Copper Queen Consol. Min. Co. v. The Territorial Board of Equalization of Territory of Arizona

• Decision Date: 20 January 1906
• Docket Number: Civil 927
• Citation: 9 Ariz. 383,84 P. 511
• Parties: In the Matter of the Application of the COPPER QUEEN CONSOLIDATED MINING COMPANY, a Corporation, for a Writ of Certiorari, Petitioner, v. THE TERRITORIAL BOARD OF EQUALIZATION OF THE TERRITORY OF ARIZONA, Composed of Wesley A. Hill et al., Respondent
• Court: Arizona Supreme Court

84 P. 511

9 Ariz. 383

In the Matter of the Application of the COPPER QUEEN CONSOLIDATED MINING COMPANY, a Corporation, for a Writ of Certiorari, Petitioner, v. THE TERRITORIAL BOARD OF EQUALIZATION OF THE TERRITORY OF ARIZONA, Composed of Wesley A. Hill et al., Respondent

Civil No. 927

Supreme Court of Arizona

January 20, 1906

Original Petition for Writ of Certiorari. Demurrer to the amended application for the writ, sustained.

Affirmed. Opinion, 206 U.S. 474, 51 L.Ed. 1143.

The facts are stated in the opinion.

Herring and Sorin, for Petitioner.

The territorial board of equalization in performing the acts alleged and complained of in the application exceeded its jurisdiction.

1. The territorial board of equalization is wholly the creature of the statute, and has no power or authority except that which is expressly conferred by statute. The statute having specified what they may do, necessarily excludes every other power. It is essential to the validity of its acts that they should be authorized by some express provision of the statute. Orr v. State Board of Equalization, 3 Idaho, 190, 28 P. 416; Central Pacific Ry. Co. v Evans, 111 F. 79; State v. Central Pacific Ry Co., 21 Nev. 172, 26 P. 225, 1109; City of Lowell v Commissioners of Middlesex, 3 Allen, 550; State v. Central Pacific Ry. Co., 9 Nev. 79; Lewis's Sutherland on Statutory Construction, 536, 537.

In the case of City of Lowell v. Commissioners of Middlesex, 3 Allen, 530, the supreme court of Massachusetts held that the county commissioners are not constituted a tribunal with authority to adjust equities between parties arising out of the abatement of taxes, and that inasmuch as no provision of law gave to the party whose tax was abated the right to recover interest on the sum which he receives back in consequence of such abatement, the county commissioners had no authority to allow such interest, and certiorari would lie to quash the proceeding.

2. The only powers in relation to the equalization of property which are conferred by our statute upon the territorial board of equalization are those expressly conferred by paragraphs 3879 and 3880 of Revised Statutes of Arizona of 1901.

These provisions were enacted and adopted from the Colorado statute after an interpretation thereof by the court of last resort in that state. The presumption is therefore that our legislature designed to adopt the interpretations previously given to the law in Colorado. Goldman v. Sotelo, 7 Ariz. 23, 60 P. 696, 8 Ariz. 85, 68 P. 558; Henrietta Mfg. Co. v. Gardner, 173 U.S. 123, 19 S.Ct. 327, 43 L.Ed. 637; Richmond etc. R.R. Co. v. Tobacco Co., 169 U.S. 311, 18 S.Ct. 335, 42 L.Ed. 759; Metropolitan R.R. Co. v. Moore, 121 U.S. 558, 7 S.Ct. 1334, 30 L.Ed. 1022.

The supreme court of Colorado decided the case of People v. Lothrop, 3 Colo. 428, in 1877. In that case the court, in construing a statute almost identical with our own, held that the state board of equalization has no power to increase the sum of all the valuations of the several counties of the state as fixed and determined by the assessor and boards of the several counties, and that mandamus would not lie to compel the clerk of the county to place upon the assessment-roll of the county the changes made by the state board, where the latter, in making such changes, had increased the sum of the aggregate valuations of the several counties of the state. People v. Lothrop, 3 Colo. 428. The supreme court of Colorado has affirmed this decision in a recent case. People v. Ames, 27 Colo. 126, 60 P. 346. See, also, State v. Fortune, 24 Mont. 154, 60 P. 1086; State v. Equalization Board, 18 Mont. 473, 46 P. 266.

In Poe v. Howell, (N. Mex.) 67 P. 62, a similar construction was given to the statute of New Mexico, and the authorities last above cited approved.

