137 P. 174 | Idaho | 1913
Lead Opinion
This is an application by the tax commission of the state for a writ of mandate to the board of county commissioners of Bannock county, sitting as a board of equalization for Bannock county, to compel said board to equalize the taxes of Franklin & Hays in the amounts fixed by an order made by said Idaho tax commission, and to compel them to comply with said order in all respects.
Upon the application of said tax commission, the alternative writ of mandate was issued and the said board made due return thereto, and the cause came on for hearing before this court upon the petition and affidavit and motion to quash interposed by the defendants.
Briefly, the facts are as follows: N. G-. Franklin and R. J. Hays -constituted a partnership doing business in Pocatello, Bannock county. The property of the partnership was assessed by the assessor-of said county for taxes for the year ■1913, as follows: Improvements situated upon Block 39, $15,000; machinery, $5,000. Thereafter ■ application was made to said board of equalization for a reduction in this valuation, with the result that the board refused to reduce the assessment as to the improvements but reduced the
“It is therefore ordered that the order of the said Board of Equalization reducing the valuation of said machinery to the sum of $3,000.00 and their refusal and neglect to reduce the valuation fixed by the Assessor upon the brewery building aforesaid, be and the same is hereby set aside and declared erroneous, and of no effect.
“It is further ordered that the said Board of Equalization consisting of Meyers Cohn, George Gittins, and W. B. Wright, be, and they are hereby directed that immediately upon receiving notice of this order, to enter upon the assessment-roll of the said Bannock County, State of Idaho, or cause to be entered thereon in accordance with the statute in such cases provided, the valuation of the aforesaid improvements upon said lots at the sum of $10,000.00 and the machinery above referred to at the sum of $1000.00 and that when such change in said assessment shall have been made as herein directed, the same shall become the equalized assessment of said property, upon which shall be computed the taxes to be paid by the said owner of said property for the year-1913.”
The board of equalization of Bannock county refused to comply with said order so made, and the Idaho tax commission now seeks in this proceeding to compel said board to comply with said order.
The constitutionality of the act of the legislature creating the Idaho tax commission and providing for its organization ■and defining its powers and duties, etc. (Sess. Laws 1913, p. 167), is raised by this proceeding, and if it be determined
It is contended by counsel for the tax commission that said act was intended to give plenary powers to said commission, as set forth in sec. 8 of the act, which section is as follows:
“The commission shall supervise the administration of all laws relating to the assessment of property, and the levy, collection, apportionment and distribution of taxes, and shall exercise power and authority to enforce all such laws, and in so doing shall oversee all boards of assessment, boards of equalization and all officers upon whom any duties devolve under the revenue laws of this state, and require all such boards and officers to perform the duties imposed upon them by such laws, and may examine all books, records and accounts of such boards and officers, and require such boards and officers to furnish the commission such records, data and information as may be had from the records in their several offices and as the commission may deem necessary.”
It will be observed from the provisions of said section that it does not confine the supervision and administrative powers of the tax commission to any one department or feature in the levy, collection, apportionment or distribution of taxes, but makes its powers in this respect general so as to cover all features of the revenue laws of the state providing for the assessment, levy, collection, apportionment and distribution of taxes. It is clear that if the provisions of said section must be so construed as to run counter to, or be in conflict with, any of the provisions of our constitution in regard to the assessment, collection, etc., of taxes, then said act must be held to be in violation of the constitution; but if the duties imposed upon said board by said act do not take away from or impinge upon the duties of the constitutional officers who are authorized to assess, equalize, collect and distribute taxes, then said act is not in conflict with the constitution and is valid.
