The opinion
EDMONDS, J., Dissenting.
I cannot agree with the conclusions reached by my associates. By the constitutional amendment in controversy (article XI, section 20), the expenditures of the respondent city and county shall not in any year exceed by more than five per cent its expenditures for the preceding year unless authorized by a vote of the people or “unless previously authorized by the State Board of Equalization in such manner as may be provided by law”. It also provides that “the legislature shall pass all laws necessary to carry into effect the provisions of this section”. Section 3714b of the Political Code was enacted pursuant to this latter provision and limits the applications which may be acted upon by the board to those filed at least thirty days *37 before the date fixed for the determination of the tax rate of the political subdivision desiring to increase its expenditures.
The purpose of that provision is evident. In further provisions the section specifies the factors to be considered by the board in passing upon an application. The section provides: “The board shall meet to consider such application and shall grant a hearing thereon if requested by such tax-levying authority or governing body. In acting upon any such application the board shall give due weight to changes in population, economic conditions, and such other factors or circumstances as may influence or affect the need for increased governmental expenditures.” This language evidences the determination of the legislature that permission to increase expenditures is only to be granted where substantial reason exists, and after a full consideration of the “factors and circumstances” presented. It seems obvious that the application of the respondent was not presented or considered within either the letter or the spirit of the requirements laid down by the people of the state.
The respondent justifies its failure to file its application within the time fixed upon the ground that the language of section 3714b is merely directory. Such a construction would violate the plain terms of the statute and thwart the purpose of the people. The legislature was commanded by the constitutional amendment to pass all laws necessary to carry its provisions into effect. Until the Political Code section was enacted there was no authorized procedure for a political subdivision to follow in applying to the State Board of Equalization for permission to increase expenditures. That section prescribed the time within which the application might be presented and acted upon. If the constitutional amendment included the provisions of section 3714b, there would be no doubt of their mandatory nature. The effect of such provisions cannot be different when enacted by the legislature pursuant to the specific constitutional mandate of the people.
Wherever tax statutes are passed for the protection of the taxpayers, and the legislation here considered certainly comes within that category, their provisions are mandatory. To consider such provisions as directory would make them entirely ineffective. One of the leading cases on this point in the United States is French v. Edwards, 13 Wall. (U. S.) *38 506 [ 20 L. Ed. 702 ], This case involved the validity of a California tax deed, and Justice Field laid down the general rule as follows: “There are undoubtedly many statutory requisitions intended for the guidance of officers in the conduct of business devolved upon them which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such eases is limited by the manner and conditions prescribed for its exercise.” Reference may also be made to Torrey v. Inhabitants of Millbury, 38 Mass. (21 Pick.) 64 ; Lancaster etc. Co. v. City of New York, 214 N. Y. 1 [ 108 N. E. 90 ]; State Auditor v. Jackson County, 65 Ala. 142 ; Howard v. Jensen, 117 Neb. 102 [ 219 N. W. 811 ] ; Mallery v. Griffin, 43 S. D. 71 [ 177 N. W. 818 ]; 25 R. C. L. 770.
The same general rule has been stated in a number of California cases. In Uhl v. Badaracco, 199 Cal. 270, 282 [ 248 Pac. 917 ], this court pointed out that “as tax proceedings are in invihm, laws pertaining thereto are to be strictly construed in favor of the taxpayer and against the taxing power”. More particularly in point is the case of Ryan v. Byram, 4 Cal. (2d) 596 [ 51 Pac. (2d) 872 ], which was a proceeding brought by a taxpayer upon the ground that certain portions of a tax levy were invalid. It was contended that the provisions of section 3714 of the Political Code which provides a complete statutory method for the adoption of a budget and for the levying of taxes are directory and not mandatory. It was there held “that the provisions for preparing a preliminary budget; for its printing and publication; for the giving of notice and the holding of hearings; and for the adoption of a budget before the tax rate is fixed are all for the benefit of the taxpayer, are mandatory, and *39 that, if any of these steps had been omitted, the tax levy would be invalid”.
In the present case the board of equalization in the few hours between the time the application of the respondent was filed with it and the time its order was made could only have considered the facts presented in a most perfunctory way. Obviously, it was not possible to review the necessities of the city and county for the succeeding fiscal year in the manner which the statute contemplates. If such procedure meets the requirements of the statute it serves no useful purpose. The clear intent of the new legislation is that an increase shall be allowed only after there has been a full examination of the needs of the political subdivision, as presented by its tax-levying authority, and also of the ability of the taxpayers to meet the additional charges. The requirement concerning the time when an application must be filed is a substantial element of the procedure; it is a matter of substance, not of mere form, and it cannot be ignored. It is, therefore, mandatory, not directory, and to be strictly complied with. (Francis v. Superior Court, 3 Cal. (2d) 19 [ 43 Pac. (2d) 300 ].)
The judgment should be reversed with directions to the trial court to enter judgment for the plaintiff as demanded in the complaint.
Rehearing denied. Edmonds, J., voted for a rehearing.