Page images

into which the purchase money was paid. [Amendment, approved March 30, 1878; Amendments 1877-8, 63; took effect immediately.]

3573. Certain applications made valid.

SEC. 3573. All applications made prior to March twenty-fourth, eighteen hundred and seventy, for the purchase of lands under the provisions of an act to provide for the management and sale of lands belonging to the state, approved March twenty-eighth, eighteen hundred and sixty-eight, if there was not, on the twenty-fourth of March, eighteen hundred and seventy, two or more applicants for the purchase of or conflicts between claimants of the same land, are valid, although the affidavits on which such applications were based are neither in form nor substance in compliance with the provisions of such act.

3574. Fees, application of.

SEC. 3574. Each application for lands must be accompanied by a fee of five dollars, and no application shall be received, filed, or noted in any way until such fee is paid. The surveyor-general shall charge the same fees as are allowed the register for like services; and all fees collected by either the surveyor-general or register shall be paid into the state treasury on the first Monday of each and every month, and placed to the credit of the general fund; and said officers shall, on the first Monday of each month, make a written report to the state controller, stating the amount of fees so paid, together with the sources from which they were derived, and the several amounts by items. The surveyor-general and register, whenever it may be necessary, may purchase such maps and records as the needs of their office may demand, but all claims against the state, authorized by this section, shall be certified to the state board of examiners, and if the same be allowed, the board shall direct the controller of state to draw his warrant in payment of the same, payable out of the general fund. [Amendment, approved February 10, 1876; Amendments 1875–6, 57; took effect from passage.]

Fees must be collected by the surveyorgeneral: People v. Gardner, 55 Cal. 304.

The act of April 28, 1880, Amendments 1880, 110, Ban. ed. 545, from which some of Applications to be retained sixty days. SEC. 6. All applications, under whatsoever act, filed in the surveyor-general's office, must be retained sixty days before approval, and must be approved (when there is no conflict) by the surveyor-general, at the expiration of six months.

the foregoing amendments relating to public lands are taken, contained the following additional section, which took effect immediately on passage of the act:



8584. Commissioners to manage.

SEC. 3584. The governor of this state and the eight other commissioners appointed by the governor on the twenty-eighth day of September, eighteen hundred and sixty-four, in accordance with the terms of an act of congress entitled an act authorizing a grant to the state of California of the Yosemite valley and of the land embracing the Mariposa big tree grove, approved June thirteenth, eighteen hundred and sixty-four, constitute a board to manage premises. Any vacancy occurring in the board may be filled by the appointment of the governor. The commissioners are known as to manage the Yosemite valley and the Mariposa big tree grove," and under such name they and their successors may sue and be sued, and have full power


"the commissioners

to manage and administer the grant made and the trust created by the act of congress, and to make and adopt all rules, regulations, and by-laws for their own government, and the government, improvement, and preservation of such premises.

Commissioners are state officers: People v. Ashburner, 55 Cal. 517. This case contains an interesting review of the laws applicable to the commissioners of the Yosemite valley. 3585. Guardian, and his compensation.

With respect to the powers of the commissioners over settlers who intended to pre-empt portions of the Yosemite valley, see Low v. Hutchings, 41 Id. 634.

SEC. 3585. They may appoint a guardian of the premises, removable at their pleasure, who must perform such duties as they may prescribe, and may receive such compensation as they may fix, not to exceed five hundred dollars per


3586. Report of commissioners.

SEC. 3586. The commissioners must make a report of their proceedings and of the condition of the premises, through the governor, to the legislature, at every regular session thereof.

An Act for the improvement and preservation of the Yosemite valley and the Mariposa big tree


[Approved April 1, 1878; 1877–8, 929.]

This act appropriated ten thousand dollars to construct bridges in the valley and for its improvement and preservation, and to construct a wagon-road through and around the grove. The legislature of 1877-8, on March 20, 1878 (1877-8, 1077), adopted a concurrent resolution, requesting of the commissioners of Yosemite

valley that no future leases should be made in the valley of more than ten acres, and that when leases allowed fencing, the land leased and fenced should be used only for hotel and other purposes for the accommodation of visitors.

