FOURT, J. I dissent.
There is but one issue in this case, namely whether all specified property subject to taxation shall be assessed at its full cash value as provided for in the Constitution and statutes or whether such property shall be assessed at a uniform percentage of full cash value as determined by the county assessor.
In this case the defendant assessor has announced his intention to assess all property at 25 per cent of its fair market value, asserting in effect that locally assessable tangible property may be legally assessed at any uniform fraction of its fair market value rather than at its full cash value as provided for in the Constitution. The sections of the Constitution and statutes particularly pertinent to this matter are as follows: Section 1 and 9 of article XIII; section 12 of article XI; section 22 of article I, and sections 110 and 401 of the Revenue & Taxation Code.1
[417]It is Hornbook law that the provisions of the Constitution are mandatory and prohibitory and self-executing. See State Board of Education v. Levit, 52 Cal.2d 441, 460 [343 P.2d 8] ; Matter of Maguire, 57 Cal. 604, 609 [40 Am.Rep. 125]; Oakland Paving Co. v. Hilton, 69 Cal. 479, 512 [11 P. 3]. The rule applies to all sections of the Constitution alike and is [418]binding upon every department of government. People v. City of San Buenaventura, 213 Cal. 637, 639-640 [3 P.2d 3].
Nowhere is it indicated that the assessor need not comply with the provisions of the Constitution and the statutes. The law plainly is that its provisions shall be obeyed and disobedience of them is prohibited.
There is no ambiguity in either the language of the constitutional provisions or in the statutes. It is clear to me from what is stated, what is meant. Nowhere is it stated or indicated that the assessor has the right to determine whether property shall be assessed at full cash value or at his favorite fractional percentage of full cash value.
The meaning of “full cash value” has been determined by both legislative and judicial fiat. It has been held that “full cash value” is synonomous with “market value.” City of Los Angeles v. Western Union Oil Co., 161 Cal. 204, 207 [118 P. 720]; Crocker v. Scott, 149 Cal. 575, 585 [87 P. 102] ; see also Michael Todd Co. v. County of Los Angeles, 57 Cal.2d 684, 696 [21 Cal.Rptr. 604, 371 P.2d 340] ; De Luz Homes, Inc. v. County of San Diego, 45 Cal.2d 546, 561-562 [290 P.2d 544] ; Lockheed Aircraft Corp. v. County of Los Angeles, 207 Cal.App.2d 119,128 [24 Cal.Rptr. 316],
This court should not attempt to put a non-existent or imaginary ambiguity into the matter of assessments and taxes by holding in effect that the assessor may juggle the placement of certain taxes on certain holders of certain property.
The majority in this particular case in effect hold that the long continued, systematic and intentional violation of the law somehow constitutes or has developed into a right in the assessor to violate the specific provisions of the law. As counsel for appellant has stated—“The Constitution is not such a slender reed that it can be destroyed by a mere twist of the bureaucratic hand. Even mere statutes requiring full cash value assessment are not repealed by administrative neglect.”
The Iowa Supreme Court in deciding a case where substantially the same arguments were made as are asserted by the respondent in this ease said: ‘ ‘ These duties which they have knowingly and deliberately refused to perform are imperative duties. They are commands of the legislature. The defendants have no discretion in the matter, with respect to obeying those commands. Since the statute requires that all property shall be assessed and taxed at its actual value, they have no right to disregard this legislative injunction, because they deem it unwise or inexpedient, or because others in their [419]position in the past have so violated the law.” (Pierce v. Green (1940) 229 Iowa 22 [294 N.W. 237, 248, 131 A.L.R. 335].) The above quoted sentence from the Iowa case was quoted with approval in Switz v. Township of Middleton, 40 N.J. Super. 217 [122 A.2d 649, 655], where the court declared improper and illegal a century old practice of using fractional assessments.
No amount of juggling, subterfuge, circumventions, evasions, deception, maneuvering, legalistic legerdemain or sorcery can change the plain and specific provisions of the Constitution. If the rule were otherwise no one could ever rely upon his rights under the Constitution.
