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expressly decided with reference to certain duties of the Controller of State (a constitutional officer, and required to be elected), made by the Act creating the State Board of Examiners, Chief Justice Wallace, then Attorney General, argued the case in favor of the legislative power. The Court say:
“ Where any of the duties or powers of one of the . departments of the State Government are not disposed of or distributed to particular officers of that department, such powers or duties are left to the disposal of the Legislature. When, therefore, the Legislature appointed a Board to perform a certain duty which theretofore had been performed by the Controller of State, but which is not prescribed by the Constitution as the peculiar duty of that officer, we hold the act valid and binding, because the power of the Legislature is supreme except when it is expressly restricted.”
In view of this decision, will any one contend that the duties or powers of the Legislature over taxation are entirely exhausted by Section 13 of the Constitution, and that no powers or duties relating thereto are at its disposal? We conclude, therefore, that the power of equalization is included in the power of taxation, and is subject to legislative control, unrestricted by the Constitution except as to uniformity and equality.
2. Does the Constitution require the officers intrusted with the equalization of the valuation of property assessed for ta xation to be elected?
We have seen that a law which restrained an Assessor from making any valuation would not on that account be unconstitutional. Admitting, however, that it would be, it is shown that the functions of equaliza-. tion were totally separate and distinct from those pertaining to assessment. If either of these positions is correct, then it is plain that officers charged with the equalization of the values of property for the purpose of taxation are not required by the Constitution to be elected. This note has already shown that the Supreme Court of the State, through a large number of decisions, have affirmed the constitutionality of the power of equalization as exercised by the Boards of Supervisors, and that it is no longer an open question. This settled opinion of the Court cannot be supported if it rests solely upon the circumstance of the election of the County Boards. The State Board of Equalization consists of members appointed by the Governor; but if for this reason the Act creating it is unconstitutional, then the Acts creating County Boards of Equalization are also unconstitutional, and so would be the Act cre
ating the State Board of Examiners, which the Supreme Court has sustained.-See Ross vs. Whitman, supra.
It has been said that “a Board of Equalization is simply a Board of Assessors. The Supervisors or County Boards are elected, * * and hence there is no question about their powers." This certainly must be regarded as a very loose and unsupported statement. The power of our Boards of Supervisors cannot be upheld by such an argument. The provision of Section 13, Article XI of the Constitution is as follows: “But Assessors and Collectors of town, county, and State taxes shall be elected by the qualified electors of the district, county, or town in which the property taxed for State, county, or town purposes is situated."
Supervisors are elected by districts comprising but a small portion of the county. Will it be contended that the Supervisors of Districts Nos. 1, 2, and 3 can perform the duties of an Assessor in relation to property situate in Districts Nos. 4 and 5? They are not elected by the qualified electors of Districts 4 and 5, where the property the valuation of which is under consideration is situated. If, as it is said, they are in fact Assessors, and Assessors alone can determine the final valuation of property subject to no revision or alteration, then certainly Supervisors elected for one district cannot determine the value of property in another. The People vs. Hastings, 29 Cal., p. 449, is directly against such a proposition. In that case the Court say: “The constitutional requirements are not satisfied merely by an assessment made in the manner directed by law, but it is also provided that the Assessors of town, county, or State taxes should be elected by the qualified electors of the district, county, or town in which the property to be taxed is situated; that is to say that the assessment must be made by a person elected as an Assessor by the qualified electors of such district, county, or town.