An Act to provide for the management of the Yosemite valley and the Mariposa big tree grove.

[Approved April 15, 1880; 1880, 44 (Ban. ed. 205).]


SECTION 1. The governor of the state of California, and the eight other commissioners appointed by him, in accordance with the act of congress entitled "An act authorizing a grant to the state of California of the Yosemite valley and the land embracing the Mariposa big tree grove," approved June thirteenth, eighteen hundred and sixty-four, shall constitute a board to manage such premises, and the governor shall be ex officio member of the commission and president of the board. The term of office of said commissioners shall be four years; provided, that the eight first appointed shall so classify themselves that four shall go out of office in two years, and four in four years; and hereafter the appointments shall be made for each two years. Vacancies occurring in said commission from death, resignation, or other causes, shall be filled by appointment by the governor, to serve for the unexpired term only.

Title and powers.

SEC. 2. The commissioners shall be known as the "commissioners to manage the Yosemite valley and the Mariposa big tree grove," and they and their successors shall have power to sue and be sued, and have full power to manage and administer the grant made and the trust created by said act of congress, and to make and adopt all rules, regulations, and by-laws for their own government, and government, improvement, and preservation of such premises. Principal place of business-Compensation.

SEC. 3. The principal place of business of said commissioners shall be in the Yosemite valley, and they shall meet at their office in said valley on the first Wednesday of June of each year, and may meet oftener in Yosemite, or in San Francisco, or Sacramento, when a majority of the commissioners deem it expedient to do so. Not less than thirty days' notice of such meeting shall be given in the official newspapers of the counties of Mariposa and Tuolumne, and in one newspaper of the city and county of San Francisco; and all meetings of the board of Yosemite commissioners shall at all times be open to the public. The said commissioners shall receive no compensation other than necessary traveling expenses incurred in performing the duties of the board as prescribed in this act.


SEC. 4. Said commissioners shall elect a suitable person as guardian of the Yosemite valley and Mariposa big tree grove, who may be one of said commissioners. Said guardian shall hold his office during the pleasure of the board of commissioners, shall be subject to their orders, and may be removed at any regularly called meeting of said commissioners. He shall receive the sum of one hundred and twenty-five dollars per month, payable monthly, which salary shall be paid from the state treasury in the same manner as the salaries of state officers are paid. All moneys derived from leases of privileges within the grant of the Yosemite valley and Mariposa

big tree grove shall be expended in the preservation and improvement of the valley, or the roads leading thereto, by order of the board of commissioners and under the supervision of said guardian. No exclusive franchise of any kind shall be granted by said commissioners. All accounts relating to the receipts and expenditures of money, as of all papers, vouchers, and doc uments belonging to the business transactions of said board of commissioners, shall at all times be open to public inspection. All moneys received by said commissioners, from whatever source, shall be deposited in the state treasury, and there known as the Yosemite fund, and the state treasurer shall pay out said fund only upon the warrant of the state controller. All disburse ments of said moneys shall be in the following manner: The said commissioners shall draw their warrant upon the state controller, and the controller shall draw his warrant upon the state treasurer, and the treasurer shall thereupon pay the same. It shall be unlawful for the commissioners to disburse, or cause to be disbursed, any such moneys in any manner different from that specified in this act.

Delivery of books, papers, etc.

SEC. 5. The said commission shall, immediately after organizing, demand from the commis sioners now acting all the books, papers, and documents of any and every kind pertaining to the business of said board, and it shall be the duty of the commissioners now acting to inmediately comply with said demand.

SEC. 6. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed, and this act shall take effect from and after its passage.

Sections three and four were amended to read as above by an act approved March 18, 1885, to take effect immediately.

An Act to appropriate money for the purchase of the trails within the limits of the grant of the Yosemite valley and Mariposa big tree grove, and to improve and preserve the territory within the limits of said grant.

[Approved March 4, 1881; 1881, 49.]

