Matter of Dodge , 135 Cal. 512 ( 1902 )

I dissent. The poll-tax is levied and collected under laws passed in pursuance of this mandate of the constitution: "The legislature shall provide for the levy and collection of an annual poll-tax, of not less than two dollars, on every male inhabitant of this state over twenty-one and under sixty years of age, except paupers, idiots, insane persons, and Indians not taxed. Said tax shall be paid into the state school fund." (Art. XIII, sec. 12.)

The proceeds of the tax being appropriated by the constitution exclusively to the state school fund, it is not competent for the legislature to divert it from that destination and turn it, or any portion of it, over to a county or to a city and county.

In the case of San Luis Obispo County v. Felts, 104 Cal. 60, it was very seriously questioned whether the law was constitutional which allowed to assessors a percentage of the tax for making the collection, but the court held, not without some hesitation, that an allowance out of the proceeds of the tax by which it was only made to pay the expenses of its own collection was not an infraction of the constitutional provision above quoted. I have never doubted the correctness of that decision but I cannot see upon what grounds a law can be defended which assumes to turn over fifteen per cent of the poll-taxes of the city and county of San Francisco to the municipal salary fund while limiting the compensation of the assessor to a fixed salary to be paid whether he collects the tax or not. This is simply to make a donation of a portion of the fund devoted by the constitution to the support of the public schools. To allow a percentage of the tax to the agents who collect it has an evident tendency to encourage a close collection by diligent inquiry and attention. To pay a flat salary to the agents upon whom the duty of collection is devolved, and thus to make their compensation precisely the same whether the collections are many or few, is a direct inducement to forego effort and to leave the tax uncollected. It not only makes the donation of the percentage to the municipal treasury purely gratuitous, but it is unjust to residents of other parts of the state, where, under the rule laid down by the general law, a full collection of the tax is encouraged and secured by the special compensation allowed to the county assessors generally. The equal incidence of the tax is thus destroyed by a law which for that reason violates not alone the letter but the spirit and evident purpose of another constitutional provision: —

"The legislature shall not pass local or special laws in any of the following enumerated cases: . . . Tenth, for the assessment or collection of taxes." (Art. IV, sec. 25.)

The policy of the state plainly exhibited by the provisions of the Political Code and the County Government Act, is to encourage a full collection of the poll-tax — a tax enjoined by the constitution — by offering a compensation to the collector strictly proportioned to the amount collected. These are general laws for the collection of a tax, and should have a uniform operation, but if the conclusions of the court are correct they are set aside and their policy defeated by the special provisions of a local law. This is going far beyond anything hitherto claimed for municipal charters. They are, it seems, to supersede not only the general laws of the state, but special provisions of the constitution.

But aside from these considerations, which are not adverted to in the opinion of the court, I dissent from its conclusions upon the grounds which are there considered.

There is a conceded conflict between the provisions of the charter and the Political Code. The Political Code says to the assessor: You shall have fifteen per centum of all poll-taxes collected, as a compensation for your trouble in making the collection. The charter says: I will pay you a salary of four thousand dollars a year for making property assessments. I have no directions to give you in regard to collecting poll-taxes, but if you do collect any, you must hand over to the city and county all that the state allows you for making the collection. Which of these two conflicting laws is to govern? The answer to this question is furnished by section 6 of article XI of the constitution, which subjects all charter provisions to the control of general laws, except in municipal affairs. If, therefore, the collection of poll-taxes is not a municipal affair, the general law governs and the charter provision must give way. We have seen that the collection of the poll-tax is anything but a municipal affair. The proceeds go exclusively to the state, and as to their collection the interests of the municipality and those of the state are directly opposed. The larger the collection, the better for the state; the smaller the collection, the better for the locality. The state school fund, it is true, is reapportioned to the counties, but not in proportion to their respective contributions. The apportionment is based upon the school census, and no matter how few the poll-taxes paid by a county, her proportion of the school fund will remain just the same.