Our courts have held in the past that failure upon the part of an administrative body properly to tax a trust does not constitute an administrative construction and it has been said: “Moreover, an erroneous administrative construction does not govern the interpretation of a statute, even though the statute is subsequently re-enacted without change. ’ ’ Estate of Madison (1945) 26 Cal.2d 453, 463 [159 P.2d 630], “Delayed action on the part of those charged with the execution of laws will not be permitted to annul the law.” Painless Parker v. Board of Dental Examiners, 216 Cal. 285, 299 [14 P.2d 67], And statutes cannot be held to be repealed by virtue of changed conditions. People v. Harmon, 54 Cal.2d 9, 26 [4 Cal. Rptr. 161, 351 P.2d 329]; Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53, 63 [195 P.2d 1],
The United States Supreme Court held in District of Columbia v. Thompson Co., 346 U.S. 100, 113-114 [73 S.Ct. 1007, 97 L.Ed. 1480], that “The failure of the executive branch to enforce a law does not result in its modification or repeal.” It would seem to go without saying that if a failure to abide by a statute does not repeal or modify it, then certainly such conduct can have no effect upon constitutional provisions. See also Trabue Pittman Corp. v. County of Los Angeles, 29 Cal.2d 385, 399 [175 P.2d 512], Hammond v. McDonald, 49 Cal.App.2d 671, 678 [122 P.2d 332], and Golden Gate Scenic S. S. Lines, Inc. v. Public Utilities Com., 57 Cal.2d 373, 377 [19 Cal.Rptr. 657, 369 P.2d 257].
There never has been (so far as I can ascertain) a direct holding in California upon the exact point involved in t.hig proceeding. There have been, it is true, cases which were concerned with the right to equalize assessments, without making a full cash value assessment, but as I read the decisions in no sense did the courts in those particular cases ever hold [420]in the face of the problem here presented that the Constitution does not mean what it states. Those cases must be read in the light of the questions which were presented and passed upon at the time.
It would seem that full cash value is the only standard that is just and uniform and the one whereby each citizen can be required to support the government according to the value of his property. But whether or not it is a proper standard or not is not before this court—the command of the Constitution is clear and we should not put our stamp of approval upon any evasive actions. See United States v. Jimmer son, 222 F. 489, 495 [L.R.A. 1918B 1102] (cert, denied 239 U.S. 641 [36 S.Ct. 163, 60 L.Ed. 482]) and Pierce v. Green, 229 Iowa 22 [294 N.W. 237, 244,131 A.L.R. 335, 344], where it is said: “Of this matter Prof. James C. Bonbright, of Columbia University in his late work ‘The Valuation of Property,’ Volume I, pages 497, 498, says: ‘Theoretically the taxpayers’ pocket is not in the least affected by uniform undervaluation or overvaluation. Systematic undervaluation diminishes the tax base, and the rate must therefore rise in order to supply the required government revenue. .. . The objections to the practice of undervaluation are patent. In the first place, except where sanctioned by statute, it involves a generally known and sanctioned disregard by officials of the law requiring them to assess property at its full and fair value. The other great vice is that the percentage of undervaluation is rarely a matter of common knowledge so that it is extremely difficult to ascertain whether there is uniformity in the proportion, or whether, through incompetence, favoritism or corruption of the assessors, some portions of the taxing body are bearing the others’ burdens, as between either individuals or local groups.' ’’
The majority of the court in this instance indicates that appellant here has neither pleaded nor offered to prove that he has suffered or might suffer any detriment as a result of assessments at 25 per cent of the full cash value of his property. Surely a citizen, resident, elector and property owner does not have to show a detriment before he can compel the officers of his government to comply with the Constitution. It was appropriately stated in United States v. Lee, 106 U.S. 196, 220 [1 S.Ct. 240, 27 L.Ed. 171, pages 181-182] :
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law and are bound to obey it.
[421]“It is the only supreme power in our system of government, and every man who, by accepting office, participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
“Courts of justice are established not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the Government. ...”
