The

WILBUR, J., Concurring.-I concur in the judgment. sole question in this case is the validity of the ordinance imposing a license tax upon the petitioner's business. It is conceded that under the general power of taxation this might be done. It is contended, however, that, under the provisions of the charter of San Francisco, that power is expressly taken away from the board of supervisors. This question turns upon the provisions of the charter concerning a permit. If the business is one requiring a permit it is taxable; if not, it cannot be taxed. As shown in the main opinion, the business in question is one for which, under the provisions of the charter, a permit may be required. It follows that the business is properly subject to a license tax. Whether or not the provisions of the charter or ordinances passed in pursuance thereof requiring a permit are valid as an exercise of the regulatory power over such business vested. by the constitution and charter in the city government is not involved in this case. The use of the term "permit" in the charter is of no significance in the case at bar except in so far as it describes the character of business he is conducting. What is said in the main opinion concerning the propriety of requiring a permit and vesting the power to grant or withhold the same in the sound discretion of some municipal officer or body is immaterial. It is for that reason that I do not concur in the main opinion. The rules with reference to the authority of municipalities to grant or withhold permits are thoroughly established in this state and need not be discussed. I do not think that under these rules the arbitrary power to grant or withhold permits for the conduct of the business of a second-hand bookstore can exist. As the point is not involved in the case, and the law is well settled, I deem it unnecessary to say more upon this subject, and have only said this much in order to indicate my reason for not fully concurring in the main opinion.

[S. F. No. 9324. In Bank.-December 28, 1921.]

THE UTAH CONSTRUCTION COMPANY (a Corporation), Appellant, v. FRIEND WILLIAM RICHARDSON, as Treasurer, etc., Respondent.

[1] TAXATION-CORPORATE FRANCHISES-METHOD OF VALUATION-DISCRETION OF BOARD OF EQUALIZATION CONSTITUTIONAL LAW.Under section 14 of article XIII of the constitution, requiring that all franchises, other than those expressly provided for in the section, shall be assessed "in the manner to be provided by law," it was permissible for the legislature to commit to the board of equalization the duty of selecting the mode of ascertaining the cash value of the different elements dealt with in determining corporate excess instead of requiring the board to compute assessments according to a value-finding rule prescribed by the legislature.

[2] ID. ASSESSMENT BOARDS-PERFORMANCE OF OFFICIAL DUTY-PRESUMPTION. It is a rule applicable to assessors and to boards hav ing assessing powers that it is presumed that the assessing officers have properly performed the duties entrusted to them, and, consequently, that their assessments are both regularly and correctly made.

[3] ID. RECOVERY OF FRANCHISE TAXES-BASIS OF TAXATION-BURDEN OF PROOF. In an action to recover corporation franchise taxes paid to the state under protest, the burden is upon the plaintiff to prove its contention that the taxes were not based on the valuation of the franchise.

[4] ID. EXCESSIVE TAXES-REVIEW.-In the absence of evidence that assessments were fraudulently or mistakenly made, or that an improper method of valuation was pursued, consideration cannot be given to a claim that the taxes were excessive.

APPEALS from judgments of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge. Affirmed.

The facts are stated in the opinion of the court.

B. M. Aikins for Appellant.

U. S. Webb, Attorney-General, and Frank L. Guerena, Deputy Attorney-General, for Respondent.

1.

Taxation of corporate franchise in the United States, note, 57 L. R. A. 33.

LENNON, J.-The Utah Construction Company, a corporation organized under the laws of the state of Utah and transacting business in Utah, California, and elsewhere, appeals from judgments rendered against it in two actions instituted by the said corporation against the treasurer of the state of California for the recovery of taxes paid to the state under protest in the fiscal years 1914-15 and 1915-16. The taxes were paid pursuant to assessments made by the state board of equalization and are respectively $1,000 and $2,268 in amount. With the exception of dates and figures, the pleadings, evidence, and findings in the two cases are practically the same, and by stipulation the evidence and judgment-roll in both cases are before this court in a single transcript.

Section 14 of article XIII of the state constitution, pertaining to taxation, is a new section, adopted in November, 1910. The pertinent portion of this section reads as follows: "(d) All franchises, other than those expressly provided for in this section, shall be assessed at their actual cash value, in the manner to be provided by law, and shall be taxed at the rate of one per centum each year, and the taxes collected thereon shall be exclusively for the benefit of the state." (Italics ours.) The italicized words afford the basis for the attack in the instant case, for appellant contends that legislative regulation of the manner of making an assessment is a prerequisite to a valid assessment when the constitution. requires such legislation (McHenry v. Downer, 116 Cal. 20, [45 L. R. A. 737, 47 Pac. 779]), that the legislature failed to prescribe the manner in which franchises were to be assessed and, therefore, that the state board of equalization was without authority to assess appellant's franchise. Whether or not there has been a compliance with the constitutional requirement in this respect is the first question for consideration.

