Rode

The defendant is assessor of the city and county of San Francisco. The plaintiffs are residents of San Francisco, and in March, 1895, in response to defendant’s demand, made a return shoving that they were owners of personal property in said city and county subject to taxation for the ensuing fiscal year, but owned no real property. The defendant assessed their personal property, and on May 20, 1895, demanded payment of the tax, amounting, at the rate of the tax levy for the previous year, to seventy-one dollars and seventy-three cents, and threatened, in case of their refusal to pay, to seize and sell enough of said property to make the amount due. To restrain such threatened seizure and sale this action was begun. The superior court denied the injunction and plaintiffs appeal.

It is conceded that the proceedings of the assessor were sanctioned by the express provisions of the statute, but it is contended that a statute which authorizes the collection of taxes on personal property not secured by lien on real property, before equalization, before levy for the year and before the beginning of the fiscal year to which they belong, is unconstitutional in those particulars, and to…

I dissent. In my judgment, the provisions of the act in question clearly violate the constitutional rule that “all property shall be taxed in proportion to its value.” (Const., art. XIII, sec. 1.) This provision is not satisfied by an equal assessment merely. Taxation consists in the payment of taxes, and if the operation of the statute is such as to malee one person or one kind of property pay more In proportion to value than other persons or property, such a statute must be void.

Under the operation of this law, the owner of personal property not owning any real estate is forced to pay his tax many, months, perhaps nearly a year, before those owning real estate are required to pay their taxes on personal property. He is, there *523 fore, compelled to lose the interest on his money for that time. Obviously, the state has no more right to deprive a man of the use of his money than it has to deprive him of the money itself. The result is, that he has to pay more than others on the same valuation—the difference being measured by the value of the use of the money during the period in which the others are not required to pay.

This constitutional rule is further violated by this…

I also dissent from the judgment of the majority of the court upon the following considerations, as well as for the reasons expressed in the opinion of Mr. Justice Van Fleet:

The provisions of sections 3820-3824 of the Political Code are, in my opinion, totally at variance with the constitutional rights of the citizen. By these sections the assessor is authorized to assess and summarily sell the property of any person “when in his opinion” the person does not own sufficient real property within the county to secure the payment of his taxes. Under this provision, an assessor has the unrestricted power to exercise favoritism or antagonism toward the person to be assessed. It does not affect the principle whether the power is so exercised or not —the fact that it may be used as a cover to an unfair assessment is the test of the right of the legislature to confer the power. Under the principles of the constitution of this state, the sovereign power of taxation cannot be instrusted to the arbitrary will of any individual; and it is equally immaterial to the question *526 that the person assessed may subsequently obtain redress for any abuse of this power. The state can by this mode no…