I dissent from the conclusion announced above because I cannot accept the construction given by the court to that portion of section 4290 of the Political Code which refers to the compensation of county assessors for extra work done by them under section 3820 of the Political Code, which said work is not within their general duties as defined by section 4125 of the Political Code. The paragraph in question reads:
"Provided and except, that the assessor shall be entitled to receive and retain for his own use, unless in this title otherwise provided, six per cent of personal property tax collected by him, as authorized by section three thousand eight hundred twenty . . ."
Political Code, section 3820, reads: "The assessor must collect the taxes on all property when, in his opinion, said taxes are not a lien upon real property sufficient to secure the payment of the taxes. The taxes on all assessments of possession of, claim to, or right to the possession of land and the taxes on taxable improvements located upon land exempt from taxation, shall be immediately due and payable upon assessment and shall be collected by the assessor as provided in part III, title IX, chapter VIII of this code, . . ." *Page 197
It is held in the majority opinion that the words "personal property" as found in said first quoted section must be denied their ordinary meaning and be limited by the special provisions found in section 3617 of the Political Code, relating to taxation, which said section in this connection reads: "Definitions. Whenever the terms mentioned in this section are employed in this act, they are employed in the senses hereafter affixed to them: . . . The term `real estate' includes: 1. The possession of, claim to, ownership of, or right to the possession of land. . . ."
In other words, the holding is that oil leases, and all such property as possession of, claim to, or right to the possession of land, shall not be classified as personal property under section 4290. But at the outset we are met with the fact that, under said section 3820, the assessor must assess and collect taxes upon this species of property as though it were personal property. It is only upon the theory that it is in legal effect personal property that the summary method of assessment and collection of taxes thereon may be lawfully applied. This is the undeniable construction of the opinion of this court in the case of Mohawk Oil Co. v. Hopkins, 196 Cal. 148 [236 P. 133].
The construction given said section 3820 in the Mohawk Oil Co. case and the construction here given it by our court cannot be harmonized. It was because oil leases partook of the nature of personalty rather than realty that they were classified as personalty and this classification justified under the constitution, article IV, section 25, which prohibits special laws for the assessment or collection of taxes. If this class of property is not personal property, then so much of said section as provides for the assessment and collection of taxes upon it is void under said provision of the constitution. It is thus seen that there is a lack of harmony between sections 3617 and 3820.
The truth is that this kind of property is classified as personal property in certain instances, even in the tax laws of the states themselves. Observe article XIII, section 9a, of the constitution, adopted in 1924, which reads: "The taxes levied upon personal property for any current tax year where the same is not secured by real estate shall be based upon the tax rate levied upon real property for the preceding tax year. Nothing in this section shall be construed to prohibit *Page 198 the equalization each year of the assessment on personal property in the manner now or hereafter provided by law." If these words "personal property" do not include all species mentioned in said section 3820, then what rate of taxation shall the assessor apply to oil lease properties?
Again, take section 3824 of the Political Code, which provides for a rebate where excess taxes have been collected, and the following language is found: "Such warrant shall state that it is for refund of excess county tax on unsecured personal property collected by the county assessor and shall state the year for which the tax was collected and the number of the assessment." If unsecured personal property does not include oil leases, then no provision for a refund has been made for an overpayment of tax on this species of property and again the constitution is violated.
But from another angle the matter seems clear. The assessor under his general duties assesses but does not collect taxes. For pursuing and obtaining taxes, where unsecured, the law intended to give him compensation. This statute allowing it is in another part and title of the Political Code from the one on taxation. Is it reasonable to suppose, therefore, that the legislature meant to give him compensation for one duty performed under section 3820 and to deny him compensation for another duty performed thereunder by the selfsame process and in the selfsame manner? A leasehold estate is personal property. (Jeffers v. Easton,Eldridge Co., 113 Cal. 345 [45 P. 680]; Summerville v.Stockton Milling Co., 142 Cal. 529 [76 P. 243]; Guy v.Brennan, 60 Cal.App. 452 [213 P. 265].) Why, then, may not these words in section 4290 be allowed their ordinary significance, or, if this may not be done, why may not the phrases "personal property tax," "authorized by section three thousand eight hundred twenty," be held to cover any tax collected under said section as all such taxes are in fact collected in the same manner and by the same process as taxes upon personal property?
To my mind section 4290 of the Political Code is in no way restricted by section 3617 thereof. Moreover, the plain intent of the legislature was to give the assessor six per cent of all taxes collected by him pursuant to said section 3820. The result of this decision, if it is allowed to stand, is that many of the county assessors of the state will be required to *Page 199 perform difficult and exacting services without compensation. Lack of incentive will cause a loss of revenue. It is unfortunate if an unusual situation in one county causes a mistaken interpretation of a statute of general application.
I think the judgment should be affirmed.
Rehearing denied.
Preston, J., dissented.