Murphy v. Board of Com'rs of Lincoln County

• Decision Date: 18 December 1899
• Parties: MURPHY v. BOARD OF EQUALIZATION FOR LINCOLN COUNTY
• Court: Idaho Supreme Court

59 P. 715

6 Idaho 745

MURPHY v. BOARD OF EQUALIZATION FOR LINCOLN COUNTY

Supreme Court of Idaho

December 18, 1899

BOARD OF EQUALIZATION.-Section 1483 of the Revised Statutes as amended by act of March 13, 1899, does not contravene the provisions of the constitution.

SAME-JURISDICTION.-A board of county commissioners, acting as a board of equalization, has jurisdiction to order additions made to the list of property assessed to an individual taxpayer.

SAME-WRIT OF REVIEW.-Mere irregularity in the exercise of a rightful power by a board of equalization will not be reviewed on certiorari.

SAME-INCREASING LIST OF PROPERTY-PRESUMPTION.-Courts will not presume that orders made by a board of equalization increasing the list of property assessed to an individual tax payer was made without evidence.

CERTIORARI-MINISTERIAL ACT.-Certiorari does not lie to review a ministerial act performed by a ministerial officer acting in a ministerial capacity.

ASSESSOR-CONSTITUTIONAL LAW.-A county assessor should make such changes upon the assessment-roll of his county as the board of equalization for his county has ordered, relative to the assessment of an individual taxpayer.

(Syllabus by the court.)

APPEAL from District Court, Lincoln County.

Judgment affirmed, with costs.

N. M Ruick, for Appellant.

The provisions of the state constitution and of the statutes directly involved in a consideration of this case are Const., sec. 12, art. 7; Rev. Stats., secs. 1475, 1483, as amended by Laws 1899, p. 454, and secs. 1484, 1485--the latter as amended and re-enacted by Laws 1899, p. 261. If it was the intention of the board to limit its action to directing the assessor to so add property to the number amount or quantity previously assessed by him, it should have been made to appear. (People v. Reynolds, 28 Cal. 107, 115.) The statute, having specified what they may do, necessarily excludes every other power. The court cannot add to or take from the words of the statute. (Extract from opinion in Orr v. State Board of Equalization, 3 Idaho 190, 28 P. 416.) No presumption of jurisdiction or regularity of proceedings are indulged in favor of courts and tribunals of inferior or limited jurisdiction, and all special boards and tribunals which are created by law and clothed with judicial functions of a limited and special character; and all persons who claim any right or benefit under their judgments must show their jurisdiction affirmatively. (Hahn v. Kelly, 34 Cal. 392, 409, 94 Am. Dec. 742, and note; State v. Officer, 4 Or. 180, 183; Rhode v. Davis, 2 Ind. 53; Johnson v. Eureka Co., 12 Nev. 28; Rosenthal v. Madison P. R. Co., 10 Ind. 359; Fayette Co. v. Chitwood, 8 Ind. 504; Plummer v. Waterville, 32 Me. 566; Northcut v. Lemery, 8 Or. 322.)

Guy C. Barnum and Edward A. Walters, for Respondent.

We fail to recognize any departure from the provisions of the law taken as a whole, both by its express terms and implications. In one place (Rev. Stats., sec. 1483, as amended by Laws 1899, p. 454) it says: "It may direct the assessor to make the required entries," while section 1484 of the Revised Statutes, speaks in direct and mandatory terms and says: "The clerk must enter upon the assessment book all changes and corrections made by the board"; while section 1503 of the Revised Statutes, requires the clerk under oath to vouch for the correctness of the record of the proceedings. That the order in the case at bar was directed to the assessor is to be presumed from the fact that in every case where the board of equalization as shown by the record directed its orders to anyone, it was to the assessor. (Fowler v. Russel, 45 Kan. 425, 25 P. 871; Allison Ranch Min. Co. v. Nevada Co., 104 Cal. 161, 37 P. 875.) The jurisdiction of the board to act in the matter of increasing an assessment is complete after giving to the person assessed the notice prescribed by that section and the board may give such notice on its own motion. (Allison Ranch Min. Co. v. Nevada Co., 104 Cal. 161, 37 P. 875; Farmers' etc. Bank v. Board of Equalization, 97 Cal. 318, 32 P. 312.) The presumption in all proceedings relating to taxes is in favor of regularity. (Chamberlain v. City of St. Ignace, 92 Mich. 332, 52 N.W. 634.) Certiorari is not the proper remedy to reach errors and irregularities of inferior tribunals in determining questions of fact. Unless a statute confers the power of reviewing determinations of inferior tribunals upon questions of fact, such determinations are conclusive and cannot be reversed on certiorari. (2 Wait's Actions and Defenses, p. 134, sec. 1; Andrews v. Andrews, 14 N.J.L. 141; Starr v. Trustees of Rochester, 6 Wend. 564; State v. Senft, 2 Hill (S. C.), 367; Ex parte Nightingale, 11 Pick. (Mass.) 168; Willimson v. Carman, 1 Gill & J. (Md.) 196; Hauser v. State, 33 Wis. 678.) Mere errors and irregularities which do not affect the jurisdiction are not reached by this proceeding. (Wait's Actions and Defenses, p. 137, sec. 4; Bazior v. Lasch, 28 Wis. 270; Idaho Rev. Stats., 4960.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

On July 13, 1899, the respondents, the county commissioners of Lincoln county, sitting as a board of equalization, ordered that certain raises be made in the migratory stock assessments of divers parties, one of them being the appellant. The order, so far as it relates to appellant, is as follows: "Board called to order as a board of equalization, and ordered the following raises on migratory stock assessments, as follows: . . . . Murphy, J. D., from one hundred cattle to two hundred cattle. . . . The clerk was ordered to notify the persons raised." November 7, 1899, appellant appealed to the district court for a writ of review, which issued, and the return thereto certified up to the district court the proceedings of said board of equalization. Upon the hearing of the return to the writ the district court affirmed the said order of the board, and from the judgment of the district court in the premises this appeal is brought.

In the affidavit of appellant upon which the application for the said writ is based, the following appears: "By which order so made and entered the number of cattle returned by the assessor of said county as owned by this affiant for the purposes of taxation for the fiscal year 1899 was increased from one hundred to two hundred head; that said change so ordered by the said board of equalization was entered by the auditor of said county upon the assessment-roll of said county for the fiscal year 1899." The contention of the appellant is that the board of equalization exercised an assessorial power in making said order, and that such power is not conferred either by the constitution or statutes upon such...