The direct question at issue in this case is: Has the tax commission power to compel a comity board of equalization
The words “assessor” and county “board of equalization” as used in the constitution, carry with them the powers usually conferred upon officers or boards of like names. Under see. 6, art. 18, of the constitution, it is essential that the assessment of property located wholly within a county shall be made by the assessor elected by the voters of the county, and if the assessor has no discretion in placing a value upon the property assessed, he is nothing more than a listing officer, without any power to assess property at its cash or any other value according to his best judgment or legal discretion. It may be said that the duties devolving upon the assessor and county board of equalization can still be performed, but such duties are no more than émpty forms if appointive boards and officers desire to act and fix values and do so act. The fact that it is left entirely to the judgment of such appointive boards and officers as to whether or not they will act is not controlling.
Before taxes can be levied upon any property, the property must be assessed; that is, it must be listed and valued for taxation. Under our constitution this duty devolves upon
It is stated in Cooley on Taxation, 3d ed., p. 778, that a board to review assessments, having power to make changes, is in effect a board of assessors, and if by the law assessors must be elected by the people, the members of such board must be so chosen.
The constitution provides a method or system for the assessment of property with the object of arriving at a uniformity of valuation, and designates certain officers to perform certain duties involving the exercise of their legal discretion or individual judgment, certainly as to the value of property, and it is beyond the power of the legislature to pass any law that would take from the assessor his individual judgment in regard to the value of property or controlling the exercise of his judgment, in the first instance, except that the board of equalization may equalize such assessments. If an officer exercises his legal discretion in good faith and without fraud, then he is performing his duty under the law, otherwise not; and if not, then he fails to perform his duty and is liable for a failure to faithfully perform his duties.
It is stated in Cooley on Taxation, 3d ed., pp. 427-429, that where the constitution provides a scheme or framework for the mechanical administration of the revenue laws of the state, the legislature cannot substitute another method therefor. When the constitution devolves a duty upon a particular person, the legislature may not substitute any other person to perform that duty.
What has been said in regard to the assessor applies equally to the county board of equalization. As bearing upon this question, see State v. Tonella, 70 Miss. 701, 14 So. 17, 22 L. R. A. 346; People v. Raymond, 37 N. Y. 431. Those decisions are along the line that the assessment and equalization
Sec. 6 of art. 18 of the state constitution provides for the biennial election of county commissioners, and see. 10 of the same article provides that the board of county commissioners shall consist of three members, and sec. 12 of art. 7 provides that the board of county commissioners of the several counties of the state shall constitute boards of equalization in their respective counties whose duty it shall be to equalize the valuation of taxable property in their respective counties under such rules and regulations as shall be prescribed by law. All of said officers are elected by the people.
First, the assessor makes the assessment and then the county board of equalization reviews the assessments and equalizes them. The third step provided by the constitution is that the state board of equalization shall equalize the assessment of property between the different counties of the state, and also assess the property of all railroads, telegraph, telephone and ■ transmission lines of the state. The state board of equalization is provided for by sec. 12, art. 7, of the state constitution, which board shall consist of the governor, secretary of state, attorney general, state auditor and state treasurer, whose duties shall be prescribed by law. The duties of the state board of equalization, as prescribed by law, are of two kinds, and as such were clearly considered by the framers of our constitution. The duties of the state board will be referred to hereafter in this opinion.
This board of equalization is composed of elective officers. Those elective boards have been provided for the purpose of equalizing taxes and each has particular duties to be performed which are prescribed by law. The 'state has been under this system since statehood.
The case of State ex rel. Brown County v. Myers, Judge, 52 Wis. 628, 9 N. W. 777, cited by counsel for plaintiffs, advances a startling doctrine, as we understand it, suggested in certain dicta in that case. Referring to the assessment and collection of taxes, the statement is as follows: “For, this whole matter is within the control of the legislature,
The doctrine is advanced by some people that even the constitution of the United States is old and antiquated and that Congress ought not to pay much attention to it; and also that the state constitutions may be disregarded by the legislatures. We cannot concur in that doctrine. If the constitution of the state of Idaho is not satisfactory to a majority of the people, let them amend it in an orderly way and as has been provided by the constitution itself. The amendment of the Idaho constitution is not a difficult matter, but the people themselves have provided in their constitution that it can only be amended as therein provided.
