McConnell v. State Board of Equalization

SULLIVAN, J.

— This is an application for a writ of review to the state board of equalization requiring them to certify to this court for review all of their proceedings had and done at their August, 1905, meeting, which was held “for the purpose of equalizing taxation and assessments of the property for taxation throughout the state, and in the various counties thereof.”

It is alleged in the petition that in addition to performing the duties devolving upon said board by law, in violation of the provisions of article 7 of the constitution of the state of Idaho, and especially of section 6 of said article, usurped and assumed the power to impose municipal taxes for county and school district purposes upon the various railway lines within the state and within each and all of the counties thereof, and in so doing, said state board of equalization was acting without its jurisdiction, and acting in a judicial capacity and performing judicial functions which are not vested in it by the constitution of the state.

The petitioner further states that he is advised and believes, and therefore avers, that the power to impose taxes necessarily includes and carries with it the power to fix the valuation of the property to be subjected to such taxation, and that the act of the legislature of the state of Idaho, relating to revenue and taxation, approved March 22, 1901, and sections 74 to 83, inclusive, in so far as they attempt to authorize said board of equalization to assess or fix the valuation of railways and other property, real and personal, in the different counties of the state for the purposes of municipal taxation, is unconstitutional and void. Then the petitioner proceeds to set forth some of the acts done by said board at said meeting, and also sets forth a schedule showing the assessment of the railway lines in this state for that year, and avers that he is advised and verily believes that said acts of said board are of no effect and made without authority or power and are void.

The petitioner thus attacks not only the acts of the board as being void, but also said act of the legislature as being unconstitutional, and further states “that should it be held that said act of March 22, 1901, is not void but valid and of binding force, which affidavit does not admit, but, on the contrary, denies, that then the said order and the whole thereof is void and of no effect for the reasons following, to wit: The said board wrongfully, unlawfully and without jurisdiction so to do, failed and refused to fix the full cash value of and upon the said railway lines and each and every of them as required by the provisions of the statute in such eases made and provided, but, on the contrary, placed the valuation thereof at not to exceed one-eighth of the fair cash value of the same.”

The petitioner then avers that he is informed and believes that the value of the railway lines in the aggregate is $91,-000,000, and that the defendant board fixed the same at less than one-eighth of that amount, and then proceeds to give his opinion of the value of the said railway lines and of their marketable and commercial value, and proceeds to state the valuation placed upon cows, horses and sheep by the county assessors of the various counties and other property, and avers that the value placed thereon approximated nearer the actual cash value of the same than the value placed upon the railway lines by said board of equalization. Petitioner further alleges that the defendant board in like manner assumed and usurped the power to assess telegraph and telephone lines throughout the different counties of the state without jurisdiction.

The petitioner further avers that there is no appeal from the action of the said board of equalization, and that the petitioner has no other adequate remedy, speedy or otherwise, to correct the errors alleged to have been committed by said board. Petitioner demands that a writ of review be issued to said board, requiring them to certify all their proceedings in regard to said matters set forth in the petition, that the same may be reviewed by this court, and that the order fixing the valuation of the railway lines in the state be annulled and that said assessment of the railway, telegraph and telephone lines be held to be without the jurisdiction of said board, and that should this court hold that said act of March 22, 1901, is valid, that this court then hold and adjudge said order of the defendant board void for want of jurisdiction, in that it assesses for taxation the said railway lines at one-eighth of their actual cash value.

To this petition the state board of equalization appeared and demurred: 1. On the ground that said petition does not state facts sufficient to authorize the issuance of the writ of review ; 2. That the petition is ambiguous, unintelligible and uncertain; that it is ambiguous in asking primarily for a determination of the constitutionality of the act giving said board its authority and declaring the acts void, and then alleging excess or want of jurisdiction in a board having, according to the petition, no legal existence or authority to do the acts complained of; 3. That it is inconsistent in alleging the authority of the said board and then denying it, and that it is uncertain in declaring but one of the several consistent allegations will be relied upon; 4. That it fails to set out the facts that would authorize the issuance of the writ; that the affidavit of the party making the oath to said petition is insufficient to show that he is entitled to the writ and that said petition is insufficient in form, as well as in substance.

The plaintiff presents two propositions in this case: 1. That sections 74 to 83, inclusive, of the revenue act of March 22, 1901 (Sess. Laws, 1901, pp. 257-261), in so far as the same attempt to authorize the state board of equalization to fix the valuation of railroad and telegraph lines and property belonging thereto, are unconstitutional and void; and 2. That if the said sections are constitutional and valid, then the board has exceeded its jurisdiction in assessing the property of railway and telegraph lines in this state, for the reason that said board has failed to assess the same at its full cash value, but, on the contrary, has placed a valuation thereon at not to exceed one-eighth of the fair cash value of the same.

Upon the threshold of our consideration of the first proposition, we are confronted with this question: Can the court upon a writ of certiorari sued out by a private party for the protection of his private property rights inquire into and pass upon the constitutionality of an act of the legislature 1 It has been heretofore determined by this court in Adleman v. Pierce, 6 Idaho, 294, 55 Pac. 658, that the jurisdiction of the court on writs of review is limited by the statute to the cases therein designated and cannot inquire into the action of the court, tribunal or board whose action is being reviewed in any re■spect beyond the scope prescribed by the statute.