This conclusion is in no degree invalidated by the decision inCounty of Kern v. Fay, cited in the opinion of the court, orSummerland v. Bicknell, 111 Cal. 567, which is cited by counsel. Neither of those cases involved a conflict between a statute of the legislature, passed in the usual way, and a municipal charter. In each the only question was whether a later and more special provision of a statute superseded or repealed an earlier and more general provision of another statute, and that question was decided, upon ordinary rules of statutory construction, in favor of the later and more specific provision. But when the conflict is between a general statute and a city charter the question is no longer one of statutory construction, but is, on the contrary, purely a question of superiority of power of legislation on the subject of the conflicting provisions. There is one legislature which passes statutes of the ordinary kind, and another legislature which adopts or ratifies charters. One is composed of the senate and assembly, acting in conjunction with the governor; the other is composed of the free-holders of the local district, whose proposed charter is subject to ratification by the two houses. Each of these legislatures is supreme within its province — the first in matters affecting the welfare of the entire state, the second in local municipal affairs. It does not by any means follow, therefore, that because a later statute repeals an earlier statute, a provision in a special charter, though of the same nature, will accomplish a similar result. If it relates to a municipal affair, it will govern, but if it goes beyond municipal affairs, it cannot affect the operation of the statute.

The concurring opinion of Justice McFarland rests altogether upon the supposed effect of section 8 1/2 of article XI of the constitution, which empowers the freeholders of the city and county in framing their charter to "provide for" the compensation of county officers.

I think it is giving an unwarranted extension to the due operation of this clause to hold that the freeholders may not only fix the amount of the salary or other compensation payable out of the local treasury for official services, but may also go to the extent of defeating the general policy of the state with reference to a state affair, by depriving an agent of the state of the additional compensation payable exclusively by the state, and allowed as a special inducement to the performance of a duty in which the people of the entire state have a direct interest. No such extended operation of the clause in question is necessary to subserve municipal interests. The more restrictive operation is necessary to the protection of the general interest. We have seen that the legislature is forbidden to pass local or special laws in relation to the collection of taxes. As long as county assessors are made the agents of the state for the collection of poll-taxes in the counties generally, they must perform the same duties in cities and counties organized under freeholders' charters, and it is of vital importance to the whole people that in this matter, so far as the performance of their duties may be incidentally affected by the mode and measure of their compensation, they should be subject to general laws, and exempt from local regulations having any tendency to defeat the policy of the general laws. The freeholders of cities and counties may "provide for" the compensation to be paid their county officers out of the local revenue, but they can and ought to do this in view of, in harmony with, and in subordination to those statutory provisions which the general policy of the state has dictated with reference to the collection of its revenues. The power of the state and the power of the freeholders may thus be exercised without conflict or interference, and the interests of each strictly conserved. If the state pays the assessor out of its own revenues something in addition to his compensation as provided for in the charter, no right or interest of the municipality is infringed, but if the municipality takes from the agent of the state the reward offered for faithful service to the state, there is a direct and mischievous infringement upon the rights of the state.

The principle which I have thus endeavored to enforce is illustrated by the decision of this court in Ex parte Dolan,128 Cal. 460. There it was claimed that the city of Santa Barbara had by its charter conferred exclusive jurisdiction upon its police court in certain classes of misdemeanors which by the general law are within the jurisdiction of justices' courts. The argument in favor of the superior force of the charter provisions was pretty much the same as it is here, but it was held, upon grounds that seem incontrovertible, that the power of the freeholders to establish a police court and define its jurisdiction did not warrant the attempt to make that jurisdiction exclusive within the city limits. The statute giving the like jurisdiction to justices of the peace was held to be unaffected by the charter. And so in this case the charter should be held effective in what it gives to the county officer out of the local treasury, but wholly ineffective in what it attempts to take away from the state officer, so far as that is secured to him by a general law of the state and paid by the state.

I think the judgment of the superior court should have been affirmed.