The sum of all the valuations of the several counties as fixed and determined by the assessor and the board of equalization of the several counties of the territory must be taken as the aggregate valuation of all the property in the territory, and it is conclusive and final as against the territorial board of equalization. The power of the latter board is limited to adjusting and equalizing. To this end it may increase the aggregate valuation of one county and decrease the aggregate valuation of another, but in so doing it has no power to increase the sum of all the valuations of the several counties of the territory. Cases cited, supra.

Our statute gives the territorial board of equalization the power to equalize, but not to reassess. To the point that the former does not include the latter, we cite the case of Hacker v. Howe, (Neb.) 101 N.W. 255, decided November, 1904, in which the court says: "Concerning the contention that the state board in respect to the action taken did not equalize but reassessed the property of the several counties, raising the aggregate valuation thereof according to the percentage applied to each county, it may be said that manifestly the board has no power to increase valuations merely for the purpose of making such increase. The limitations of law relative to tax-levies, the fixing of valuations, and the equalization thereof cannot be nullified and rendered impotent by an attempt to increase the aggregate of the grand assessment-rolls under the guise of equalization. . . . The state board does not deal with individual assessments, but with the property of the county as a whole, and if it appears to them to be assessed at a valuation relatively lower or higher than the property in all other counties, the whole is effected by the order of equalization and not the different items or classes. Individual discrepancies and inequalities the law contemplates shall be corrected and equalized by the county authorities." Hacker v. Howe, (Neb.) 101 N.W. 255, 260, 261.

E. S. Clark, Attorney-General, for Respondent.

OPINION

NAVE, J.

-- The Copper Queen Consolidated Mining Company made application that a writ of certiorari should be issued out of this court by an associate justice thereof, directed to the territorial board of equalization, requiring that board to certify certain records to this court, and to show cause why certain acts and proceedings complained of in said application should not be declared void and vacated. Upon the application, on September 22, 1905, a writ was issued by one of the associate justices, returnable before the full bench of this court on the seventeenth day of November, 1905. On November 16, 1905, petitioner filed in this court its amended application for a writ of certiorari. The board of equalization made return in compliance with the writ, but interposed a demurrer to the amended application. By consent of the parties, expressed in open court, the right of the petitioner to the writ was argued before the full bench upon this demurrer. Therefore, we may with propriety consider the questions raised by demurrer as if no writ had been issued, and determine whether upon the facts set forth in the amended application, thus conceded to be true, the petitioner is entitled to relief.

The salient facts alleged in the application are that the petitioner is the owner of real and personal property situated in Cochise County; that at a session of the territorial board of equalization on the seventeenth day of August, 1905, that board, while having under examination the various assessments and abstracts of assessment-rolls returned to it from the various counties of the territory, and under consideration the question whether the valuation of property in each county bears a fair relation or proportion to the valuation in all other counties of the territory, did, for the alleged purpose of equalizing the rate of assessment in the various counties, add to the assessed valuation of patented mines in said county of Cochise for the year 1905, fifteen hundred per cent thereof, which was an increase of $3,345,277.05; similarly, did add to the valuation of work-horses in said county nineteen per cent thereof, to the valuation of saddle-horses thirty-one per cent thereof, to the valuation of improvements on unpatented mines one thousand per cent; that the said board similarly increased the assessed valuation of some special class or classes of property in each and every county of the territory; that thereby the aggregate valuation of property in each and every county of the territory was increased over and above the aggregate valuations of property therein, as fixed by the respective assessors and boards of equalization of the said counties for the year 1905. These increases in aggregate valuations are set forth in the petition in a table showing increases ranging from $81.87 in Coconino County, to $3,370,216.60 in Cochise County, and showing that the aggregate increased valuation of property in the territory for purposes of taxation of the same, was $9,554,060.29 over and above the sums of the aggregate valuations of the several counties therein, as fixed for the year 1905 by the assessors and boards of equalization of the respective counties and returned to the territorial auditor in the abstracts of assessment-rolls of said counties. Petitioner further shows, that the increased valuation of petitioner's property resulting from the act of the territorial board of equalization is $847,951.

It is contended by the petitioner that the territorial board of equalization, in performing the acts alleged, exceeded its jurisdiction for two reasons: 1. The board of equalization has no power to increase the sum of all the valuations of the several counties of the territory, as fixed and determined by the assessors and boards of the several counties; and 2. The board has no authority to raise or diminish the valuations placed upon different...