[1] In a statute expressly enacted for the purpose of carrying into effect the provisions of section 14, article XIII, of the state constitution, the legislature has, among other things, provided for the furnishing to the state board of equalization of information deemed important in ascertaining the value of franchises, that the board shall determine the value of the franchises from the information thus supplied and that the apportionment of taxes shall be based

upon the value obtained. (Stats. 1911, pp. 530, 541.) Consequently, in so far as the prescribing of the "manner" in which assessments are to be made imports the regulation of details of administration, the legislature has left little to be desired in its compliance with the constitutional mandate that such administrative machinery for making assessments be provided by law. Therefore, appellant necessarily takes the position that the expression quoted from the constitution refers not only to the general procedure for assessing franchises, but that the term "manner" also signifies the rule to be followed by the board in determining the value of the franchises, or, in other words, that the constitution places upon the legislature the duty of specifying the weight to be accorded the various facts required to be reported and the mathematical process to be adopted by the board in arriving at a valuation of a franchise from the information before it. In this connection it must be noted that this court held, in the case of Miller & Lux v. Richardson, 182 Cal. 115, 127, [187 Pac. 411], that, "when the constitution in article XIII, section 14, subdivision (d), provides for the assessment and taxation of corporate franchises, it means the so-called corporate excess, although such is not the usual, nor, strictly speaking, a proper, use of the word 'franchise. """Corporate excess" is defined in the case cited as "the difference between the value of its [the corporation's] outstanding stocks and bonds as determined by market quotations, the earnings of the company, or otherwise, and the value of its tangible or physical properties. The theory is that the value of the company's outstanding stocks and bonds represents the value of its total assets, so that the difference between this total and the value of the company's physical properties represents the value of the company's intangible assets, and an assessment of the corporate excess, that is, of this difference, is an assessment of all the company's so-called intangibles." (Miller & Lux v. Richardson, 182 Cal. 115, 117, [187 Pac. 411.) It follows from this decision that, by the very use of the word "franchises," the constitution itself dictates, in a measure, the process to be pursued by the board of equalization in estimating the value of the property to be taxed. The constitution itself further provides that the franchises shall be taxed at their actual cash value. The scope of appellant's attack is, therefore, confined to the single point

that the legislature has failed to select and prescribe a particular rule for appraising the total assets and the tangible property of the corporations, items which must be considered in ascertaining the "corporate excess."

The legislature has provided for the filing by the owner or holder of every taxable franchise of a written report contain. ing detailed information concerning capital stock, bonds, debts, property, and other matters which the legislature evidently regarded as essential to a proper assessment of the value of franchises. (Stats. 1911, pp. 530, 541.) No attempt was made to direct the board of equalization as to how it should employ such information in arriving at the value of the total assets and tangible property of the corporations, the selection of the method calculated to lead to the most accurate valuation was left to the discretion of the said board. As a general rule, it is not essential that the legislature prescribe the method of valuation to be employed, but it may delegate to its taxing officers the power to adopt a suitable method and, in the latter case, the assessors must value the property according to their best judgment and with honest purpose. (Western Union Tel. Co. v. Missouri, 190 U. S. 412, 425, [47 L. Ed. 1116, 23 Sup. Ct. Rep. 730, 733, see, also, Rose's U. S. Notes]; Mexican Petroleum Corp. v. Bliss (R. I.), 110 Atl. 867, 871; 1 Cooley on Taxation, 3d ed., p. 754.) The general requirement in the state constitution that the legislature fix the "manner" in which the assessment is to be made does not limit the power of the legislature to invest the taxing board with the right to choose a rule of valuation. This question was passed upon in State v. Wells Fargo & Co., 38 Nev. 505, [150 Pac. 836], where the state constitution provided: "The legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal and possessory The court said: "It is further contended, however, that the legislature has failed to adopt any rule or regulation governing the manner of determining the value of the intangible property of the appellant corporation, and without such rule or regulation having been prescribed by the legislature, the revenue officers of the state are unauthorized to make an assessment. We think this objection sufficiently answered by the decision of this court