But the fact of the matter is that plaintiff and many others in his position have suffered and do now suffer a detriment because of fractional assessing and this court can without question take judicial notice of what occurs. The agreed statement before this court sets forth that plaintiff is an honorably discharged veteran, ineligible for the veterans’ exemption because he owns property worth over $5,000 and is a widower and that “(e) the Los Angeles Unified School District, within which plaintiff resides and to which he pays taxes, has a maximum property tax limit by reason of certain provisions of the Education Code, (f) by reason of section 450 through 455 of the Welfare & Institutions Code, applicants for public assistance may retain real property producing income, reasonably consistent with its value, which is used for the support of the applicant, not to exceed an assessed valuation of $5,000 as assessed by the county assessor, (g) the bonding capacities of the City of Los Angeles, County of Los Angeles and other taxing districts within which plaintiff resides are in direct proportion to the assessed value of property located within the limits of said city, said county and said districts.’ ’
The assessed valuation of property is the valuation used in applying the provisions of section 1% of article XIII of the Constitution (veterans’ exemptions).2 It is perfectly [422]apparent that persons (veterans) owning approximately four times the permitted maximum amount of property set forth in the Constitution ($5,000) are now exempt from taxation when they otherwise would have to pay. In other words a veteran’s property, the actual cash value of which is $19,950, is presently assessed at $4,987.50. The veteran under the present administration of the law is entitled to a $1,000 exemption whereas in fact he is legally and constitutionally not entitled to any exemption.
Section 455 of the Welfare and Institutions Code provides as follows :
‘ ‘ § 455. Real property owned by the appellant or in combination with his spouse which is producing income, reasonably consistent with its value, which is used for the support of the applicant, may be retained in an amount not to exceed an assessed valuation of five thousand dollars ($5,000) as assessed by the county assessor.”
In other words, a recipient of public assistance as defined in the Welfare & Institutions Code (§§ 450-455) can continue to draw such assistance and have property of the actual cash value of $19,950 because such property will be assessed at $4,987.50 and not at its actual cash value.
Under the circumstances it does not require a pencil and paper to calculate that fractional assessments are of a decided detriment to many taxpayers and a windfall to others.
[423]In 1957 the then legislative counsel (Ralph Kleps, presently the director of the administrative office of the California courts) was asked (1) whether there was any legally specified standard for the assessment of property for tax purposes, (2) whether in the event a county assessor assesses property at less than its full cash value for tax purposes there is any way in which the assessment could he corrected to conform to that value and (3) whether an assessor who assesses property at less than full cash value thereby subjects himself to any liability. The legislative counsel’s answer to the first question was that the standard is the “full cash value” and he then stated:
“Our State Constitution states that all taxable property ‘shall be taxed in proportion to its value’ (art. XIII, §1), and provides that all ‘property subject to taxation shall be assessed for taxation at its full cash value’ (art. XI, § 12).
“ ‘Full cash value’ has been defined as ‘the amount at which property would be taken in payment of a just debt from a solvent debtor’ (Rev. & Tax. Code, §110). As our Supreme Court recently described it, it is ‘the price that property would bring to its owner if it were offered for sale on an open market under conditions in which neither buyer nor seller could take advantage of the exigencies of the other. It is a measure of desirability translated into money amounts . . . and might be called the market value of property for use in its present condition’ (De Luz Homes, Inc. v. County of San Diego (1955) 45 Cal.2d 546, 562 [290 P.2d 544]). The Supreme Court of the United States has stated unequivocally that it is synonymous with ‘market value’ (San Francisco National Bank v. Dodge (1904) 197 U.S. 70, 80 [25 S.Ct. 384, 49 L.Ed. 669, 674]).
“As thus defined, ‘full cash value’ is the standard of value for property tax purposes (see De Luz Homes, Inc. v. County of San Diego, above, at pp. 561-562).
“In concluding this analysis, we direct your attention to the case of Eisley v. Mohan (1948) 31 Cal.2d 637 [192 P.2d 5], in which the court considered the constitutionality of former section 987 of the Revenue and Taxation Code, which read:
“ ‘The cash value of a possessory interest in real estate of the Veterans Welfare Board is the following percentage of the cash value of the property during the following periods of the life of the contract covering sale of the property:
“ ‘(a) Thirty percent during the first quarter period of the life of the contract;
[424]“ ‘(b) Forty-five percent during the second quarter period;
“ ‘(c) Sixty-five percent during the third quarter period; and
“ ‘(d) Eighty-five percent during the fourth quarter period. ’
“The possessory interests involved were those of veterans in property being purchased for them by the State pursuant to the Veterans' Farm and Home Purchase Act (Mil. & Vet. Code, § 800 and following), title, however, remaining in the State for security purposes until the completion of all required payments.
“Holding that section 987 was unconstitutional, the Supreme Court stated (at p. 645) : ‘. . . But the Legislature cannot set aside the constitutional provision declaring that" ‘ [a] 11 property . . . shall be taxed in proportion to its value” ... by requiring the assessment of property at less than its full cash value. Section 987 is, therefore, invalid as being in conflict with the constitutional provision.’
