High v. Shoemaker

Norton, J. delivered the opinion of the Court—Crocker, J. concurring. This is an action of ejectment, in which the plaintiff claims title under a tax sale. A demurrer to the complaint was sustained and a judgment rendered in favor of the defendant, from which the plaintiff has taken this appeal.

The complaint sets forth a levy of the tax and subsequent proceedings for a sale of the premises under the Revenue Act of 1857, and the first objection taken is, that the law is void because certain lands, such as church and school lots, and the lands of the United States, are exempted from taxation, contrary to the provisions of Sec. 13 of Art. 11 of the Constitution of this State, by the terms of which it is required “ that taxation shall be equal and uniform throughout the State,” and that “ all property in this State shall be taxed in proportion to its value, to be ascertained as directed by law.”

The meaning of this section of the Constitution was considered by this Court in the case of the People v. Coleman (4 Cal. 46), in which the Court say: “ If the position contended for by the respondent be correct, then all property must be taxed, and the Legislature would have no authority to exempt any species of property from taxation; yet the power of the Legislature to exempt the property of religious and eleemosynary corporations has not been doubted.” And: “ From these considerations we are of opinion that the words ‘ equal ’ and ‘ uniform ’ apply only to a direct tax on property; that the Legislature may select or exempt such property as in its discretion it may think proper,” etc. Although that case arose upon a law imposing a tax which was considered a tax upon an avocation or business, and not directly upon property, yet it was necessary for its determination to consider the section in question; and if the remarks above quoted may not be deemed an adjudication upon the direct question now under consideration, we think they are, for the reasons given in that case, a correct interpretation of the Constitution, and that the omission to tax a portion of the lands in the State does not render the Revenue Act of 1857 void.

It is further objected that the five per cent, charged by the col[370]lector, in pursuance of Sec. 13 of the Revenue Act, is a penalty, and cannot be collected summarily, but only, if at all, by due process of law. It, however, is not imposed in terms as a penalty or punishment. The tax payer is allowed until the third Monday of October to pay his taxes, and if at the close of that day he is in default, then further proceedings are to be taken to enforce the judgment. Among other things, the delinquent is charged five per cent, upon the amount of bis tax. This is not an equivalent for the tax, or a substitute for it, or a sum fixed, by the payment of which an atonement is made for the default to pay the tax, but is one of the means prescribed for .obtaining the tax itself by presenting an inducement to make voluntary payment on or before the day fixed for that purpose. We cannot say that it was not competent for the Legislature to authorize this per centage to be collected in the same way as the fees of the officers made necessary in other proceedings to enforce the payment of taxes. It might be admitted that the sale of property for the satisfaction of taxes, together with the expenses of the proceedings, summarily by an officer, without the previous judgment of a Court, is apparently inconsistent with the provision of our Constitution that a man shall not be deprived of his property without due process of law, and yet the Court not be authorized to declare the law void, because universal practice had established, at the time our Constitution was adopted, that this provision in Constitutions was not understood as applicable to proceedings by the State to obtain from citizens' their proper contributions to the expenses of administering the Government. (See Blackwell on Tax Titles, cases cited, 40, 41.)