This act appropriated twenty-five thousand dollars for the purpose indicated.

An Act to appropriate money for the purchase, construction, and completion of avenues, roads, trails, walks, and bridges, and generally to improve and preserve the territory within the limits of the Yosemite valley and Mariposa big tree grant.

[Approved March 3, 1885.]

This act, taking effect immediately, appropriated twenty-five thousand dollars for the purpose indicated.

An Act to authorize the construction and leasing of a hotel in Yosemite valley, and to appropriate money therefor.

[Approved March 9, 1885.]

SECTION 1. The commissioners to manage the Yosemite valley and the Mariposa big tree grove are hereby authorized and empowered to construct a hotel in Yosemite valley, at a cost not to exceed the sum of forty thousand dollars, and upon its completion, to lease the same for such sum as shall annually produce not less than three per cent upon the cost of the same. Said hotel shall be conducted in such manner as said commissioners shall direct. No exclusive privilege shall be granted by the commissioners in the keeping of hotels in Yosemite valley.

SEC. 2. All rents received from said hotel shall be paid into the state treasury.

SEC. 3. The sum of forty thousand dollars is hereby appropriated out of any moneys in the state treasury not otherwise appropriated, to be used for the following purposes, to wit, for the construction of a hotel in Yosemite valley.

SEC. 4. The controller of state is hereby authorized to draw his warrants, which in the aggre gate shall amount to the sum of forty thousand dollars, and the treasurer of state to pay the said commissioners the sum of forty thousand dollars, for the uses and purposes specified in sec

tion three of this act.

SEC. 5. This act shall take effect from and after its passage.



3596. Title vested in state-Who may be interred therein.

SEC. 3596. The fee to the state burying-ground, in the city cemetery of the city of Sacramento, is in the people of the state of California, and there may be interred therein any person who, at the time of his death, was a state officer or a member of the senate or assembly.

3597. Duties of trustees.

SEC. 3597. The board of trustees of the state burying-ground have the control and management of the grounds and the expenditure of all moneys appropriated for the maintenance or improvement thereof.

Trustees are appointed by the governor with Burial: See an interesting article in 16 Cent. the consent of the senate: Sec. 368; and are L. J. 161, entitled "Grave-yard Law."

civil officers: Sec. 343.






















Power of taxation is an incident of sovereignty employed to secure a revenue for its maintenance. Its exercise belongs to the states independent of the United States government, affected only by those laws which congress may enact with respect to the property of the United States, and the revenues thereof: McCulloch v. Maryland, 4 Wheat. 316; Lane Co. v. Oregon, 9 Wall. 77; Railroad Co. v. Peniston, 18 Id. 29. And it attaches alike upon everything within the jurisdiction of the state, not the property of the United States nor means employed for the performance of the functions of the United States: People v. Coleman, 4 Cal. 47. The power is supreme, in the absence of constitutional restrictions: McCulloch v. Maryland, 4 Wheat. 316; McCauley v. Brooks, 16 Cal. 11; Beals v. Amador Co., 35 Id. 624; People v. Pacheco, 27 Id. 175; Taylor v. Palmer, 31 Id. 240; S. & V. R. R. Co. v. Stockton, 41 Id. 148: San José v. S. J. & S. C. R. Co., 53 Id. 475; Mason v. Kennebec etc. Co., 31 Me. 215; Mount Wash. R. R. Co. Petition, 30 N. H. 135; Bank of Chenango v. Brown, 26 N. Y. 467; Swan v. Williams, 2 Mich. 442; Bennington v. Park, 50 Vt. 178. To the legis lative departinents of the respective state governments has this power been delegated: De Witt v. Hays, 2 Cal. 463; McCauley v. Brooks, 16 Id. 11; Blanding v. Burr, 13 Id. 343; People v. McCreery, 34 Id. 432; People v. Pacheco, 27 Id. 175; Savings and Loan Society v. Austin,