“Before Eisley v. Mohan, the courts had evidently countenanced the practice of assessing property at less than its market value (e.g. Rittersbacher v. Board of Supervisors of Los Angeles County (1934) 220 Cal. 535 [32 P.2d 135] ; Southern Cal. Telephone Co. v. County of Los Angeles (1941) 45 Cal.App.2d 111, 126-127 [113 P.2d 773]). In none of the cases, however, was there any issue as to the propriety of the practice. The question almost invariably was whether the action of the assessor or board of equalization in assessing a particular class of property at a percentage of market value different from that used in assessing other classes resulted in a violation of the constitutional provision in section 1 of article XIII for taxation in proportion to value; and, more particularly, whether, since the latter necessitates uniformity in imposing the burdens of taxation (Joint Highway District No. 13 of the State of Cal. v. Hinman (1934) 220 Cal. 578 [32 P.2d 144]), there was any discrimination as to any of such other classes.
“In the Rittersbacher case, supra, the court stated (at pp. 543-544) : ‘. . . It is the assessor’s recognized duty to see that the valuation placed on the various kinds of property shall be in proportion to the worth of such properties. If it is proportional and all are treated alike, no one contends that the taxpayers must be charged a full hundred percent, for such is not required by the law. ’
“While the last clause of this statement is clearly to the [425]point that an assessment may be made on the basis of a percentage of market value, it has the effect only of dictum, since there was no issue whatever in the case as to whether property might be assessed at anything less than market value. The primary question was whether there had been any discrimination in the assessment of the plaintiff’s property at a particular percentage of its market value, when it appeared from the evidence that other categories of property had been assessed at smaller percentages of their market value.”
The legislative counsel’s answer to the second query was that a correction could be made either by the Board of Supervisors on equalization or by subsequent court order. He further stated:
“The law provides for the assessment of common property for tax purposes by the county assessor between the first Mondays in March and July (Bev. & Tax. Code, §405), for the delivery of his completed assessment roll to the clerk of the board of supervisors between the first and third Mondays in July of the assessments shown on that roll (Bev. & Tax. Code, § 1603).
“In equalizing, the board of supervisors ‘may increase or lower any assessment on the local roll’ (Bev. & Tax. Code, § 1605), for the purpose of adjusting the value of the property listed ‘to conform to its real and true value’ (see People v. Dunn (1881) 59 Cal. 328, and Abrams v. City & County of San Francisco (1941) 48 Cal.App.2d 1, 6 [119 P.2d 197]).
“The functions of an assessor are considered judicial in nature; hence, when he has acted within the limits of a reasonable discretion, his judgment, even though erroneous, usually will not be interfered with in the absence of actual or constructive fraud (Eastern-Columbia, Inc. v. County of Los Angeles (1943) 61 Cal.App.2d 734 [143 P.2d 992]).
“Evidence of the constructive fraud may be found in a systematic and intentional undervaluation of property (Mahoney v. City of San Diego (1926) 198 Cal. 388 [245 P. 189]), and this apparently might consist of a practice of assessing property at less than its full cash value. Nonetheless, in consideration of presently applicable court decisions, if all taxpayers similarly situated are affected alike by such practice, it is doubtful that the board of equalization or the courts would increase the assessments or order an increase therein (see Rittersbacher v. Board of Supervisors of Los Angeles County (1934) 220 Cal. 535, 543, 544 [32 P.2d 135], and see discussion of this case in analysis of first question). In the [426]absence of a type of discrimination creating unfair tax burdens, the courts have shown no inclination to upset assessments concededly made at less than full cash value.”
In answering the third question, it was stated: “Section 1365 of the Revenue and Taxation Code provides for the prosecution of an assessor by the district attorney on the request of the State Board of Equalization when the latter ‘is satisfied that an assessor or deputy assessor has knowingly . . . assessed any property at less than cash value.’ The section read in its entirety as follows: ‘Whenever the State Board of Equalization is satisfied that an assessor or deputy assessor has knowingly, fraudulently, or corruptly assessed any property at less than cash value, it shall immediately inform the district attorney of his county in writing of the facts within its knowledge, requesting that the assessor or deputy assessor be prosecuted. The district attorney shall at once comply.’
“Apparently also applicable is section 1222 of the Government Code, which provides that every ‘willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.” (1959 Assembly Journal, vol. 4, pp. 5670, and following.)