The ease of State v. Daniels, 143 Wis. 649, 128 N. W. 565, is relied upon by the plaintiffs. It appears from that case that in 1905 the Wisconsin legislature passed an act providing that whenever it was made to appear to the state tax commissioners that the assessment of property in any assessment district was not made in substantial compliance with the law and that the interests of the public would be promoted by a reassessment, such commissioners should have authority to order a reassessment and name one or more persons who
In Pittsburg etc. Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114, 38 L. ed. 1031, the court states:
“Whenever a question of fact is thus submitted to the determination of a special tribunal, its decision creates something more than a mere presumption of fact, and if such determination comes into inquiry before the courts, it cannot be overthrown hy evidence going only to show that the fact was otherwise than as so found and determined.”
In People ex rel. Green v. Board of Commrs., 176 Ill. 576, 52 N. E. 334, in passing upon the power of courts in mandamus proceedings to compel boards or officers to perform certain acts, the court held that if the act sought to be enforced by mandamus is judicial and discretionary in its character, the court will only compel the defendants to act, but never compel them to decide in a particular manner. Those are the limits of powers of courts in matters of this kind and the principle applies equally to a legislature when the office is a constitutional one.
Can the people of this state by their constitution reserve to themselves the right to select officers and boards who shall judge as to whether or not the assessments have been properly made? They certainly can, and in this ease have done so. It is not within the power of the legislature to provide for appointive boards to usurp this particular function of the local board. We are not inclined to follow any decisions which hold that the legislature has power or authority to set aside the system or scheme for assessing, equalizing and tax
Reliance is placed by the plaintiffs upon the case of Ames v. People, 26 Colo. 83, 56 Pac. 656. It appears from that case that in 1891 the General Assembly of Colorado passed an act for the better assessment and collection of revenue. By that act it was made the duty of the state board of equalization to assess all the property in the state owned, used or controlled by railroad, telephone, telegraph, and sleeping and other palace car companies. The constitution of Colorado had a provision somewhat similar to that of our own, providing for the election biennially in every county of the state of an assessor. The precise question raised and decided in that case, was as to whether or not the county assessor was the only officer in the state who could assess property, and the court there held that the assessor did not have the exclusive right to assess a class of property the situs of which is not in a single county but in several counties.
The fundamental idea, it seems, of the framers of our own constitution and' of all constitutions in providing systems for the assessment and collection of revenue, is to arrive at a uniform valuation of property throughout the state, and one of the fundamental ideas, in practically all of the states, for the accomplishment of this purpose is by providing for the local assessment of property. By local assessment, however, is not meant that property shall be assessed by county officers, but rather that property shall be assessed within the county in which the property is located, and a railroad company, having its lines in many counties of the state, or in all of the counties, would hardly ask that its property be assessed in different units by the assessor of each particular county, acting independently of each other. The situs of such property is not in any one county but in the state, in a number of counties, and to follow out the spirit of the constitutional provision is to provide some means whereby such property is assessed as a whole by officers having jurisdiction of the whole.
The case of Ames v. People, supra, is authority for the position taken by the defendants in this case. Those consid
“While it may be, and we may, for our present purposes, concede it to be true that except as limited by statutes, the office of assessor provided for in the constitution, without specifying the duties of the officer filling it, implies the usual and ordinary incidents thereof, the proper construction of the section is not that the legislature is prohibited by it from conferring upon some other tribunal the power to assess a class of property which the assessors cannot, in the very nature of things, so assess as to bring about its just valuation commanded by other constitutional provisions.” Under the reasoning and authority of that case, we think it clear that the state board of equalization has power and authority under rules to be established by the legislature to assess railroad, telegraph and telephone lines and other property whose situs extends to more than one county. As we understand it, the rule established by the Colorado case is directly against the contention of plaintiffs here.
