State v. Boerlin

• Decision Date: 05 December 1908
• Docket Number: 1,800.
• Citation: 98 P. 402,30 Nev. 473
• Parties: STATE ex rel. HOLLEY et al. v. BOERLIN et al.
• Court: Nevada Supreme Court

98 P. 402

30 Nev. 473

STATE ex rel. HOLLEY et al. v. BOERLIN et al.

No. 1,800.

Supreme Court of Nevada

December 5, 1908

Mandamus proceedings by the State of Nevada, on the relation of John Holley and another, against H. Boerlin and others, county commissioners. Dismissed.

Talbot C.J., dissenting.

C. O Whittemore and Rufus C. Thayer, for relators.

Mack & Green, for respondents.

Wm. H Bryant, amicus curiae.

SWEENEY J.

This is an original proceeding in mandamus in behalf of the relators, taxpayers of said Esmeralda county, to require respondents to meet in their official capacity as the board of county commissioners of Esmeralda county and reduce the tax levy for said county made in March, 1908, for general county purposes, and to abate the special tax levy of 45 cents upon each $100 of taxable property for the "Courthouse Bond Fund," created under special act of the Legislature of February 28, 1907 (St. 1907, p. 57, c. 30). Upon the return of the alternative writ, respondents by their counsel interposed a demurrer to the petition and writ, a motion to strike certain portions of the petition, and, subject thereto, an answer to the petition and writ. The several questions raised by these pleadings, in so far as they are required to be determined, will be considered without reference to the manner in which they are raised. It is clear that the writ should not issue requiring respondents to meet and consider a reduction of the levy fixed for county purposes at $1.35 upon each $100 of valuation of property subject to taxation. Petitioners base their claim for a reduction of this levy upon the provisions of an act of the Legislature, entitled "An act in relation to levying and assessing taxes for state and county purposes," approved March 19, 1891 (St. 1891, p. 189, c. 100), as amended in 1893. St. 1893, p. 119, c. 113; Comp. Laws, § 1232. This act provides "that if, after equalization of taxes in the several counties of this state, it shall appear that the levy previously made by the board of county commissioners of any county in this state for county purposes will result in collection of a revenue, either in excess or a deficiency of the requirements of such county for the current year, then and in such event, the board of county commissioners shall have the power, and it is hereby made the duty of such board of county commissioners, to immediately meet and either reduce or raise the rate of taxation, so previously levied, to such a sum as such board in its judgment may consider sufficient to insure the collection of such an amount of revenue as will answer all the requirements of such county for such current year." Subsequent to the equalization of the assessment roll of Esmeralda county, relators, together with other taxpayers, petitioned respondents to reduce the levy for county purposes, and to abate entirely the special levy for the courthouse bond fund. These petitions were acted upon by respondents, and denied. It was conceded by counsel for petitioners upon the hearing that if the levy made in March, 1908, was for "the next ensuing fiscal year" of 1909 (see St. 1903, p. 108, c. 78), it was not excessive, and also it was conceded, under their contention that the levy was for the current fiscal year of 1908, that some levy was necessary. We need not enter upon a consideration of the contention that the tax rate for county purposes must be for the current year 1908; for, where it is admitted as in this proceeding that some tax is required to be levied, the amount of such levy within the limitations prescribed by statute being a matter in the discretion of the board of county commissioners, mandamus will not issue to control such discretion. The most that this court can do in a proceeding of this character would be to require the respondent board to meet and consider the question of a reduction. This they have already done. They have exercised their discretion as to whether the levy ought to be reduced, and determined that it should not be. Their discretion in this regard cannot be interfered with by writ of mandamus. We come now to consider whether or not mandamus will lie to abate the levy of 45 cents for the courthouse bond fund.

It is well settled that boards of county commissioners are inferior tribunals of special and limited jurisdiction, and that they can only exercise such powers as are especially granted, and that, when the law prescribes a mode which they must pursue in the exercise of these powers, it excludes all other modes of procedure. State v. C. P. R. R. Co., 9 Nev. 79; Godchaux v. Carpenter, 19 Nev. 415, 14 P. 140; Sadler v. Eureka Co., 15 Nev. 39; State v. Washoe Co., 6 Nev. 104. As to the wisdom, policy, and expediency of the law, these are matters for the people of the state in Legislature assembled to determine. An executive office should execute the law as it is made. It is not for any board of county commissioners to substitute their judgment for that of the Legislature as to what is best for the county, where a statute expressly defines what shall be done; and while in the present case, even conceding for the sake of argument that from a business standpoint the commissioners acted for the best interests of the county, yet it is clear that they violated the law both in 1907 and 1908 in imposing a larger tax than authorized by law for the courthouse building, and in not following the mode provided by law for the disposition of the bonds for that purpose. But as to their violation of the law in not carrying out the said act of the Legislature referred to, as I view the case, this is not a proper proceeding to determine the matters attempted to be remedied in the case now before us.