As heretofore indicated our task in this case is limited solely to determining whether the People meant what they said when they adopted the constitutional provisions in question—-I think they said what they meant and that they meant what they said.
I would reverse the judgment and grant the writ of mandate.
Appellant’s petition for a hearing by .the Supreme Court was denied October 28, 1964. Mosk, J., did not participate therein. Peters, J., was of the opinion that the petition should be granted.
Article XIII, section 1. All property in the State except as otherwise in this Constitution provided, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law, or as hereinafter provided. ...”
Article XIII, section 9. State and County Boards of Equalization.
A State Board of Equalization, consisting of four members, shall be elected by the qualified electors of their respective districts, at each gubernatorial election, whose term of office shall be for four years; [417]whose duty it shall be to equalize the valuation of the taxable property in the several counties of the State for the purposes of taxation. The Controller of State shall be ex officio a member of the board. The boards of supervisors of the several counties of the State shall constitute boards of equalization for their respective counties whose duty it shall be to equalize the valuation of the taxable property in the county for the purposes of taxation; provided, such state and county boards of equalization are hereby authorized and empowered, under such rules of notice as the county boards may prescribe, as to the county assessments and under such rules of notice as the state board may prescribe as to the action of the state board, to increase or lower the entire assessment roll, or any assessment contained therein, so as to equalize the assessment of the property contained in said assessment, equalize the assessment of the property contained in said assessment roll, and make the assessment conform to the true value in money of the property contained in said roll; provided, that no board of equalization shall raise any mortgage, deed of trust, contract, or other obligation by which a debt is secured, money or solvent credits, above its face value. The present State Board of Equalization shall continue in office until their successors, as herein provided for, shall he elected and shall qualify. The Legislature shall have power to redistriet the State into four districts as nearly equal in population as practical, and to provide for the elections of members of said Board of Equalization.
Article XI, section IS. Except as otherwise provided in this Constitution, the Legislature shall have no power to impose taxes upon counties, cities, towns or other public or municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.
All property subject to taxation shall be assessed for taxation at its full cash value.
Article I, section SS. The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.
Eevenue # Taxation Code, section 110. “Pull cash value”: “Cash value.” “Value,” “full cash value,’’ or 1'cash value” means the amount at which property would be taken in payment of a just debt from a solvent debtor. In determining the “actual value” of intangible personal property, the assessor shall not take into account the existence of any custom or common method, if any, in arriving at the full cash value of any class or classes of property.
Eevenue $■ Taxation Code, section 401. Valuation basis for assessment. Except as provided in this part, all taxable property shall be assessed at its full cash value.
§1%. Exemption on Aceownt of Military Service.
“The property to the amount of one thousand dollars ($1,000) of every resident of this State who has served in the Army, Navy, Marine Corps, Coast Guard or Eevenue Marine (Eevenue Cutter) Service of the United States (1) in time of war, or (2) in time of peace, in a campaign or expedition for service in which a medal has been issued by the Congress of the United States, and in either ease has received an honorable discharge therefrom, or who after such service of the United States under such conditions has continued in such service, or who in time of war is in such service, or who has been released from active duty because of disability resulting from such service in time of peace or under other honorable conditions, or lacking such amount of property in his own [422]name, so much of the property of the wife of any such person as shall be necessary to equal said amount; and the property to the amount of one thousand dollars ($1,000) of the widow resident in this State, or if there be no such widow, of the widowed mother resident in this State, of every person who has so served and has died either during his term of service or after receiving an honorable discharge from said service, or who has been released from active duty because of disability resulting from such service in time of peace or under other honorable conditions, and the property to the amount of one thousand dollars ($1,000) of pensioned widows, fathers, and mothers, resident in this State, of soldiers, sailors and marines who served in the Army, Navy, Marine Corps, Coast Guard or Eevenue Marine (Eevenue Cutter) Service of the United States shall be exempt from taxation; provided, this exemption shall not apply to any person named herein owning property of the value of five thousand dollars ($S,000) or more, or where the wife of such soldier or sailor owns property of the value of five thousand dollars ($5,000) or more. No exemption shall be made under the provisions of this section of the property of a person who is not legal resident of the State; provided, however, all real property owned by the Ladies of the Grand Army of the Eepublic and all property owned by the California Soldiers Widows Homes Association shall be exempt from taxation. ' ’