In the case of People ex rel. Crawford v. Lothrop, 3 Colo. 428, the question presented was the power of the state board of equalization to raise the aggregate value of the assessable property in the state as returned to them by different counties. In speaking of the assessor in this regard, the court said:
“The constitution provides (see. 8, art. 14) for the election in each county, each alternate year, of a county assessor. He is thus a constitutional officer, and though his duties are left unprescribed, the essential duties of an assessor must be presumed to have been contemplated. Is there not here a plain intention on the part of the people to preserve local control over the valuation of property for purposes of taxation?”
In the same opinion, referring to the power claimed to be possessed by the state board of equalization, the court said: “This claim, if well founded, makes them practically a board of assessors, with power to fix and determine values as well
In Davies v. Board of Supervisors, 89 Mich. 295, 50 N. W. 862, the ground of the decision is well stated by the court at 863 of the N. W. citation. It appears in that ease that the legislature had sought to deprive certain constitutional officers.of some of the functions of their offices and to confer those functions upon a board appointed by a power removed from the situs of the property to be assessed and not responsible to local authority, and it was held that the legislature had no more power to deprive such officers of their authority and confer that authority upon officers not of local selection than it has to abolish the offices, and that it was just as essential to local self-government that the functions of elective officers be preserved to such officers as that the right of election be protected. (See, also, People v. Highway Commrs., 15 Mich. 347.)
The cases of Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437, and Nevada Tax Commission v. Campbell (Nev.), 135 Pac. 609, do not seem to be in point in this case, for the reason that the Nevada constitution has no provisions in regard to revenue officers even remotely similar to those contained in the constitutions of the states where the questions raised in this proceeding have been determined.
In Kentucky the legislature provided for the election of a state board of equalization with power to equalize the different classes of property between the different counties. The constitution provided for local assessors and the local board of equalization but did not provide for a state board of equalization. The constitutionality of the act providing for the state board of equalization was raised in the case of Spalding v. Hill, 86 Ky. 662, 7 S. W. 27, and the act was upheld. The reasons for upholding said act are apparent. The state board was not given power to equalize except as to certain classes of property between counties. It had no authority over such assessments, and hence was not a reviewing board of the local assessing officer and boards of equalization.
Some reliance has been placed on the case of Missouri Riv. Power Co. v. Steele, 32 Mont. 433, 80 Pac. 1093. Section 3698 of the Political Code of Montana provided, in substance, that in all counties of Montana having an assessed value of eight millions of dollars or more the district judge should appoint three resident taxpayers to constitute a board of appraisers, whose duty it was to fix the value of real estate in the county for the purpose of assessment by the county assessor, which valuation so fixed by the board should constitute the true value of the real estate, and that the assessor in making up his assessment list should not assess any real estate at a greater or less valuation than that fixed by the board. It was the contention of the plaintiffs in that case, who attacked the law, that under art. 16, sec. 15, of the constitution which provided for the election of an assessor in every county, no other person than the assessor was authorized to assess property, and that the legislature had no authority to provide for the assessment by any other body or person than the assessor. The court in that case in effect held, without, however, referring to any authority, that if the duties of assessor are not fixed by the constitution, any duties in regard to the assessment of property might he devolved upon appointive or other officers as the legislature saw fit. Under that holding the law was held constitutional. That decision was based on the premise, that the Montana constitution did not prescribe the duties of the assessor, and the court said: “Of course, in so far as the constitution has defined those duties, as in the instances mentioned — of the county clerk, treasurer, the board
The earlier cases decided by the Montana supreme court are neither expressly modified nor overruled in that decision.
In the case of Life Ins. Co. v. Martien, 27 Mont. 437, 71 Pac. 470, the court held that the word “assessor” and the word “collector” as used in the constitutional provision, construed in the power company case, conferred such powers upon those officers as are conferred upon officers of similar names. (See, also, State v. Equalization Board, 18 Mont. 437, 46 Pac. 266, which follows the rule of the Colorado case in People v. Lothrop, 3 Colo. 428.)
