Ross, J.:
In this case we are asked by the petitioner, who alleges himself to be a tax-payer of the city and county of San Francisco, to grant a writ of mandate compelling the assessor of the said city and county to assess, upon the assessment roll thereof, to various holders of certificates of stock in various corporations the respective shares held by them, and to assess the various depositors in various savings banks the respective sums of money deposited by them. Whether the assessor has or has not assessed to the respective corporations all of their property of every character, and to the respective savings banks all of theirs, including all moneys deposited with them, does not appear from the petition; but as the Legislature has required the assessor to do these things, we must presume that he has or will perform his duty in this respect in due time.
The claim of petitioner, however, we understand to be this: That the assessor must assess to the respective corporations all of their property of every kind, including their franchise, and to the individual stockholders thereof the respective shares of stock held by them; and must assess to the respective savings banks all of their property, including all moneys deposited [600] with them by depositors, and also to the individual depositors the respective sums of money so deposited by them.
If this would, in effect, be assessing the same property twice for the same tax, it cannot be done. The Constitution of the State does not require or authorize double taxation. On the contrary, its language clearly forbids it. Thus: “All property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law.” (§ 1, art. xiii.) To tax a portion of the property more than once would certainly not be taxing all of it in proportion to its value.
A mortgage or trust deed securing a debt is, under the Constitution, to be deemed and treated as an interest in the property affected thereby, and assessable to the owner. The property itself is also to be assessed to its owner; but to prevent what would otherwise be double taxation, the Constitution requires that, in making the assessment, the value of the security shall be deducted from the value of the incumbered property. (§ 4, art. xiii.) So in the case of credits, not secured by mortgage of trust deed, the Legislature may provide that there shall be deducted therefrom debts due to bona fide residents of the State. Hot only does the language of the Constitution neither require nor permit double taxation, but we think it may be safely said that neither the framers of the instrument nor those who ratified it ever supposed that under its provisions there could be any such thins: for both in the debates on the floor of the convention which framed it, and in the arguments of those who advocated its adoption before the people, are to be found repeated disclaimers of any such intention.
But the important question remains, Would what the petitioner asks to have done be, in effect, assessing the same property twice for the same tax? The section of the Constitution which declares that all property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law, also declares : “ The word ' property ’ as used in this article and section is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership; provided, that growing crops, property [601] 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, shall be exempt from taxation. The Legislature may provide, except in the case of credits secured by mortgage or trust deed, for a deduction from credits or debts due to bona fide residents of this State.”
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Ross, J.:
In this case we are asked by the petitioner, who alleges himself to be a tax-payer of the city and county of San Francisco, to grant a writ of mandate compelling the assessor of the said city and county to assess, upon the assessment roll thereof, to various holders of certificates of stock in various corporations the respective shares held by them, and to assess the various depositors in various savings banks the respective sums of money deposited by them. Whether the assessor has or has not assessed to the respective corporations all of their property of every character, and to the respective savings banks all of theirs, including all moneys deposited with them, does not appear from the petition; but as the Legislature has required the assessor to do these things, we must presume that he has or will perform his duty in this respect in due time.
The claim of petitioner, however, we understand to be this: That the assessor must assess to the respective corporations all of their property of every kind, including their franchise, and to the individual stockholders thereof the respective shares of stock held by them; and must assess to the respective savings banks all of their property, including all moneys deposited [600] with them by depositors, and also to the individual depositors the respective sums of money so deposited by them.
If this would, in effect, be assessing the same property twice for the same tax, it cannot be done. The Constitution of the State does not require or authorize double taxation. On the contrary, its language clearly forbids it. Thus: “All property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law.” (§ 1, art. xiii.) To tax a portion of the property more than once would certainly not be taxing all of it in proportion to its value.
A mortgage or trust deed securing a debt is, under the Constitution, to be deemed and treated as an interest in the property affected thereby, and assessable to the owner. The property itself is also to be assessed to its owner; but to prevent what would otherwise be double taxation, the Constitution requires that, in making the assessment, the value of the security shall be deducted from the value of the incumbered property. (§ 4, art. xiii.) So in the case of credits, not secured by mortgage of trust deed, the Legislature may provide that there shall be deducted therefrom debts due to bona fide residents of the State. Hot only does the language of the Constitution neither require nor permit double taxation, but we think it may be safely said that neither the framers of the instrument nor those who ratified it ever supposed that under its provisions there could be any such thins: for both in the debates on the floor of the convention which framed it, and in the arguments of those who advocated its adoption before the people, are to be found repeated disclaimers of any such intention.
