State ex rel. Mason v. Board of County Commissioners

7 Nev. 392 | Nev. | 1872

Lead Opinion

By the Court,

Whitman, J.:

The Act of 1867, Stats. 1867, p. 111, providing for supplemental assessments, has been before considered. Virginia and Truckee R. R. Co. v. Ormsby County Commissioners, 5 Nev. 341; The State of Nevada ex rel. Swift v. Ormsby County Commissioners, 6 Nev. 95. From these cases it follows that the board of county commissioners was under that act empowered to modify, equalize or discharge any such assessment upon proper application of the party in interest.

Such application has been made in this case, and the assessment against the Virginia and Truekee Railroad Company discharged, *396which action plaintiff seeks to review and reverse on a writ of certiorari : contending, first, that such action could only properly be had at general or special session, and not then unless within thirty days from the assessment; that there is no showing as to the session, and that more than thirty days after assessment had elapsed before application made.

The language of the act does not limit the power of the board; but is evidently intended to enlarge it in distinction to the restrictions imposed on the commissioners sitting as a board of equalization under the general revenue law. It is said that upon application for relief, “ the board of commissioners shall hold a general or special session, to hear and fully determine the matter. Stats. 1867, 111, Sec. 1. That is, action may be taken irrespective of the particular character of session.' The record brought up shows that the board was in formal session when acting on the petition of the Virginia and Tru'ckee Railroad Company, and that is sufficient. There is no limitation imposed by the statute as to the time of application for discharge; none should be inferred.

It is next objected that the discharge of a taxis a judicial act, and as such, beyond the powers of the board of commissioners. The plaintiff would have no right to this writ unless the board had such powers, because it is only granted “ when an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board or officer.” Stats. 1869, 263, Sec. 436. But the exercise of such functions is not, as plaintiff supposes, obnoxious to the constitutional division of powers. In 1857, the Supreme Court of California said, reversing the opinion in People v. Hester, 6 Cal. 679, which held that the writ of certiorari would not lie to review the action of county supervisors: “ The error in the case of the People v. Hester, consisted in overlooking the fifth section of the ninth article of the constitution, which provides that ‘ the legislature shall have power to provide for the election of a board of supervisors in each county, and these supervisors shall-jointly and individually perform such duties as may be prescribed by law.’ This section must be regarded as limiting the third article (distributing powers). In using the word ‘ su*397pervisors’ the constitution intended to adopt it with its known meaning, and in the sense in which it was generally understood.

“ The word ‘ supervisors,’ when applied to county officers, has a legal signification. The duties of the officer are various and manifold ; sometimes judicial, and at others legislative and executive. Prom the necessity of the case, it would be impossible to reconcile them to any particular head; and therefore, in matters relating to the police and fiscal regulations of counties, they are allowed to perform such duties as may be enjoined upon them by law, without any nice examination into the character of the powers conferred. This rule will preserve the utility of these officers, while it is, at the same time, in harmony with the spirit of the constitution itself.” People v. El Dorado County, 8 Cal. 58; People v. Supervisors Marin County, 10 Cal. 344; Waugh v. Chauncy, 13 Cal. 12; Robinson v. Board of Supervisors Sacramento, 16 Cal. 208.

Section 26 of Article IV, of the constitution of Nevada, seems to have been .adopted from California, substituting the synonym “commissioner,” for “supervisor”; so it may be lawfully presumed to have been taken with the judicial interpretation attached.

It is argued that the board had exhausted its power in the matter of the railroad application, because it had once acted upon the petition to equalize the same tax. If the legal proposition, that such a tribunal, having once acted, cannot review its action, be correct, yet the facts in this case do not furnish us with the necessary premise. The application first acted on was one to equalize ; the one under review is to discharge: two entirely different propositions. While, perhaps, the power to discharge might include the right to equalize, yet -the authority to equalize would give no direct license to discharge. The ultimate object might possibly be attained, by equalizing to a minimum; yet that would, if done in good faith, be an extreme case, and an evident exception to the rule. Through excess of caution, that no exception could be taken to the absolute control of the board upon application for action in these peculiar assessments, the legislature seems to have used the words “ equalize,” “ modify,” “ discharge,” that every conceivable form of relief might be included; so, notwithstanding the board had once acted upon a petition to equalize, it yet retained the power to *398act upon a subsequent application from the same party to discharge ; that being another and entirely different matter. It -will also be seen, that this is more a question of individual right in the petitioner, than of jurisdictional power in the board: such right must, by the received rules, be liberally construed; and cannot, therefore, lie limited, as would be the case were the position of counsel'sustained.

The objection that the evidence is in conflict with the order, cannot be considered. As the record shows affirmatively that the commissioners acted within their jurisdiction, how they acted is not the subject of review by this court. Fall v. The County Commissioners of Humboldt Co., 6 Nev. 100.

The action of the board is affirmed.





Dissenting Opinion

By Garber, J.,

dissenting:

I think the commissioners exhausted the jurisdiction conferred upon them by the statute, when they considered and denied the application to equalize. The grant of power to the commissioners must be strictly construed. 7 Ohio Stats. 115. And so construed, it seems to me that the legislature contemplated one application only by the person aggrieved. Upon such application, the commissioners are given the power, either to modify or wholly to discharge the assessment. By their refusal, on the first application, to modify it, they virtually affirmed its validity — they adjudged that the whole amount was properly assessed. And such their adjudication was, by the very terms of the statute, a final determination of the' matter. Practically, too, this construction of the statute seems fair and just. It gives to the party aggrieved ample opportunity to show any cause he may have, why the assessment should be either totally set aside, if illegal, or reduced in amount, if excessive ; and only denies to him the right to litigate his claim by piecemeal.