Hardin v. Guthrie

By the Court, Massey, C. J.: The respondent instituted mandamus in the district court to compel the appellant, the assessor of Humboldt county, "to immediately determine the true cash value” of certain cattle owned by respondent, and "to assess the same at a uniform rate of valuation in comparison with like property situated in said county.” It is shown by the petition, inter alia, that on the 16th day of July, 1901, the respondent applied to the assessor to have him determine the true cash value of said cattle, and to assess the same at their true cash value, and at a uniform rate; that the assessor refused on said date to determine the true and actual cash value of said property for the purpose of taxation, or to assess the same at a uniform and equal rate of assessment; that he refuses and will continue to refuse to so fix the actual cash value of the property, or to exercise any judgment, official or otherwise, upon the value of said property. In response to the alternative writ the assessor answered denying that it was his official duty on the 16th day of July, 1901, then and there to determine the value of said property, or at other times except upon some day between the date of the levy of the taxes for the year 190.1 and the first Monday in September thereof. He further alleged by his answer that on the 18th day of July, 190.1 — two days after the respondent’s demand and the filing of the application for the writ— acting in his official capacity, and in conformity with the requirements of that certain act entitled "An act to provide for a more uniform valuation and assessment of property in *251 this state,” approved March 16, 1901 (Stats. Nev. 1901, p. 61), did fix the value of the property at $17 per head, as required by the state board of assessors at a meeting held in April, 1901, under said act, and that he believes that the valuation of $17 per head of said cattle approximates more closely the average value thereof than any other amount. Upon the issues made there was a trial, and a judgment awarding the peremptory writ against the appellant, from which judgment he has appealed. The evidence is not in the record, but the court found, in effect, that the averments of the petition are true, and that the valuation fixed was above the actual cash value of the property. As a conclusion of law the court found that the act above cited is unconstitutional. Presumably, this proceeding was instituted for the express purpose of determining the constitutionality of the act cited, but no such question is presented by the record on appeal. The first question presented — a question of law, rather than a question of fact — must reverse the judgment of the trial court. It is the settled rule of this court that mandamus will not lie except upon a showing that the petitioner has a clear legal right to that sought by the proceeding. (State v. La Grave, 22 Nev. 417, 41 Pac. 115; State v. Stoddard, 25 Nev. 452, 62 Pac. 237.) Such showing is not made either by the petition or by the findings. Valuation — one of the statutory steps of assessment — or the assessment of the respondent’s property upon demand bn the 16th day of July, 1901, was not an act especially enjoined by any law of this state as a duty resulting from appellant’s office as assessor. By Section 8 of our revenue act. (Comp. Laws, 1084), upon which the respondent bases his right, it is not required of appellant, as assessor, to value or assess any property upon application or demand at any specified time. He is required between the date of the tax levy and the first Monday in September in each year to assess all property subject to taxation in his county. No matter what reasons the appellant may have given for his refusal to act at the time of the demand, it is well settled by the decisions of this court that mandamus is never granted in anticipation of a supposed *252 omission of duty, however strong the presumption may be that the person sought to be coerced by the writ will not perform his duty in the proper time. (State v. Noyes, 25 Nev. 32; 56 Pac. 946; State v. Graeey, 11 Nev. 223; State v. Rising, 15 Nev. 166.) Counsel for respondent contends that the case of State v. Arrington, 18 Nev. 412, 4 Pac. 735, does not support this view of the law, but an examination of that ease shows a marked distinction between it and the case at bar. In that ease the board of county commissioners had acted, and acted wrongfully. In the case at bar the assessor had not acted, and was not required to act, upon the demand of respondent at the time the demand was made, or even at the time the suit was instituted; and in this proceeding it may as well be doubted, even if the act of 1901, supra, is unconstitutional — a point upon which we express no opinion — whether mandamus would lie against the assessor, even conceding that he had acted wrongfully by making an excessive valuation. Again, by the averments of the answer it is shown that the assessor, within the time prescribed by Section 8 of our revenue law', upon which respondent relies, valued the property for the purposes of taxation. It is true, the court finds that the valuation fixed is excessive, and by its judgment directs the appellant to do again what he has shown by his answer he has done — exercised his judgment. Mandamus will lie to compel judicial and quasi- judicial officers to act, but it can never be invoked to correct or review errors of judgment or decision when given. In other words, the court cannot say in mandamus that the particular judgment or conclusion is wrong; it cannot substitute its judgment for the judgment of the officer or tribunal sought to be coerced. (State v. Board of Comrs. of Fureka Co., 8 Nev. 309; Floral Springs Water Co. v. Rives, 14 Nev. 431; State v. Wright, 4 Nev. 119; Humboldt Co. v. Bander Co., 22 Nev. 71, 35 Pac. 300; State v. Murphy, 19 Nev. 89, 6 Pac. 840; Hoole v. Kinkead, 16 Nev. 217.) It is only necessary to suggest in this connection that, if the act of 1901, supra, is unconstitutional for the reasons claimed, there is a board created by law to correct any error of judgment of the assessor in fixing the valuation of prop *253 erty for the purposes of taxation, to which, board the respondent could have applied for redress, and, in case it refused to act, he might have compelled action by mandamus. It necessarily follows that, the showing made by the petition and the finding of the court being insufficient to authorize the issuance of the writ, the judgment must be reversed, and the district court instructed to dismiss the proceeding. Let judgment be entered accordingly.