessment and collection of State and local taxes: ‘ ‘On the other hand, New Jersey and Pennsylvania, with a wiser experience, have, as before shown, entirely exempted mortgages from taxation over a large part of their territory, and will undoubtedly at no distant day make the exemption universal. And here occur points to which special attention should be given, viz: In both of these States it is represented to the Commissioners that the demand for this exemption came not in any degree from the capitalists, but from the small land owners, particularly those of the working classes, and further, that the influence of the exemption has been most beneficial to the districts affected by it—so much so, to use the words of one conversant with the question, ‘that if it were possible to take in, as if from an eminence, a view of the whole State, the counties in which the mortgages were exempt from taxation would be as readily distinguished from the others as would be a field of luxuriant wheat or corn from a field of scrub oaks or brushwood.’”

*499 This brings me to the last point which I propose to discuss, viz: whether, assuming a tax on mortgages for money lent to be double taxation, the remedy is to be found in the Courts or rests wholly with the Legislature. Because the same subject matter has been twice taxed, it by no means follows that both taxes are void, and that it must escape taxation altogether. On the contrary it justly owes one tax, and if this be paid it may properly claim exemption from the other. When, therefore, it appears that the tax has" been once actually paid, the Courts in proper cases may afford the appropriate relief against its collection a second time; or if paid under coercion and protest, it may be recovered back by action. As already stated, the facts of this" case do not authorize the remedy by injunction; and this is not an action to recover back taxes paid under protect. discover no reason why the Courts may not afford the appropriate relief in proper cases, when a tax has been once actually paid, against its collection a second time, or for recovering it back if paid under compulsion and protest. But to entitle a party to relief in the Courts in such a case, it must appear that the tax has been once paid or tendered. It is the province of the Legislature to devise a revenue system which will avoid the evils and injustice of double taxation, and the Courts are incompetent to afford relief in that class of cases, except when the tax has been once paid, by one or the other of the parties to whom it was assessed. In the cases before us it does not appear that the tax has been once paid or tendered by any one; and we are asked to restrain the collection of it from the plaintiffs, on the ground that the revenue laws require the same subject matter of taxation to be assessed to other persons; and it is said that if the tax is paid by each, the result will be that a double tax will have been collected on the same subject matter. If all this be conceded, it presents no case for the interposition of the Courts, whose assistance can be invoked *500 only after the tax which is justly due has been once paid, and it is sought to be collected a second time. Until this event has happened the plaintiffs have suffered no damage.

Orders refusing to dissolve the injunction in these cases reversed and causes remanded.