7 Nev. 83 | Nev. | 1871
It appears by the petition in this proceeding, that on the ninth day of August, a. d. 1870, William Thompson, the assessor of the county of Washoe, made demand upon the Central Pacific Railroad Company for a statement of its taxable property within his county; and required the same to be furnished within fifteen days from the date of the demand. The assessor having received no statement which in his opinion conformed to the requirements of' the statute within the time designated, proceeded on the seventh day of September to assess the property of the company, upon such evidence and information as he could obtain. Two days afterwards,.however, a statement was received by him from the company, which it is admitted is in conformity with the law; but the time fixed for serving it having expired, and the assessment having been made, the assessor disregarded it.
On the third day of October, A. D. 1870, the board of equalization met, and upon application of the company, reduced the valuation placed upon its property from one million forty-four thousand dollars, to five hundred and eleven thousand; the assessor, being present before the board, protested against its action in this particular, claiming that as the company had neglected to furnish the required statement within the time designated, the board possessed no authority to equalize or reduce the assessment. Certiorari was applied for, and the cleric of the board, in obedience to the writ, certified to this court the demand made by the assessor upon the railroad company; the statement of the superintendent, dated September 9th; the written protest of the assessor against the action of the board, together with his assessment of the company’s property, to be correct copies of papers -filed in his office. He also certifies the assessment roll and the minutes of proceedings taken down at the time. In addition to this, he sends up an affidavit made by the superintendent, to the effect that on or about the eleventh day of August, a. d, 1870, he received a certain document purporting to be signed by the assessor, Thompson, which was the demand already referred to; that on the twentieth of the same month he made a statement showing the amount, character and valuation of all property of the Central Pacific Railroad Company,
Such, in cases of a common law writ, has undoubtedly been held to be the rule by numerous, if not the majority of decided cases. There are authorities, however, of no less weight, holding that not only what is strictly the record is brought up, but also such orders and proceedings in the nature of record, together with so much of the evidence as may bear upon the question of jurisdiction, may be returned to and considered by the court of review. Erom decisions holding this view, and the language of the statute of this state, which directs the party to whom the writ is directed to certify fully the record and proceedings, that the same may be reviewed by the court issuing the writ, it is claimed that all the evidence and proceedings, whether any minutes were taken of them or not by the tribunal or officer, should nevertheless be' returned and certified; and hence the certificate by the clerk, based upon affidavits presented to him after the writ was issued from this court, to the effect that a certain fact was proven before the board, is properly a part of the return, and should be considered by this court. It does not appear to be claimed by counsel in the brief on file, that the affidavit of the superintendent, with the exhibits annexed, and the affidavits of Haskell and others, are properly a part of the return. But even if it were, nothing is clearer than that they are not so. They are neither a part of the record, nor can they be said to be any part of the proceedings of the board; for it is not pretended that they were ever before it, or that it knew anything of them at the time it equalized the tax. But that the clerk’s certificate as to the fact
We are clear that this position taken by the learned counsel on behalf of the commissioners is not tenable; and although we do not think the return should be confined to what is technically the record, still in addition thereto it should only embrace such of the evidence and proceedings bearing on the question of jurisdiction as may have been reduced to Avriting at the time, or perhaps subsequently, by authority of the board. This is in harmony with the _ analogies of the law in similar proceedings, whilst the course contended for by counsel appears to be in direct opposition to them. It would certainly be a novel proceeding to set aside or support the judgment of a tribunal exercising judicial functions upon testimony sought after upon the streets as to what action it may have taken or fact may have been proven before it. The laAV is scrupulous in' guarding against any misrepresentation of the proceedings of inferior tribunals to the appellate courts revieAving their decisions; therefore, to guard against it, as a general rule, it accepts no less authoritative evidence of Avhat proceedings were had than the certificate of the judge or tribunal itself Avhose order is to be revieAA’ed. Thus, by Avrit of error, the appellate tribunal was strictly confined to the record of the loAver court, and upon it the judgment below could neither be sustained or attacked by facts or matter not so appearing of record. In this Avay the regularity of the proceedings below were tried upon the case as made out by the tribunal Avhose action is complained of — for its records are made up by itself or under its supervision, through the medium of its clerk. Again, nothing less than the signature of the presiding judge is deemed sufficient to authenticate a bill of exceptions taken to revierv his rulings. So, also, as to statements on appeal — when allowed by statute, they are almost uniformly required to be approved by the court or judge whose rulings are to be reviewed; or, what is deemed equivalent, must be agreed to as being correct by the attorneys. Indeed, Ave know of no case where the judgment or proceedings of courts can be set aside by an appellate tribunal upon no better or more authoritative shoAAÚng of the action at the trial than the testimony of a bystander.