In this chosen authority for those who say that the State Board of Equalization is unconstitutional-the case of The People vs. Hastings—the Assessor who made the assessment was elected by the qualified electors of the City and County of Sacramento, which is a different district from that of the City of Sacramento. It was not made by an Assessor elected by the qualified electors of the district where the property was situatedthe City and County of Sacramento not being the same district as that of the City of Sacramento. Certainly, if the Assessor elected by the electors of a county cannot make an assessment for a city lying wholly therein, then a Supervisor (even if he be an Assessor) could not assess property situated in a district which had no voice in his election. The proposition seems too absurd to need further argument. The decisions of the Courts sustaining County Boards of Equalization rest on some more secure foundation than the one selected. “In the exposition of Constitutions, as of inferior laws, the solemn, deliberate, and long-settled precedents of Courts, and the practice and acquiescence of Governments and people, possess controlling weight.”—Ferris vs. Coover, 11 Cal., p. 175. More than twenty years of practice and acquiescence, and a long line of precedents, affirm the constitutionality of the powers exercised by County Boards of Equalization. No objection can be urged against the power of the Legislature to create a State Board that does not apply with like force to the exercise of the power to create County Boards. Both rest upon the, same foundation; both must stand or fall together. That both will stand is no longer a question, for not only does the Constitution permit, but in order to carry out its provisions, imperatively demands their creation and existence. We conclude, therefore, that neither a State por County Board of Equalization would be unconstitutional if appointed in any manner authorized by the Legislature. The argument that a State Board of Equalization is dangerous to the interests of the people, because it is not elective, would apply as well to the Supreme Court of the Federal Goverment and the Courts of many of our sister States, for a Loard of Equalization is, for all practical pui poses, a Court, where the action is between the people and an individual. Its responsibility is undoubtedly gieat, and it may be dangerous; but would it be any more sale if elected by the people of the State at large?
It was necessary to review these various questions at length, since they have been much discussed, and the provisions of the Code system of revenue have been,
to a certain extent, the subject of criticism. Equaliza- 3694. If the County Auditor fails to forward to made when the State Board of Equalization the statement proCounty Auditor vided for in Section 3728, the Board must make the ails to
Patement. equalization from any information it can obtain. / 1880
3695. When the equalization among the several counties is completed, the Clerk of the Board must
transmit to each County Auditor a statement of the Clerk to per centum to be added to or deducted from the val- statement uation of the property of his county.
3696. At the same time the Board must deter- Board to
475-6 mine and transmit to the Board of Supervisors of each Supervisors county the rate of the State tax to be levied and col- of tax to be
A lected, which, after allowing for delinquency in the 73-4 collection of taxes, must be sufficient to raise the spe- 273 cific amount of revenue directed to be raised by the
274 Legislature for State purposes.
3697. Every person served with a subpæna who Penalty for
refusing to fails or neglects, without just excuse, to obey it, and obay rules every officer who refuses to obey the rules and regula- lations of tions prescribed by the Board, or to perform the duties prescribed therein, forfeits to the State five hundred dollars, to be recovered by action in the name of the Board, which action may be commenced and tried in any county of the State.
3698. Whenever the State Board of Equalization District
Attorney to is satisfied that the Assessor or a Deputy Assessor of prosecute any county has knowingly, fraudulently, or corruptly fently assessed any property below its actual cash value, it propein must immediately inform the District Attorney of such county in writing of the facts that may have come to its knowledge, with a request that such Assessor or Deputy Assessor be prosecuted, and the District Attorney must at once comply with such request.
Clerk and 3699. The Clerk or any member of the Board members of
administer may administer and certify oaths.
3700. The annual salary of each member of the Salary of
members. Board appointed by the Governor is thirty-six hundred dollars, and the annual salary of the ex officio member is twelve hundred dollars.
3701. The annual salary of the Clerk is twentyfour hundred dollars.
3702. Each member of the Board and the Secretary thereof is entitled to repayment of all expenses incurred by him in traveling in the discharge of his duties, not to exceed annually one thousand dollars each, the amount thereof to be audited and allowed by the Board of Examiners, and paid out of the State Treasury.
3703. Each member of the State Board of Equalmembers of ization appointed by the Governor must execute an
official bond in the sum of ten thousand dollars.
Duty of Board upon failure of county Boards to appoint Assessors, etc.
3704. If the Board of Supervisors of any county fails or refuses either:
1. To allow the Assessor to appoint a sufficient number of deputies to make the assessment; or,
2. To furnish the proper books or blanks for his use; or,
3. To furnish the Assessor necessary office room; - Then the State Board of Equalization may, upon the application of the Assessor, make the allowance, or furnish the proper books, blanks, or office room; and all the expense incurred in carrying into effect the provisions of this section must, by the Secretary of the Board, be certified to the Controller, who must, in his next settlement with the County Treasurer of any such county, require such Treasurer to pay the amount out of any funds belonging to such county.
NOTE.-This section was added by Act of April 1, 1872, cited in note to Sec. 18, ante.
3705. The State Board of Equalization may, by an order entered upon its minutes, and certified to the County Auditor of any county, extend, for not exceed