But the important question remains, Would what the petitioner asks to have done be, in effect, assessing the same property twice for the same tax? The section of the Constitution which declares that all property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law, also declares : “ The word ' property ’ as used in this article and section is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership; provided, that growing crops, property [601] 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, shall be exempt from taxation. The Legislature may provide, except in the case of credits secured by mortgage or trust deed, for a deduction from credits or debts due to bona fide residents of this State.”
Now, what is the stock of a corporation but its property— consisting of its franchise and such other property as the corporation may own ? Of what else does its stock consist ? If all this is taken away, what remains ? Obviously nothing. When, j therefore, all of the property of the corporation is assessed—its ' franchise and all of its other property of every character—then all of the stock of the corporation is assessed, and the mandate , of the Constitution is complied with. This property is held by the corporation in trust for the stockholders, who are the beneficial owners of it in certain proportions called shares, and which are usually evidenced by certificates of stock. The share of each stockholder is undoubtedly property, but it is an interest in the very property held by the corporation. It is his right to a proportionate share of the dividends and other property of the corporation—nothing more. When the property of the corporation is assessed to it, and the tax thereon paid, who but the stockholders pay it? It is true that it is paid from the treasury of the corporation before the money therein is divided, but it is substantially the same thing as if paid from the pockets of the individual stockholders. To assess all of the corporate property of the corporation, and also to assess to each of the stockholders the number of shares held by him, would, it is manifest, be assessing the same property twice, once in the aggregate to the corporation, the trustee of all the stockholders, and again separately to the individual stockholders, in proportion to the number of shares held by each. As well might it be contended that the property of a partnership should be assessed to the firm, and in addition, that the interest of each partner in the firm property should be assessed to him individually. If I have an interest in partnership property, my interest therein is property. It is the right I have to share in the profits and property of the firm, in proportion to the interest I own. But my property rights are confined to the property held by the firm, just as the property [602] tights of the stockholder in the corporation are confined to the property held by the corporation. In the case of the partnership, take away all of the property of the firm, and I have no longer any property as a partner. In the case of the corporation, take away all of its property, which, it must be remembered, includes its franchise, and the shareholder no longer has any property. The cases are parallel. If in the one case it is competent- to assess to the corporation all of the property held by it, and to the individual stockholders the respective interest owned by each therein, so must it be competent to assess to every partnership the property held by the firm, and to each individual partner his interest therein.' It is clear to our minds that in the one case the partner and in the other the stockholder would be compelled to pay twice on the same property, which is neither required nor permitted by the Constitution. In the case of the corporations to which we have referred, the Legislature has declared that all of the property held by such corporations shall be assessed to them. It has not attempted to exempt any property from taxation not exempted by the Constitution itself, and of course could not do it if it had. It has only said that the property shall be assessed to the corporation, and shall not be again assessed for the same tax. This it had the right to say. (State of Maryland v. C. & P. R. Co. 40 Md. 22; State v. Brannan, 3 Zab. 485; Angell & Ames on Corp. 460.) In the case of the savings banks, it has declared that all moneys deposited with them shall be assessed to the banks, and not to the depositors. These moneys are held by the banks in trust for the depositors. (Civil Code, §§ 517, 577; Hilliard on Taxation, p. 31; Huntington v. Savings Banks, 6 Otto, 388; Colte v. Society for Savings, 32 Conn. 173; Bunnell v. Savings Society, 38 id. 203; Com. v. People, 5 Allen, 428.) And if assessed to the trustee and also to the cestuis que trust would present a clear case of double taxation. Between the bank and the depositor the ordinary relation of debtor and creditor does not exist. (Civil Code, §§ 517, 577, 1912, 309, 579, and authorities supra.) It was clearly within the power of the Legislature to declare to whom the property should be assessed.
Demurrer sustained and writ denied.
Sharpstein, J., McKee, J., and Thornton, J., concurred.