McConnell v. State Board of Equalization

Decision Date30 December 1905
Citation83 P. 494,11 Idaho 652
PartiesMCCONNELL v. STATE BOARD OF EQUALIZATION
CourtIdaho Supreme Court

STATE BOARD OF EQUALIZATION-ASSESSMENT OF RAILWAY, TELEPHONE AND TELEGRAPH LINES-CONSTITUTIONAL LAW-WRIT OF ERROR-WHAT MAY BE REVIEWED UNDER-LITIGATION OF-PRIVATE RIGHTS.

1. Under the provisions of the revenue law, approved March 22 1901 (Sess. Laws 1901, p. 257), the state board of equalization is authorized to fix for taxation the valuation of railroad, telephone and telegraph lines, and property belonging thereto.

2. Under the provisions of sections 4962 and 4968 of the Revised Statutes, this court is not authorized, by certiorari, to pass upon the constitutionality of an act upon the application or petition of a private person to protect his private property rights.

3. Under the provisions of said section 4968, the review upon said writ cannot extend further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority given such tribunal, board or officer by the law. If such were done, it would amount primarily to an inquiry as to the authority of the legislature to enact such law and not the authority of a tribunal, board or officer to act under a statute which has all the appearance and semblance of a valid law.

4. This court cannot inquire into the constitutionality of the revenue law of this state upon a writ of review on the application of a private citizen in a matter involving his private rights.

5. Under a writ of review, errors and mistakes of judgment of a board as to the value of property that it is authorized to assess cannot be reviewed; neither can such writ 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 fact of jurisdiction.

6. The provisions of such writ is limited to a review of questions of law involved in the matter, and the court must confine its inquiry 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 office. On such writ this court cannot review the question of fact as to whether said board in its judgment or opinion has valued the railway telephone and telegraph lines at less than their cash value.

(Syllabus by the court.)

ORIGINAL application for a writ of review. Writ denied.

Writ denied.

Ralph P. Quarles, for Plaintiff.

The constitutionality of a statute can be inquired into on certiorari. (Weed v. Mayor etc., 172 Mass. 28, 51 N.E. 204, 42 L. R. A. 642; Meller v. Board etc., 4 Idaho 44, 35 P. 712; Dunn v. Sharp, 4 Idaho 98, 35 P. 842; Board of Aldermen v. Darrow, 13 Colo. 460 16 Am. St. Rep. 215, and note, 22 P. 784; Wilson v. City of Seattle, 2 Wash. 543, 27 P. 474; Levy v. Superior Court, 66 Cal. 292, 5 P. 353; Levan v. Richards, 4 Idaho 667, 43 P. 574; Ah Fong v. McCalla, 7 Idaho 20, 59 P. 930.) In proceedings analogous to writ of review the court has considered the constitutionality of statutes. (Holmberg v. Jones, 7 Idaho 752, 65 P. 563; In re Brickey, 8 Idaho 597, 101 Am. St. Rep. 215, 70 P. 609; In re Inman, 8 Idaho 398, 69 P. 120; Good v. Steele, 8 Idaho 538, 69 P. 319; McNamee v. Steele, 8 Idaho 539, 69 P. 219.) The plaintiff contends that the legislature cannot, directly or indirectly, through the defendant board or other agency, take any necessary step in the process of imposing county or municipal taxes. It is prohibited from doing so. What does the term "impose a tax" mean. In American and English Encyclopedia of Law, volume 27, second edition, page 658, it is said in the text: "Three things are essential to a text: First, the ascertainment of a sum certain, or that can be rendered certain, to be imposed on the collective taxpayers; second, a legal imposition of that sum on the collective body of taxpayers; third, an apportionment of the amount among the individual taxpayers, so as to ascertain the part or share due from each." In the case of Quivey v. Lawrence, 1 Idaho 313, it is held that the assessment of property for taxation is indispensable to the imposition of a tax. And at page 316 the court says: "In Blackwell on Tax Titles, page 106, the rule as to the assessment of property is thus stated: 'A listing and valuation of the lands is a prerequisite which cannot, under any circumstances, be dispensed with. It is the basis upon which all the subsequent proceedings rest.'" The word "impose" is thus defined: "3. To lay on as a burden, a tax, a toll, a duty, an office, a penalty, a command, an injunction, a restriction, etc. . . . 5. To fix upon." (Encyclopedic Dictionary.)