3607. Property subject to taxation.

SEC. 3607. All property in this state, not exempt under the laws of the United States, excepting growing crops, property used exclusively for public schools, and such as may belong to the United States, this state, or to any county, or municipal corporation within this state, is subject to taxation as in this code provided; but nothing in this code shall be construed to require or permit double taxation. [Amendment, approved March 7, 1881; Statutes and Amendments 1881, 56; in effect from its


46 Id. 415. In this governmental agent is reposed the trust of devising the manner of laying and collecting the tax: De Witt v. Hays, 2 Id. 463; State v. Lancaster Co., 4 Neb. 540; Providence Bank v. Billings, 4 Pet. 563. In performance of this trust, constitutional restriction must be observed; the tax, for example, must be uniform: Blanding v. Burr, 13 Cal. 343; Beals v. Amador Co., 35 Id. 624; and the legislature cannot except certain articles of private property from the operation of the revenue laws, where the constitution says in effect that all property must be taxed: People v. McCreery, 34 Id. 433; People v. Gerke, 35 Id. 667; People v. Black Diamond Co., 37 Id. 54; People v. Whartenby, 38 Id. 461; People v. Eddy, Id. 331. The constitution points out the general principle upon which taxation is to be imposed; the extent to which it may be carried is left to the legislative discretion: S. & V. R. R. Co. v. Stockton, 41 Id. 148; Savings & Loan Society v. Austin, 46 Id. 415.

What objects may be taxed: See sec. 3617. Property in transitu, as of a traveling circus, not taxable: Robinson v. Longley, 1 West Coast Rep. 306 (Nev.).

All property subject to taxation.-"Real estate" includes what: See sec. 3617, post, and note.

"Property" defined: See sec. 3617, post, and note.

Exemptions. The power of the state legislature to exempt any private property from taxation rests upon a construction of the constitution of that state. It is now conceded that where it is not forbidden the right to exempt is involved in the power to apportion taxes: Butler's Appeal, 73 Pa. St. 448; State v. Parker, 33 N. J. 312; Indianapolis v. Sturdevant, 24 Ind. 391; Hill v. Higdon, 5 Ohio St. 243; State v. North, 27 Mo. 464, all referred to by Cooley, Taxation, p. 145, where, after making a statement similar to the above, the author continues: "The right is supposed to be exercised on reasons of state policy, and presumptively such exemptions contribute to the general public benefit. Exemptions thus granted on considerations of public policy may be recalled whenever the legislative view of public policy shall have changed." While these views und and apparently well recognized, it is equally well settled, for this state at least, that in the face of a constitutional provision requiring all property, that is, private property, to be taxed, and this equally and uniformly, an attempted exemption of any of such property cannot be sustained: People v. McCreery, 34 Cal. 432, containing a lengthy consideration of the point; People v. Hibernia Bank, 51 Id. 243; People v. Whartenby, 38 Id. 461; People v. Eddy, 43 Id. 331; Lick v. Austin, Id. 590; People v. Gerke, 35 Id. 677; People v. Latham, 52 Id. 598. But the crediting of taxes heretofore paid under an invalid levy does not amount to an exemption from taxation of the property upon which they were levied: People v. Latham,



Exemptions are not presumed, and must be shown clearly to be within the legislative intent by the one who seeks their benefit: Del. R. R. Tax, 18 Wall. 225; North Mo. R. R. Co. v. McGuire, 20 Id. 46; Erie R. R. Co. v. Pennsylvania, 21 Id. 492; Macon v. Cent. R. R. Co., 50 Ga. 620; Delaware v. Bank of Smyrna, 2 Houst. 99; Burroughs on Taxation, sec. 70.

