which it must be taxed, and the only limitation of that power is that the rule shall be uniform. Wisconsin Cent. R. Co. v. Taylor Co. 52 Wis. 37, 43, and cases cited. Uniformity means that all kinds of property not absolutely exempt must be taxed alike by the same standard of valuation equally with other taxable property, and co-extensively with the territory to which it applies. Gilman v. Sheboygan, 2 Black, 510. They must be uniform in respect to persons and property within the jurisdiction of the body imposing the same, (Hanscom v. Omaha, 11 Neb. 37,) and all property of any particular class must be taxed alike. Wisconsin Cent. R. Co. v. Taylor Co. 52 Wis. 43, and cases cited; Home Ins. Co. v. Augusta, 50 Ga. 543. It is uniform when it is equal upon all persons belonging to the described class upon which it is imposed. Gatlin v. Town of Tarboro, 78 N. C. 119. To render taxes uniform it is essential that the tax district should confine itself to objects of taxation within its limits, but this with the understanding that the situs of personal property may be the domicile of the owner. Barton v. Kalloch, 56 Cal. 95; People v. Townsend, 56 Cal. 633; People v. Placerville, 34 Cal. 656.

The constitutions of some of the states, in terms or by necessary implication, require all private property to be taxed in proportion to its value. O'Kane v. Treat, 25 Ill. 557; Mobile v. Dargan, 45 Ala. 310; Mobile v. Street Ry. Co. Id. 322; Washington v. State, 13 Ark. 752; McGehee v. Mathis, 24 Ark. 40. The constitution of Kansas differs from the constitution of other states, requiring only a uniform "rate" of taxation and not requiring all property except that which is exempt to be taxed by a uniform rule; hence railroad property in that state may be assessed in one manner and other property in a different manner, and personal property be assessed on different rules, and still all the assessments be held valid. Com'rs of Ottawa v. Nelson, 19 Kan. 238; Gulf R. Co. v. Morris, 7 Kan. 210. The constitution of California, art. 13, § 1, providing that all property in the state, not exempted under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law, requires that the assessor shall proceed to ascertain such value in the manner provided by law. Hyatt v. Allen, 54 Cal. 353. And the provisions requiring that all taxes shall be uniform on the same class of subjects within the territorial authority levying the tax, is merely declaratory of the law before the adoption of the new constitution. Kitty Roup's Case, 81* Pa. St. 211. Where the constitution requires that the valuation must be uniform, and in all cases alike and equal, and the legislature prescribes a different rule, the act is a departure from the constitution and void. Knowlton v. Sup'rs Rock Co. 9 Wis. 410. Equality of taxation means apportioning the contributions of each person towards the expenses of government so that he shall feel neither more nor less inconvenience from his share of the payment than every other person experiences. Kirby v. Shaw, 19 Pa. St. 258. Perfectly equal taxation is perhaps unattainable, (Grim v. School-dist. 57 Pa. St. 433;) it can never be but approximation, (Allen v. Drew, 44 Vt. 174;) as from the nature of the case there can be no uniform rule for making the assessments, (Coite v. Soc. for Savings, 32 Conn. 173;) and for that reason equality of taxation is not enforced by the bill of rights, (Kirby v. Shaw, 19 Pa. St. 258;) but where a moral obligation exists the legislature may give it legal effect, (Lycoming v. Union, 15 Pa. St. 166.)

UNJUST DISCRIMINATIONS. The principle of equality running through our constitutional system does not admit of discrimination in behalf of one citizen to the detriment of another. Mason v. Trustees, 4 Bush, 408. Taxes should

