Rogers v. Hayes

• Citation: 32 P. 259,3 Idaho 597
• Parties: ROGERS v. HAYS ET AL., COUNTY COMMISSIONERS OF BINGHAM COUNTY
• Decision Date: 06 February 1893
• Court: United States State Supreme Court of Idaho

32 P. 259

3 Idaho 597

ROGERS v. HAYS ET AL., COUNTY COMMISSIONERS OF BINGHAM COUNTY

Supreme Court of Idaho

February 6, 1893

PRACTICE-WRIT OF REVIEW.-Writ of review does not lie from the action of a board of county commissioners, the statute having provided a speedy and adequate remedy by appeal.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Judgment reversed, with costs to appellant.

Hawley & Reeves, for Appellants.

The question here is, Did the board of county commissioners of Bingham county have power to remit or cancel taxes at their January meeting in 1892? If they had such power, no matter how much to the disadvantage of the county was their exercise of such power, this action could not be maintained. If the board had jurisdiction but decided wrongly, certiorari will not lie. (People v. Burney, 29 Cal. 459; Barbar v. San Francisco, 42 Cal. 630; People v Dwinelle, 29 Cal. 635; Yennoine v. Richter, 43 Cal. 312; Reynolds v. County Court, 47 Cal. 312; Monreal v. Bush, 46 Cal. 79.) Nor will it lie merely from default of jurisdiction. (Fowler v. Lindsay, 3 Dall. 411.) The writ of certiorari when applied for by a party is not a writ of right, but is discretionary with the court. (Exparte Hitz, 111 U.S. 766, 4 S.Ct. 698; Keys v Morin Co., 42 Cal. 252; People v. Andrews, 57 N.Y. 445; Specht v. Detroit, 20 Mich. 168.) The issuance of the writ therefore must be based upon an order made in open court and incorporated in the minutes of the court, or upon a written order signed by the judge and duly filed, or by an indorsement on the writ itself to the effect that it was allowed by the court, or by the signature of the judge himself to the writ. (Mott v. Commissioners etc., 19 Wend. 640; 2 Crary's New York Practice, 257, 258; 2 Burrell's Practice, 195, 196.) Certiorari does not lie when an appeal, writ of error, or other mode of review is given. (Millikin v. Huber, 21 Cal. 166; Bennett v. Wallace, 43 Cal. 25; Faut v. Mason, 47 Cal. 7; People ex rel. Huston v. Lindsay, 1 Idaho, 394; Reilly v. Tyng, 1 Ariz. 510, 25 P. 798; Edgar v. Greer, 14 Iowa 211; Peacock v. Leonard, 8 Nev. 247; Hauser v. State, 33 Wis. 678.) The writ of certiorari should not be allowed where the purpose is to enable a party to recover back taxes by a reversal of the proceedings. (People v. Commissioners, 43 Barb. 494; People v. Reddy, 43 Barb. 539; Storm v. Odel, 2 Wend. 287.) A writ of certiorari will not be allowed where another direct remedy (e. g., by appeal) is given. (In re Mount Morris Square, 2 Hill, 14; People exrel. Cook v. Nearing, 27 N.Y. 306; Witkowski v. Skalowski, 46 Ga. 41.) A writ of certiorari will not lie where there is an appeal. (Sturgis v. Shepard, 28 Cal. 115.)

Smith & Smith, for Respondent.

No brief filed.

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This is an appeal from a judgment of the district court for Bingham county, setting aside and vacating an order made by defendants, the board of county commissioners of said Bingham county, on the fifteenth day of January, 1892, by which said board canceled and remitted taxes assessed against the Union Pacific Railway Company, for the year 1891, amounting to the sum of $ 15,566.95, and costs $ 1,557.19.

The case as presented by the record is as follows: On January 15, 1892, said board of commissioners made and entered the following order, to wit: "It is the opinion of this board of commissioners, that the delinquent taxes of the Union Pacific Railway Company, amounting to $ 15,566.95, and costs amounting to $ 1,557.19, cannot be collected; it is ordered that said taxes and costs be, and the same are hereby, canceled; the yeas and nays being taken, Hayes and Breckenridge voted yea, and Garletz voted nay." On the sixteenth day of January, 1892, plaintiff filed in the office of the clerk of the district court, for Bingham county his application for a writ of review. On said sixteenth day of January, the clerk of said court issued said writ as prayed for, directed to defendants as the said board of county commissioners of said Bingham county, which was duly served. The return shows simply the order of the board as above given, made on January 15, 1892. On January 19, 1892, the defendants filed their motion to quash the writ of review, and also filed at same time a demurrer to the writ. On the twentieth day of January, 1892, the district court made and entered the following judgment in said cause: "On this day the above cause came on to be heard upon the writ and return thereto, and the demurrer interposed by defendants to the writ of review, and upon the motion to quash said writ, and upon argument by James H. Hawley, special district attorney on behalf of the defendants, and H. W. Smith, on behalf of the plaintiffs, it was ordered that the demurrer to said writ be overruled, and that the motion to quash the writ of review is denied, and it appearing that the order of the board of commissioners made on the fifteenth day of January, 1892, remitting and canceling the amount of unpaid taxes due from the Union Pacific Railway is void. It is therefore ordered that the said order of said board, and the whole thereof, be set aside, vacated, and held for naught. It is further ordered that a copy of this order be served on the clerk of the board of county commissioners of Bingham county." From this judgment defendants appeal to this court.

Various grounds are alleged in the motion to quash the writ of review, and the demurrer to the writ. It is necessary to consider but one for the purposes of this decision. Section 4962 of the Revised Statutes of Idaho of 1887 is as follows: "A writ of review may be granted by any court except a probate court or justice 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."

The territorial supreme court of Idaho in Rupert v. Board of Commissioners, 2 Idaho 19, 2 P. 718, decided that "the board of county commissioners is not a court, has no judicial functions or power, and cannot be vested therewith." We know of no reason why that decision is not good law still in the state of Idaho. With this view of the law it must be apparent that a board of county commissioners is not one of the "tribunals, board or officer" referred to in section 4962, to which a writ of review may issue. Again, section 4962 provides that the writ of review shall issue in those cases only where "there is no appeal."

Now section 1776 of the Revised Statutes of Idaho of 1887 is as follows: "An appeal may be taken from any order, decision or action of the board (board of county commissioners), while...