The court, speaking through Justice Quarles, there said: ‘ ‘ The question of jurisdiction is to be determined by the terms of the statute. The authority cited to us from the common law, and from those states whose statutes are different from ours, have no application here, and are entitled to no weight in determining the question before us. The legislature, having defined the case in which the writ will lie, have excluded all other cases.

“This brings us to the question: In performing the act complained of (i. e., the letting of the said contract), was the common council of Boise City exercising a judicial function? We are compelled to answer this in the negative.. None of the acts complained of were judicial acts. The legislature, in passing the act amending the charter of Boise City, was exercising a legislative, and not a judicial, function. ’ ’ So the legislature in passing said revenue act was exercising a legislative and not a judicial function.

Section 4962 of the Revised Statutes defines the conditions on which the writ will issue, and is as follows: “ A writ of review may be granted by any court except a probate or justice’s court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.” Section 4968 provides that “The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer. ’ ’

The statute of Nevada defending the writ of certiorari and the powers and authority of the court thereunder is the same as the provisions of our statute. Sections 3458 and 3464 of the Revised Statutes of Nevada of 1885 correspond to sections 4962 and 4968 of our statute above quoted. In considering the right and power of the court to examine into the constitutionality of an act of the legislature upon a writ of certiorari, the supreme court of Nevada, in State v. Osborn, 24 Nev. 187, 51 Pac. 837, held that: “Under General Statutes of 1885, sections 3458, 3464, providing that a writ of certiorari will be granted where an inferior tribunal exercising judicial functions has exceeded its jurisdiction, and there is no appeal nor any adequate remedy, but restricting the review to a determination as to whether the inferior tribunal has regularly pursued its authority, the court has no power to inquire into the constitutionality of the act of incorporation of a town, under a writ of certiorari to review the action of its city council in ordering bonds to be issued in accordance with the provisions of said act of incorporation.” The reasons announced in that case for the conclusion reached under their statute seem to us sound and logical.

It will be observed that the statute prohibits the court upon such writs extending its inquiry further than to ascertain whether or not the inferior tribunal, board or officer has ‘ ‘ regularly pursued the authority of such tribunal, board or officer. ’ ’ If the tribunal, board or officer assuming to exercise the authority complained of can produce a statute of the state by the terms of which such authority is granted, it would seem that under the limitation prescribed by section 4968, the inquiry would at once cease. If, on the other hand, the court should extend the inquiry to the point of determining whether or not the legislature had the power to enact such a statute, the court would be placing itself in the position of not only reviewing judicial or quasi judicial action, but legislative action. In such case it would amount to an inquiry primarily as to the “authority” of the legislature to enact such a law, and not the authority of the tribunal, board or officer to act under a statute which has all the appearance and semblance of a valid law. The writ of certiorari has been frequently issued and considered by this court, but our attention has not been called to any case wherein this court has ever at the instance of a plaintiff inquired into the constitutionality of an act of the legislature on a writ of review. There are many cases to be found wherein the defendant, tribunal, board or officer has, in justification of its action which is sought to be reviewed, been permitted to raise the question as to the constitutionality of some act of the legislature, and in such cases the courts have considered the validity of the statute. In such cases, however, the constitutional question has been inquired into on account of its constituting an alleged defense to the action which is sought to be reviewed. In Wright v. Kelley, 4 Idaho, 624, 43 Pac. 565, this court held that “the eonstitutionality of an act of the legislature cannot be determined collaterally by the court in an application for a writ of mandate by a private party to enforce a private right. ’ ’ It should be observed that the court held to this doctrine with reference to the scope of inquiry it would make on application for a writ of mandate without being so limited by a specific statute. But upon writs of review the court is specifically limited by section 4968, supra, which section has no parallel in the statutes prescribing the powers and duties of the court in issuance of any of the other extraordinary writs authorized. It has been repeatedly held by this court, as well as most other courts, that the writ of review will issue on the application of a private citizen and taxpayer beneficially interested in the order or proceeding sought to be reviewed. (Dunn v. Sharp. 4 Idaho, 98, 35 Pac. 842.) Our examination of this matter convinces us that we would not be justified in inquiring into the constitutionality of said revenue act upon a writ of review sued out by a citizen and taxpayer in a matter involving his private rights. (Quinchard v. Board etc., 113 Cal. 664, 45 Pac. 856; Central Pac. R. R. Co. v. Placer Co., 43 Cal. 365.)

The second question presented, namely, that the board exceeded its jurisdiction in that it has assessed the railroad and telegraph property of the state at less than its full cash value, is a question of fact and not of law. The writ of review is not a remedy for correcting errors and mistakes of judgment, neither can it be invoked for the purpose of reviewing the facts upon which the inferior tribunal, board or officer acted, except for the purpose of ascertaining the one fact of jurisdiction. Its province is limited entirely to a review of the questions of law involved in the matter. The court should in such cases always confine its inquiries to the question as to whether or not the action complained of was beyond and in excess of the jurisdiction conferred on the tribunal, board or officer. (Sweeny v. Mayhew, 6 Idaho, 455, 56 Pac. 85; Smith v. Portland, 25 Or. 297, 35 Pac. 665.) The writ is denied.

Stockslager, C. J., and Ailshie, J., concur.