There is no doubt but that the legislature could provide an appeal from the action of the board of equalization, but this court held in Feltham v. Board of Equalization, 10 Ida. 182, 77 Pac. 332, that the legislature had not provided an appeal from an order of the board of equalization equalizing assessments. (See Humbird Lumber Co. v. Morgan, 10 Ida. 327, 77 Pac. 433, and Fenton v. Board of Commissioners, 20 Ida. 392, 119 Pac. 41.) If an appeal were authorized, it would not necessarily follow that the court could review and modify the acts of such officers when exercising discretion in passing upon the facts before them.
We conclude that the act in question was not intended to and does not confer the power on the tax commission contended for the plaintiffs. The tax commission has not the authority or power to equalize assessments and to compel the board of equalization to adopt such equalization. If we were to construe the intent of the legislature in passing said act to mean that said tax commission could set aside assessments made by the assessor where they were legally made, and could set aside the equalization made by the board of equalization, whether county or state, it would necessitate the holding of said act unconstitutional. The legislature did not intend to create an appointive board composed of three members who might review and set at naught all actions of the assessors and boards of equalization provided by the constitution. No such plenary power was intended.
Plaintiffs have cited the Great Northern Ry. Co. v. Snohomish County, 54 Wash. 23, 102 Pac. 881, and other Washington cases for the purpose of showing the meaning of the
There is ample field for the legitimate exercise of all the powers intended to be given to said tax commission without infringing in any way upon the duties imposed by the constitution and law upon other officers that have to do with the revenue of the state. Such duties are so varied and important in connection with the revenue system that there is ample room and opportunity for it in the state without in any manner interfering with the legitimate duties of the taxing officers.
Assessors and boards of equalization and others having duties' under the revenue laws of the state ought to carefully
The, issues involved in this ease affect every board and every officer upon whom devolves any duties under our revenue laws. It affects the judgment and discretion of the assessors when assessing property; county boards when equalizing property in their several counties; the state board of equalization when equalizing property between the counties and when assessing railroads and telegraph lines; and county commissioners when fixing the levy for the purposes of taxation, and the county collectors when collecting taxes. The tax commission under provisions of said act has certain advisory and supervisory power over such officers and boards.
The legislature, however, in enacting that law did not intend to deprive any of the constitutional officers or boards of duties imposed upon them by the express or implied provisions of the constitution. The said tax commission was established for the purpose of gathering information and advising with all officers connected with the revenue of the state, and it was not intended that the commission should usurp or perform the duties of the assessors or boards of equaliza
We therefore hold under the provisions of said tax commission act that the tax commission is not entitled to a peremptory writ of mandate requiring the board of equalization of Bannock county to enter or cause to be entered upon the assessment-roll of said county the valuation of said property of Franklin & Hays in the amount fixed in said order of said commission. The alternative writ is quashed and the peremptory writ of mandate denied. No costs are awarded in this proceeding.
Concurrence Opinion
Concurring. — I concur in denying the writ. It seems to me from an examination of the whole act creating the tax commission and the simultaneous act embodying the revenue laws, that the legislature had no intention of conferring any such power on the commission as is claimed for it. The revenue law was passed and approved the same day as the tax commission act, and must be considered and construed as a simultaneous act under the same rule of construction as if a part of this act. When we so consider it, there can be no doubt but that the legislature intended that the assessor and the county board of equalization and state board of equalization should still retain the same powers and exercise the same functions that have heretofore been exercised by them. Indeed, the revenue act specifically so provides.
Again, if the act were open to the construction claimed for it, we would then be met by a well-established rule to the effect that where a statute is open to two constructions, one of which would render it unconstitutional and the other constitutional, the court should adopt the construction which will hold the act valid and give it force and effect. (Northern Pacific Ry. Co. v. Gifford, ante, p. 196, 136 Pac. 1131; In re Gale, 14 Ida. 761, 95 Pac. 679.)