be regulated by fixed general rules, and be apportioned by law according to a uniform ratio of equality, (Sutton v. Louisville, 5 Dana, 28; Woodbridge v. Detroit, 8 Mich. 274; Grim v. School-dist. 57 Pa. St. 433; Knowlton v. Rock County, 9 Wis. 410;) the object being protection of the tax-payer against discriminating exactions, (Lexington v. McQuillan, 9 Dana, 513.) The constitution of Illinois precludes discrimination against classes of persons or property, (Primm v. Belleville, 59 Ill. 142,) and against railroad property, (Bureau County v. Chicago, etc., R. Co. 44 Ill. 229; Chicago, etc., R. Co. v. Boone County, Id. 240.) Restrictions may be necessary to prevent abuses which may not amount to a violation of the rule of uniformity. There may be uniform abuses of the taxing power by reckless and improvident management on the part of local authorities, and the provisions of the constitution requiring the legislature, in establishing municipal corporations, to restrict their powers of taxation so as to prevent abuses, etc., is designed to give further protection in addition to that furnished by the rule of uniformity. Weeks v. Milwaukee, 10 Wis. 242. When the inequality of valuation is the result of a statute of the state, designed to discriminate injuriously against any classes of persons or species of property, the court will grant appropriate relief. People v. Weaver, 100 U.S. 539; Fulton v. National Bank, 101 U. S. 143; Cumming v. National Bank, Id. 153; National Bank v. Kimball, 2 Morr. Trans. 463. A statute in derogation of the rights of property, or which takes away the estate of the citizen, must be strictly construed, (Sharp v. Spier, 4 Hill, 76; Bloom v. Burdick, 1 Hill, 130;) but courts will not interfere on the ground that the tax is unfair or unjust, unless the fundamental law of the land has been violated. Linton v. Mayor of Athens, 53 Ga. 588; Cleghorn v. Postlewaite, 43 Ill. 428; Darling v. Gunn, 50 Ill. 424. See Second Nat. Bank v. Caldwell, ante, 429, and note. Where a law is unconstitutional courts will hold it void, but upon no other ground can it be disregarded. P., C. & St. L. Ry. Co. v. Brown, 77 Ind. 45. So, where statutes impose taxes on false and unjust principles, or operate to produce gross inequality, courts may interpose and declare such enactments void. Com. v. Savings Bank, 5 Allen, 428. See Lowell v. Oliver, 8 Allen, 247; Ould v. Richmond, 23 Grat. 464; Howell v. Bristol, 8 Bush, 493. But they cannot afford relief from the enforcement of laws prescribing modes and subjects of taxation if they neither trench upon the federal authority nor violate any right secured by the constitution. Kirtland v. Hotchkiss, 100 U. S. 491. Courts ought not to declare a law void without a strong and earnest conviction, divested of all reasonable doubt, of its invalidity. Chicago, D. & V. R. Co. v. Smith, 62 Ill. 268; Lane v. Dotman, 4 Ill. 238; People v. Marshall, 6 Ill. 672.

An act which fixes absolute liability in a corporation, and which does not provide "due process of law," is in violation of the bill of rights. Zeigler v. S. & N. R. Co. 58 Ala. 594. See Plumer v. Marathon County, 46 Wis. 163. A statute which attempts to make an assessment conclusive evidence of the amount due for taxes is invalid. Plumer v. Marathon Co. 46 Wis. 163. Where a statute establishes a rule for the estimation of the value of railroad

property for taxation which is in contravention of the constitution, the assessment of taxes made in obedience thereto is invalid. Board of Assessors v. Ala. Cent. R. Co. 59 Ala. 551. A statute which permits deductions for indebtedness to be made from the assessed value of property does not operate to render taxation unequal. Wetmore v. Multnomah Co. 6 Or. 463. Where debts existed which ought to have been deducted, but were not deducted, the assessment was held voidable but not void, the assessors being entitled to notice of the existence of debts which he was entitled to have deducted. Supervisors v. Stanley, 12 FED. REP. 82. That they are totally void, see same case, dissenting opinion of Bradley, J., p. 91. An act of the legislature which refuses to the shareholders of a national bank the same deduction for debts due by him from his shares of stock that it allows to others who have moneyed capital otherwise invested, is in conflict with the act of congress permitting shares of national banks to be taxed. Williams v. Weaver, 100 U. S. 539; and see Ruggles v. Fond du Lac, 53 Wis. 436; People v. Weaver, 100 U. S. 539; People v. Dolan, 36 N. Y. 59; Ankeny v. Multnomah Co. 4 Or. 271; S. C. 3 Or. 386; Pelton v. National Bank, 101 U. S. 143. That a suit to enjoin the collection of a tax under such an act may be enjoined, see Hills v. Nat. Alb. Exch. Bank, 12 FED. REP. 93; and see Second Nat. Bank v. Caldwell, ante, 429, and note. JOURNALS OF THE LEGISLATURE AS EVIDENCE. By the provisions of the state constitution a bill must be read at length on three separate days in each house, unless, in case of urgency, two-thirds of the house, by a vote taken by yeas and nays, dispense with the provisions either as to the manner of reading or the reading on separate days. Weill v. Konfield, 54 Cal. 111. That the journals of the legislature may be examined to ascertain that a bill was constitutionally passed, see Walnut v. Wade, 103 U. S. 683; Perry County v. Railroad Co. 58 Ala. 546; Harrison v. Goody, 57 Ala. 49; Walker v. Griffith, 60 Ala. 361.-[ED.

THE SONOMA COUNTY TAX CASE.

SAN FRANCISCO & N. R. Co. v. DINWIDDIE and others.

(Circuit Court, D. California. September 23, 1882.)

