I concur in the judgments of affirmance, and upon all essential points in the views of Justice Lorigan, with the sole exception that, in my opinion, his conclusion *Page 323 requires that the following clause of section 3628 of the Political Code must be held unconstitutional, so far as it applies in terms to franchises which have a local situs: "If granted by any other authority, they must be assessed in the county in which the corporations, firms, or persons owning or holding them have their principal place of business." The framers of our constitution did not leave it to the legislature to determine where property having a local situs should be assessed. That was a matter which they settled themselves by the provision of section 10 of article XIII: "All property, except as hereinafter in this section provided [i.e. railroad property], shall be assessed in the county, city, city and county, town, township or district in which it is situated, in the manner prescribed by law." If, then, the privilege of using the streets of a city for the purpose of laying and maintaining pipes for the distribution of gas is a franchise having a situs in that city, the fact that it has been granted by "another authority" (the people of the state) gives no warrant to the legislature to say that it shall be assessed and taxed in the city or county where the holder of the franchise happens to have his principal place of business or where he resides. The whole question to be decided, therefore, is the question whether this particular franchise has a local situs, for if it has it is idle to refer to the above-quoted clause of section 3628 of the Political Code as determinative of the controversy.
Upon this question of situs or no situs of the franchise in question it can scarcely be necessary to add anything to what has been said by Justice Lorigan; but I am tempted to put the same view in a form which to me has always seemed unanswerable. Land always has a situs. The ownership of land consists in the right to use it for all lawful purposes, and that right of use constitutes its whole value. If the owner of land grants to another the right of way over it, or the right to lay and maintain pipes through it, the totality of ownership is divided into two separate interests: The original owner retains the right to use the land for every lawful purpose not inconsistent with the exercise of the privilege granted, and his grantee acquires the right to use it for the special purpose named in the grant. It is easy to suppose a case in which the value of the granted privilege *Page 324 or easement exceeds the value of the interest remaining in the grantor, — indeed, such instances are of frequent occurrence; but whether of greater or less value, it is still an interest in that particular piece of land, and no more of an ideal abstraction than the remaining right of the owner to cultivate the soil. The aggregate value of the two rights constitutes the aggregate value of the land, and each is assessable where the land is situated. If this is true of an easement granted in land held in private ownership, it must be equally true of a franchise to use public lands for similar purposes. The privilege is essentially the same, and the only reason for calling one a franchise while the other is denominated an easement is that the former is held by direct grant from the sovereign, while the other is the grant of a private person. The conclusion is that the right to use land within the municipal boundaries of the city of Stockton is assessable only in Stockton for city purposes, and in the county of San Joaquin for state and county purposes. The difficulty and confusion which it is apprehended (according to the dissenting opinion of Justice McFarland) may be caused by our decision in these cases is, I think, purely imaginary, and the apprehension groundless.
There is, of course, a franchise — the franchise to have perpetual succession, etc., common to all corporations for whatever purpose organized — which is always assessable where the corporation has its principal place of business. This franchise is a pure abstraction, and, like the right to collect a promissory note or other chose in action, it has no fixedsitus, but follows the person of its owner, and is assessable where the owner lives, and that, in the case of a California corporation, is the place designated in its articles of incorporation as its principal place of business. The only difficulty to be apprehended is in placing a valuation upon this, the strictly corporate franchise. But that difficulty is not new, and will neither be enhanced nor diminished by the present decision. The method of ascertaining the value of the corporate franchise, sanctioned by this court in some of its decisions, and nowhere disapproved as far as I am aware, is to take the difference between the market value of its shares and the value of its tangible property as the basis of assessment. Whatever difficulty this method involves remains, but remains *Page 325 without addition by reason of anything here decided. For, take the supposed case of a corporation having its principal place of business in San Francisco, and operating gasworks in several other cities. We will suppose that the market value of its shares is one million dollars; that its plant, consisting of furnaces, retorts, tanks, pipes, etc., is now assessed in Sacramento at one hundred thousand dollars, in Stockton at one hundred and twenty thousand dollars, and in San Jose at one hundred and fifty thousand dollars. (For the purposes of illustration three places are as good as a dozen.) The assessor of San Francisco, even on the doctrine of the dissenting opinion, must deduct the aggregate of these sums, three hundred and seventy thousand dollars, from the value of the shares, to arrive at a basis for assessing the corporate franchise. If hereafter, in consequence of the decision of these cases, the assessor of Sacramento values the local franchise at, say ten thousand dollars, of Stockton at twelve thousand dollars, and at San Jose at fifteen thousand dollars, all the additional labor imposed on the assessor of San Francisco will be to add thirty-seven thousand dollars to three hundred and seventy thousand dollars, in order to determine the aggregate amount to be deducted from the market value of the shares. The labor will be inappreciable, and the difficulty nil.
If it be said that confusion will arise out of differences of opinion between the assessor of San Francisco and the assessors of Sacramento, San Joaquin, and Santa Clara as to the true value of the local franchises, I freely admit that such differences of opinion are quite likely to arise; but this is a difficulty which inheres in the matter under any view of the question to be decided. If the different assessors are liable to differ as to the value of a particular interest in land, so are they liable to differ as to the value of the plant of a gas company. The difference between the two cases, if any, is a difference of degree and not of kind, and furnishes no reason for holding that property is assessable in San Francisco when the constitution requires it to be assessed in San Joaquin.