A practice, therefore, so utterly out of harmony with all similar proceedings should not be upheld in cases of certiorari, unless clearly sanctioned by the uniform practice of the courts, or the clear language of statute. The decisions relied on do not sustain it. Those cited, as we understand them, do not uphold or even suggest such practice. Generally they only announce the rule, that the court
The question here involved was .not made nor suggested in any of the cases mentioned. There is certainly no doubt, if the law requires an officer or court to reduce the evidence taken before it to writing, and it is done, which was the fact in all the English cases referred to, it might properly be embodied in the return to the writ. And the other cases only hold that the court of review will look into the evidence for certain purposes. So we have frequently held. 5 Nev. 317. But when it is said the appellate court will review the evidence, it is only to be understood as referring to such evidence as may properly be returned or certified. There was no question in any of the eases as to whether evidence not reduced to writing, or of which no minute whatever was kept,. would be reviewed upon a mere certificate that it was given. In King v. Barker, 1 East, 186, which is claimed to be directly in point, it was held that a magistrate was authorized to make return to a writ of certiorari of a conviction in a more formal shape than that in which it was first drawn up, and of which a>' copy had been delivered to the party convicted by the magistrate’s clerk; the conviction returned being fully warranted by the minutes taken at the time. “'It is a matter of constant experience,” says Lord Kenyon, “ for magistrates to take minutes of their proceedings
In the case of the New Jersey Railroad and Transportation Company v. Suydam, 2 Harrison’s R. 25, affidavits were received by the Supreme Court, and upon them the award of the commissioners was set aside, although evidence in support of it was refused upon the ground that it should have been sustained by the record itself. This might very well be done ; for if the proceedings of the commissioners were not what might be strictly called record, evidence might be received to establish a want of jurisdiction — that being for the purpose of showing that it was not record, as it could not be so considered under some authorities, if the court making it acted without jurisdiction. In such case, if the court of review has the authority to hear evidence dehors the record at all, it might receive it for that purpose. But a different rule seems to govern
It may then be said with confidence, that these cases do not sanction the practice of allOAA'ing the clerk of a tribunal to certify from memory, Ayithout any minutes or record to guide him, as to Avhat the proceedings of a tribunal may have been, and so make a record for the court of revieAv; much less to make such a certificate upon information obtained from other persons; and if they do not support such practice, they have no pertinency to this case.
Nor does the language of the statute Avarrant it; but on the contrary, the only inference deducible from it is, that it was not
However, so far as this case is concerned, it might very safely be admitted that the employment of the -word proceedings, in this statute, was intended to authorize the court or officer to whom the writ is issued to certify facts not committed to writing, but held in remembrance until required to .be returned, for there is no such certificate here. Certainly, if a certificate of such fact could be received at all, it must be made upon the knowledge of the person making it, otherwise it would not be his certificate in its full intent and meaning. A person who simply certifies to a fact, and in the same certificate states that it is done upon information derived from another, really only certifies to the information or knowledge of another. He does not certify to the fact of his own knowledge. In this case, that there might be no mistake, the clerk makes the statement that the certificate is made upon affidavits presented to him for the purpose of enabling him to make it. This cannot be a compliance with the statute, which requires the tribunal to whom the writ is issued, or its clerk, to certify the record and proceedings.
But it is argued, if this certificate is rejected, the demand of the assessor and the statement of the railroad company should also be disregarded, because not shown to have been used by the board, or to have been on file at the time of equalization; and as a consequence, the board would be shown to have jurisdiction to equalize, as there would be no proof of a refusal to comply -with any demand of the assessor. However, it seems to us the clerk’s certificate that “ the demand, statement of A. N. Towne, statement of the assessor, and the protest of Thompson, are true and correct copies of original papers among the files of tax papers of Washoe County for the year 1870, now on file in my office,” serves to show that they were on file at least. It is true, he afterwards certifies that he, was not present during the entire sitting of the board, and therefore does not know what papers were used. Nevertheless, this certificate warrants the conclusion that the papers mentioned were filed, as they are certified to be copies of original papers among the files of the office. It is not as definite in this respect as it should
By the papers thus returned, then, it appears a demand was made, and that it was not complied with by the railroad company; the case is thus brought directly within the statute, that no equalization shall be made .when no statement is furnished, and also within the case of The State v. The County Commissioners of Washoe County, 5 Nev. 317.
Again, it is argued that the failure to furnish a statement within the time designated by the law does not deprive the board of jurisdiction, because it is claimed the statute only imposes the penalty where the person applying therefor has neglected to make a statement without legal excuse. This language of the statute is said to confer a discretion upon the board to determine whether there is a legal excuse or not; and, if it determine there is, although it may err in judgment, it is not ousted of jurisdiction. Counsel, we think, has entirely misapprehended the purport of the section of statute referred to. It reads thus: “If any corporation, company or person owning such railroad fail, neglect or refuse, after being notified, to furnish a statement for assessment and taxation, as provided in this act, the county assessor may proceed to make the assessment in the same manner as in other cases, as provided in the act to which this act is supplemental ; and any person upon whom a demand is made for a statement, as in this act provided, failing, neglecting or refusing to furnish the statement as required, without legal excuse, shall be subject to the same punishment as in other cases of such failure, neglect or refusal, as provided in the act aforesaid.” The punishment inflicted in cases of the neglect or refusal mentioned is imposed by Section 6 of the original Act of 1866 ; whilst the power of the board to equalize taxes is regulated by Section 15. The first imposes a punishment on the individual — the other simply prescribes the jurisdiction of the board of equalization, depriving it of the authority to equalize, when the person applying for that purpose has failed to comply with the demand for a statement. Nothing is clearer than that the legal excuse mentioned in the Act of 1869 is only to
There being no discretion in the board in regard to this matter, and no showing of jurisdiction, the action of the board was unauthorized, and must therefore be annulled, and judgment entered accordingly.