by the state: People v. Morrison, 22 Cal. 73; People v. Shearer, 30 Id. 645; Hall v. Dowling, 18 Id. 621; High v. Shoemaker, 22 Id. 363. But improvements on public lands, owned either by a pre-emptioner or erected without license, may be taxed by the state, and likewise the possessory right: People v. Shearer, supra; and see sec. 3617, subdivision second, 2. The interest of the federal government is not affected by such taxation, and the persons assessed have that which, protected by the laws of the state, ought to contribute to its maintenance: Id. Land was held to cease to be public domain, beyond the power of the state to tax, when private individuals have made application therefor, paid the purchase money, and received the certificate from the land-office. It was thought to be thenceforth private prop erty, and as such subject to taxation: People v. Shearer, supra, citing Gwynne v. Niswanger, 15 Ohio, 36S; Astrom v. Hammond, 3 McLean, 108; Carroll v. Perry, 4 Id. 26; Ross v. Super visors Ontagamie Co., 12 Wis. 38; Carroll v. Safford, 3 How. 441. But this doctrine has been modified. Non-payment of costs of survey still makes the land exempt from taxation: Railway Co. v. McShane, 22 Wall. 444; R. R. Co. v. Prescott, 16 Id. 603; and so an unselected railway grant: Iowa Homestead Co. v. Webster Co., 21 Iowa, 221. California cases follow 16 Wall. 604, viz.: C. P. R. R. Co. v. Howard, 51 Cal. 229; S. C., 52 Id. 227. And on the authority of the decision of the federal supreme court it is now admitted that land can only be taxed where the patent has issued to the private proprietor, or where he has a "perfect equity:" Id.; People v. Donnely, 58 Id. 144. There must be borne in mind, however, the distinc tion between the land and the possessory interest therein, which, when obtained from the state, is undoubtedly taxable: Id.; and which has been held liable to taxation, although as serted with regard to the domain of the United States: See supra.

Exemptions in this section-Growing crops. The exemptions here enumerated conform to Const. Cal., art. 13, sec. 1. Prior to this constitutional exemption of growing crops, the attempted statutory exemption thereof was not sustained: People v. Gerke, 35 Cal.


The means or agencies of the federal government, provided or selected as necessary or convenient to the exercise of its functions

cannot be subjected to the taxing power of the states: Cooley on Taxation, 57; Burroughs on Taxation, c. 7, where this branch of the taxing power of a state is elaborately considered.

Public schools.-Constitutional authority for this exemption: Art. 13, sec. 1; and see Burroughs on Taxation, sec. 71. Under a former act in this state all charitable institutions and asylums supported in whole or in part by the state were exempted from taxation: S. F. L. Protection and Relief Socier Story, 30 Cal. 65. The constitutional provision that taxation must be uniform is not violated by a revenue act exempting church and school lands: High v. Shoemaker, 22 Id. 363; People v. McCreery, 34 Id. 432.


Bonds of the United States cannot be taxed by the state: People v. Home Ins. Co., 29 Cal. 533; Bank Tax Case, 2 Wall. 200; Chicago v. Lamb, 52 Ill. 414; Bank of Kentucky v. Com missioners, 9 Bush, 46; Opinion of Justices, 5 N. H. 634; or treasury notes or government securities: State v. Haight, 37 N. J. L. 182; Banks v. Mayor, 7 Wall. 16; Banks v. Super. visors, Id. 28. Independent of the power conferred by congress, shares in a national bank are not subject to taxation. Taxing the bank is prohibited, but under the limitations imposed by congress, the holders of shares may be taxed thereon: Miller v. Heilbron, 58 Cal. 133; MeCulloch v. Maryland, 4 Wheat. 316, the leading case on this branch of the question; and Burroughs on Taxation, 124 et seq. Railroads, or corporations generally, deriving their existence

Property belonging to the United States. The prohibition here upon the power of the state to tax the property of the United States is the outgrowth of a fundamental principle in our public polity. The states and the United States are independent, and each is in its sphere supreme; that neither may encroach upon the under state law, holding its property within province of the other, each therefore reserves to state jurisdiction, cannot escape state taxation the other the exclusive prerogative of taxing its on the ground that it is one of the instrumenown belongings. It is beyond question, forexam- talities of the federal government, it having re ple, that lands of the United States lying within ceived congressional aid, and in return thereof state boundaries are exempted from taxation having undertaken certain duties on behalf of

« PreviousContinue »