1. STATE CONSTITUTION-CONFLICT OF LAW.

An assessment made in strict accordance with the provisions of the state constitution relating to the assessment of railroad property which violates the provisions of the fourteenth amendment to the constitution of the United States is void.

2. PAYMENT-RECOVERY BACK-DURESS.

A payment under it is not a payment under duress, but is voluntary and cannot be recovered.

This case was argued with the San Mateo Case, ante, 722, and the opinion was delivered at the same time.

James A. Johnson, for plaintiff.

District Attorney Ware, for defendant.

SAWYER, C. J. This is an action on the official bond, as tax collector of Sonoma county, of defendant Dinwiddie against Dinwiddie as principal, and the other defendants as his sureties. The action is to recover something over $18,000, paid by plaintiff to defendant Dinwiddie, under protest, for taxes assessed for the fiscal year 188182. The tax is alleged to have been assessed in pursuance of the provisions of section 10 of article 13 of the constitution of the state of California; and it is urged that such assessment is absolutely void, because said provision, under which the assessment was made, violates the fourteenth amendment to the constitution of the United States, in not giving notice, or affording an opportunity to be heard, and consequently the assessment, if it could be enforced, would take the property of the plaintiff without due process of law. The complaint alleges, as a breach of the condition of the bond, that defendant Dinwiddie advertised the said property assessed, being the franchise, road-way, road-bed, rails, and rolling stock, for sale for said taxes so assessed, and threatened to sell said property, when, to prevent a sale and save its property, and to prevent a cloud being cast upon its title, the plaintiff paid the amount of the tax under protest. The defendant demurs to the complaint.

In San Mateo County v. S. P. R. Co., supra, we have fully examined the question as to the validity of the provision of the state constitution under which this assessment for the tax in question was made, and have held that an assessment made in strict accordance with this provision is in violation of that provision of the fourteenth amendment to the constitution of the United States which says that no "state shall deprive any person of life, liberty, or property without due process of law," and is therefore void. As the assessment was utterly void, it would have afforded no justification for a forced collection of the tax. Being void, as plaintiff alleges that it is, it is insisted by the defendants that the payment was voluntary, and, being so, the money paid cannot be recovered from defendants. This is clearly a voluntary payment within the rule laid down by the supreme court of California in Bucknall v. Story, 46 Cal. 599. It cannot be distinguished from that case. There was no possession of the property in the tax collector to be released in this case. He had never seized and he did not detain, and he did not even threaten to seize or detain any property. He was simply proceeding to sell property out of his possession upon an assessment of a tax that was wholly

void upon its face. Neither the sale nor a conveyance under it could create any cloud on the title. The facts were fully known to the plaintiff, and the plaintiff at least maintained that the assessment and proceedings were absolutely void; and on this proposition the plaintiff turns out to be right. The assessment was claimed to be void, and it was on that very ground that the plaintiff objected to the sale, and paid the money under protest. The means of knowledge of plaintiff were equal to those of the tax collector. One or the other must suffer, if more money than the tax ought to have been, was actually, paid. But the tax collector was a public officer, and was required by the terms of the law, at least, to collect this tax, which was assessed in form, in accordance with the provision of the state consititution, and it is so alleged. There is no more reason for his determining, at his peril, whether the constitutional provision under which he was required to act was valid, than there was for the plaintiff to pay, or decline to pay, at his peril. The defendant, at least, acted in good faith upon what appeared in terms to be the constitution and laws of the state. The plaintiff was bound to know the law. If the plaintiff paid, when there was no actual seizure or restraint of its goods, merely from a fear that it might be mistaken as to the law, it acted upon its own judgment as to what was the best course to pursue. It was merely a question of policy and not coercion. If there was a mistake on its part, it was a mistake of law, which it was bound to know, and not a mistake of fact. It was, in fact, right in its view of the law. At all events the payment was clearly voluntary under the laws of California as settled in Bucknall v. Story, supra, and we know of no subsequent decision of the supreme court of the state to the contrary. This being the law of the state, we are required to follow it. Had this been the only question, we should have had no jurisdiction, and the case would have been remanded to the state court, where this rule of law would have been enforced. The case was retained only because it presented the question arising under the fourteenth amendment, and being obliged to retain the case for the determination of that question, it is necessary to dispose of all the questions necessarily arising in it. So, also, there was no duress, as that term is defined in the Civil Code, § 1569. There was, certainly, no duress of the person, and there was no "detention of property" at all, it never having been seized, and, consequently, no "unlawful detention of the property of the plaintiff." All the other cases. referred to have some difference in circumstances, such as actual seizure and detention, constituting duress, as thus defined by the