In the light of the law of 1907, and the pleadings and evidence now before the court in this proceeding, it is clear that the board of county commissioners had the authority and jurisdiction to make some tax levy for the payment of the courthouse for the year 1908, and that the board of county commissioners were petitioned to hear and determine the alleged grievances of the relators; that they did grant a hearing to the relators, and, after hearing and weighing the objections made to the 45-cent levy, they acted upon the matter and denied the petition. Whether the tax is totally void or whether it is an excessive tax, so long as the county commissioners have met and exercised their discretion and judgment, and refused the application of petitioners, it is immaterial so far as the present proceeding is concerned, because mandamus will not lie to review, regulate, revise, or annul the official discretion or judgment of the board of county commissioners after they have once heard, considered, and finally exercised their discretion and judgment, no matter whether said exercised discretion and judgment is erroneous or excessive. State v. Commissioners, etc., 8 Nev. 309; Floral Springs v. Rives, 14 Nev. 431; Treadway v. Wright, 4 Nev. 119; Hoole v. Kinkead, 16 Nev. 217; Humboldt Co. v. Churchill Co., 6 Nev. 30; Mau v. Liddle, 15 Nev. 271; Hardin v. Guthrie, 26 Nev. 246, 66 P. 744; Young v. Lane, 43 Neb. 812, 62 N.W. 202; East St. Louis v. U. S., 110 U.S. 321, 4 S.Ct. 21, 28 L.Ed. 162; City of Cleveland v. U. S., 111 F. 341, 49 C. C. A. 383; City of Sherman v. Langham, 92 Tex. 13, 40 S.W. 140, 42 S.W. 961, 39 L. R. A. 258; Humboldt Co. v. Lander Co., 22 Nev. 71, 35 P. 300; State v. Murphy, 19 Nev. 89, 6 P. 840; 19 A. & E. Encyc. L. 735. Mandamus will not lie where there is a plain, speedy, and adequate remedy at law. Gleeson v. Jumbo Ex. M. Co., 30 Nev. 192, 94 P. 74; section 3543, Comp. Laws; State v. Guerrero, 12 Nev. 107; Mayberry v. Browker, 14 Nev. 336; State v. Com'rs, 22 Nev. 263, 38 P. 668. Nor will mandamus lie unless a clear legal right to the remedy is shown. State v. Noyes, 25 Nev. 49, 56 P. 946; State v. Stoddard, 25 Nev. 464, 62 P. 237, 51 L. R. A. 229; State v. Le Grave, 22 Nev. 417, 41 P. 115; State v. Meder, 22 Nev. 264, 38 P. 668; 19 A. & E. Encyc. L. 725; 19 Cyc. 151. Though this proceeding consumed six days in submitting it to the court, and able and exhaustive arguments were made by counsel on both sides, as well as by counsel amicus curiae, and though this court has industriously worked since the submission of the cause in reviewing the various authorities cited and found, yet the fact remains that neither counsel have called our attention to, nor has the court been able to find, a single authority directly in point which holds that mandamus will lie to correct the wrong sought to be remedied by relators.

Being of the opinion that mandamus is not the proper remedy in the present case, for the foregoing reasons the proceedings herein are dismissed. It is further ordered that the respective parties herein pay their own costs.

NORCROSS J. (concurring).

I concur in the judgment dismissing the proceedings. There is no question in my opinion that the writ will not lie to compel respondents to again meet and consider a reduction of the levy for general county purposes; they having already acted and the matter being within their discretion. With regard to the special levy of 45 cents for the courthouse bond fund, which relators claim to be entirely void, I am inclined to the opinion that if the court could agree with relators' contention in this respect, and the proceedings had been instituted seasonably, that the writ would lie. If as contended by petitioner's counsel, in which contention I am in accord, no necessity existed in March, 1908, for any levy for this fund, the levy could have been attacked at any time thereafter. At the time this action was instituted the assessment roll had been delivered to the county auditor and by him to the county treasurer. Taxes were due and payable before this case...