I. The constitutional provisions that taxation shall be equal and uniform, does not require universality of taxation. The Legislature may exempt a part of the property of the State from paying taxes. People v. Naglee , 1 Cal. 252; People v. Coleman , 4 Id. 53; Thompson v. Williams , 6 Id. 88; People v. Rodgers , 13 Id., 165; People v. Railroad Co. , 1 Mich. 460; Sedgw. Cons. Law, 557.
II. The five per cent. added to a delinquent tax is costs, and may be collected by the same process as the tax itself, without violating the Constitution. People v. Seymour, 3 Ohio, 277; Sears v. Cottrell , 5 Mich. 262; 4 Comstock, 428.
III. The description of the property in the assessment roll was sufficient. Rev. Law 1857, sec. 4; Palmer v. Boling , 8 Cal. 384; Patten v. Green , 13 Id. 328; Sibley v. Smith, 2 Gibbs, 503; Blakeley v. Beston , 13 Ill. 715; Ervine v. Helmer, 13 Serg. & Rawle, 156.
The cases of Kelsey v. Abbott , 13 Cal. 616, and Lachman v. Clark , 14 Cal. 131, which are relied on by the respondents, are not in point. In the first case, there were two lots assessed together, at the aggregatevaluation of $ 7,000, which was fatal of itself to the case. The lots were not assessed to the owner, or to an unknown owner, and the Court said the assessment was void for this reason alone, and such is unquestionably the law. It does not appear that the lot in question was situated in a city in fact, or in an incorporated town; and if not, the quantity of acres should have been given as near as possible; and if it was so situated, the lot should have been designated by number, or some well known name, that it might have been known, which was not done, and this would avoid the title. But none of these objections exist in the case under consideration. It is true the Court said: " But the assessment is fatally defective in omitting to 'give the metes and bounds, or describing the premises by lots or fractions of lots.'" (Wood's Dig. 616, sec. 4.) But this is not saying that a description by metes and bounds is absolutely necessary, and if it were, it would be mere obiter, because the case was decided upon another point involving fraud, as an examination of it will show; and, besides, the Court did not attempt to give an interpretation of the expression " or otherwise," used in thesame sentence of the section quoted from, and the facts of the case show that the point was not involved in the decision.
The case of Lachman v. Clark is not like the present. The land was situated outside a city or incorporated town. The number of acres, as near as possible, or the township where the land was situated, was not given, and both of these are expressly required by the second subdivision of the fourth section of the act, (Wood's Dig. 616,) and the question of boundaries was not involved in the decision of the case.
JUDGES: Norton, J. delivered the opinion of the Court. Crocker, J. concurring.
OPINION
NORTON, Judge
On petition for rehearing, Norton, J. delivered the opinion of the Court. Cope, C. J. and Crocker, J. concurring.
The petition for rehearing in this case insists that by a change in the punctuation it may be made apparent that sec. 4 of the Revenue Act of 1857, requires that in listing lands situated outside of cities or incorporated towns the metes and bounds must be given, and that it was so decided in the case of Lachman v. Clark , 14 Cal. 133.
So long as the words of this section stand in their present order and coupled by the conjunction " or," no change in the punctuation can make it clear that the words " giving the metes and bounds," apply to country lands and not to city lands. Considering the whole sentence, it seems more probable that the intention was to direct country lands to be listed without saying in what precise manner, further than " giving" the quantity of acres and the locality and township where situated, and as to city lands not requiring the quantity, but " giving" metes and bounds, or other sufficient description. The probability of this being the intended meaning of the section is strongly corroborated by the fact, that this is substantially the provision upon this subject of every Revenue Act passed previous to the Act of 1857, and is very nearly the language of the Act of 1854, which was the last law previous to the one under consideration. (Act of 1854, 103, sec. 73.) In any way of viewing it, however, the sentence is obscure and the meaning doubtful.
Under these circumstances, if a construction of the sentence had been distinctly given by this Court, and had become a guide for assessors, it should be followed. But no such construction has been given. In two cases the mode of listing country lands under the Act of 1857, has been referred to in general terms, but without a decision being made specially as to the exact application of the words " metes and bounds." In Patten v. Green , 13 Cal. 325, a tract of land lying outside the town of Petaluma was assessed under the Act of 1857, without giving any " metes and bounds," but giving the quantity of acres and the name of the ranch. The Court say that it was properly taxed by this description, within the case of Palmer v. Boling , 8 Cal. 388. In this case of Palmer v. Boling, no metes and bounds were given, and the Court say: " To require a particular description of rural lands would be imposing an unnecessary burden on the officer." This assessment was under the law of 1854, which does not speak of " metes and bounds," and the case is therefore only applicable by being adopted in the case of Patten v. Green, which was an assessment under the law of 1857. The law of 1854 is, however, the same as we have supposed to be the meaning of the law of 1857, and the case of Patten v. Green, in this way, becomes an indirect construction of the law of 1857. In the case of Lachman v. Clark , 14 Cal. 131, the Court say that sec. 4 of the Act of 1857, requires lands outside of a city or incorporated town to be described by giving the metes and bounds, and the number of acres and the locality and township where situated. The exact application of the term " metes and bounds" was, however, not discussed by the counsel who sought to sustain that assessment, he resting his case on other grounds; nor was it specially considered by the Court. The assessment did not give the quantity of acres, nor the township where situated, and was for that reason fatally defective by the undisputed provisions of sec. 4. That under these circumstances the Court coupled " metes and bounds" in a general remark, embracing these undisputed requirements, is not, we think, to be held to be a distinct adjudication on this separate question, certainly not more than the general remarks of a contrary sense, employed in the case of Patten v. Green. Neither case, we think, can be held to be a distinct construction of this section in this precise particular.
Of the many tax cases that have come before us, we do not remember one in which rural lands have been described by metes and bounds; and considering that such a description was not required by any tax law prior to 1857, and considering, to say the least, the very dubious meaning of the law of 1857, and which may reasonably be considered the same in effect as the law of 1854, and considering the influence of the decision in the case of Patten v. Green, we have no doubt assessors have generally interpreted the law as we do, and that very few if any assessments of rural lands made since 1857, any more than those made previously, have given the metes and bounds. A decision now that would overthrow all these assessments, should have plainer grounds to rest upon than the possible construction of so obscure a provision as that of Sec. 4 upon this subject, or the remark in the case of Lachman v. Clark, made under the circumstances we have mentioned.
Rehearing denied.