J. J. Guheen, Attorney General, George M. Parsons, Edwin Snow and F. S. Wettach, for Defendant.

The writ of review is a statutory remedy. Conceding this, its limitation must be sought for and found in the statutes. (Adleman v. Pierce, 6 Idaho 294, 55 P. 658.) In State ex rel. Fletcher v. Osbourn, 24 Nev. 187, 51 P. 837 (quoted in the Idaho case), the court says, under a statute identically the same as ours (Nev. Gen. Stats. 1885 sec. 3458): "This court has repeatedly and uniformly held that the inquiry upon this writ would not be extended further than was necessary to determine whether the inferior tribunal, board or officer has exceeded its jurisdiction or has regularly pursued its authority." This was held in Phillips v. Welch, 12 Nev. 158. The supreme court of California, under similar statutes, ours being a literal copy (Code Civ. Proc., sec. 1068 et seq.), in Quinchard v. Board etc., 113 Cal. 664, 45 P. 856, says: "The scope of this writ has been limited by section 1068 of the Code of Civil Procedure (the same as our section 4968), and is to be issued only when an inferior tribunal, board or officer has exceeded the jurisdiction of such tribunal, board or officer, and cannot be extended further." (Central P. R. R. Co. v. Placer Co., 43 Cal. 365.) The office of the writ of review is only to bring the matter before the court when the inferior tribunal, board or officer has acted judicially. (Quinchard v. Board etc., 113 Cal. 664, 45 P. 856; People v. Supervisors of Lawrence Co., 25 Hun, 131; In re Mt. Morris Square, 2 Hill, 14; People v. Board etc., 33 Barb. 344; People v. Board etc., 43 Barb. 232.) The only question, then, for the consideration of this court in this proceeding, in the light of the decisions, is this: Was there an excess of jurisdiction, and did the board regularly pursue the authority vested in it by law? If a board usurps a power not given by the constitution or statute, then the remedy is quo warranto. (Rev. Stats., sec. 4612.) The constitutionality of an act cannot be raised by writ of review. (Hampton v. Dilley, 3 Idaho 427, 31 P. 807; Wright v. Kelly, 4 Idaho 624, 43 P. 566.) In summary remedies, as in the issue of writs of parallel nature, they cannot be made an instrument for giving a court jurisdiction of litigation on collateral matters in an irregular way. (Spelling on Extraordinary Legal Remedies, sec. 1386.) Nor can the question of the validity of an act of the legislature be raised by an application for mandamus. Nor should the writ issue in cases where the right of the relator depends on holding an act of the legislature unconstitutional. (Fraser v. Freelon, 53 Cal. 644; Orr v. State Board, 3 Idaho 190, 28 P. 416.) "If a municipal corporation appears to be acting under color of law and recognized by the state as such, such a question as to its legal existence should be raised by the state itself by quo warranto or other direct proceedings." (State v. Carr, 5 N.H. 367; People v. Maynard, 15 Mich. 463; Stuart v. School Dist., 30 Mich. 69; President v. Thompson, 20 Ill. 197; Kettering etc. v. Jacksonville, 50 Ill. 39; Geneva v. Cole, 61 Ill. 397; Kayser v. Brennan, 16 Mo. 88; State v. Weatherby, 45 Mo. 17; St. Louis v. Shields, 62 Mo. 247; 1 Dillon on Municipal Corporations, sec. 43; Burt v. Winona etc. R. R. Co., 31 Minn. 472, 18 N.W. 285, 298; Brown v. Brown, 99 Ga. 168, 25 S.E. 95; 6 Cyc. 761; People v. County Judge, 40 Cal. 479; Cooley on Constitutional Limitations, 6th ed., p. 196; Donough v. Hollister, 82 Mich. 309, 46 N.W. 782.) "Mandamus should not be issued, as a general rule, when the right of the relator depends upon the holding of an act of the legislature unconstitutional. " (14 Am. & Eng. Ency. of Law, 100.) "Or when it becomes necessary to decide on the constitutionality of a law involving the rights of third persons." (High on Extraordinary Legal Remedies, sec. 143; 4 Field's Law Brief, 440; Alderton v. Binder, 81 Mich. 133, 45 N.W. 968.) The same rule will apply to writs of review. The fixing of a valuation upon railroads, telegraph and telephone lines is not in any sense the assessing, imposing or levying of a tax. (Bridwell v. Morton, 46 Ark. 73-78; Moss v. Hindes, 28 Vt. 279; Eide v. Clarke, 57 Minn. 397, 59 N.W. 484.) Among others, the following states have their constitutional provisions similar to section 6, article 7, of our constitution, and these states also have laws providing that the state board of equalization shall place the value upon railroads, telegraph, and telephone lines, to wit: Montana (Const., sec. 4, art. 12), Nebraska (Const., sec. 7, art. 9), California (Const., sec. 12, art. 11), South Dakota (Const., sec. 10, art. 11), Illinois (Const., secs. 9, 10, art. 9), and Missouri (Const., sec. 10, art. 10). Under constitutional provisions similar to ours, the supreme court of Montana, in Lockey v. Walker, 12 Mont. 577, at page 582, 31 P. 639, passes squarely upon this proposition. See, also, State v. Aitken, 62 Neb. 435, 87 N.W. 153. Virtually to the same effect is the case of City of Louisville v. Warehouse Co., 107 Ky. 184, 53 S.W. 291. Errors and mistakes in judgment of the state board of...

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