Tomlinson v. Board of Equalization

LuRTON, J. The petitioner -applied for and obtained writs of certiorari and supersedeas. Upon motion, at the following term of the Circuit Court, his petition was dismissed. Iiis complaint is that the Tax Assessor of Grainger County has placed an excessive tax upon three parcels of land owned by him. He alleges that he made complaint before the Board of Equalization that his assessment was excessive, and produced and ' sought permission to examine witnesses to support his complaint; that the Board refused to allow him to examine these witnesses, or to grant him a subpoena for others that he proposed to bring before them; and that they adopted and approved the valuation fixed by the Assessor. The petition shows the ground upon which the Board refused to hear the witnesses, in that it states that they ruled that “ a complaining tax-payer had no right, under the law in such cases, to introduce evidence as to the value of his property claimed to bo excessively assessed, or -the Board any authority to hear and consider any evidence upon the subject, unless in the judgment of the Board justice demands that it should hear evidence, and then only such as the Board might see fit to call itself in its discretion.” Petitioner then alleges that he prepared a bill of exceptions, which the Board refused to sign, and prayed an appeal to the Circuit Court, which — 4 — was refused. What relief can petitioner obtain under a writ of certiorari upon these facts? The duties and powers of the Board of Equalization are defined in Section 42 of the Assessment Act, passed March 25, 1887. It is as follows: “That said Board of Equalization shall carefully examine and compare and equalize said assessments, and shall eliminate from the lists thereof all property exempt under this Act; and they are hereby empowered to hear and adjust complaints from any party feeling aggrieved on account of excessive assessments when in their judgment, justice-demands it, and to correct any and all errors arising from clerical mistakes, or otherwise; and the corrections made, if any, shall be entered upon the assessment book, without in any way altering the assessment lists, and the action of this Board as to valuation shall be final; and all complaints in this regard are hereby required to be made and acted upon by this Board during its session, which shall be from the first Monday to the third Monday in June. If complaint made is based on excessive values, said Board shall have the right to summon before them witnesses who shall be disinterested freeholders; and the sworn testimony of three such witnesses concerning same will be sufficient evidence upon which such Board may act.” The italics are ours. It may be distinctly seen, from the plain words of the Act, that the legislative 'intention was that there should be no appeal or review, of the action of this Board upon the subject of valuations where — 5 — it has acted, upon a complaint. The law-maker has in so many words declared that its action in this regard “shall be final.” Where no right of appeal is given by the statute in express words or by necessary implication, an appeal will not lie, and it was therefore not error in the Board to refuse the appeal prayed for. Wade v. Murray, 2 Sneed, 50; W. A. Knight, ex parte, 3 Lea, 401. But it is insisted that, where no appeal lies, the writ of certiorari may be used in lieu of or as a substitute for an appeal. Aid. VI., Sec. 10, of the State Constitution provides that: “The Judges or Justices of inferior courts of law and equity shall have power, in civil cases, to issue writs of certiorari to remove any cause, or the transcript of the record thereof, from any inferior jurisdiction into such court of law on sufficient cause, supported by oath or affirmation.” What is “sufficient cause” must be defined by either statute or judicial decision. Judicial decision has established that where the law gives an appeal, and the party is deprived of it without any fault or negligence on his part, that is “sufficient cause,” if he shows in addition to it a meritorious case. History of a Lawsuit, Sec. 655 (old Ed.). But in the case before us the law gave no appeal. Hence the writ will not lie in lieu of or as a substitute for an appeal. But will it lie under any of the statutory definitions of “sufficient cause?” Code, § 3123, is as follows: “ The writ of certiorari .may be granted whenever authorized by law, and also — 6 — in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when •in the judgment of the Court there is no other plain, speedy, or adequate remedy.” By the succeeding section it is declared that the writ of -certiorari lies in the following cases: “ On suggestion of diminution; where no appeal is given; as a substitute for appeal; instead of audita querela; instead of writ of error.” This is a case which learned counsel contend comes under the provision for the writ in the section last .quoted — “where no appeal is given.” It is too plain for argument that if the writ cannot lie under this provision it will not under any of the other cases named in the statute. These two sections must be construed together. The statutory ground is, that the writ of certiorari will lie upon “ sufficient cause” shown, “where no appeal is given,” where “an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when in the judgment of the Court there is no other plain, speed}1', or adequate remedy.” Does petitioner present such a case ? Waiving for the present any consideration of the question as to whether a Board of Equalization under our Act of 1887 is a judicial tribunal, or whether, in regard to its action upon a complaint of an excessive assessment, it is a Board “ exercising judicial functions,” we will first undertake to ascer — 7 — tain whether, if we assume it to have been in the exercise of “judicial functions” in the matter complained of, it has in any way “ exceeded its jurisdiction,” or, in the language of the statute, was “ acting illegally.” The complaint made in the petition is that it refused to hear witnesses, offered by the complainant in support of his complaint as to an excessive assessment as to valuation. In this did they “exceed their jurisdiction,” or “act illegally ? ” To determine this we must not only consider the language of the Act defining their duties, but consider the general nature and scope of the powers conferred upon them. They are styled a “Board of Equalization.” They are charged primarily with the duty of “examining” and “ equalizing” the assessments. This duty they are expected most manifestly to perform, not upon testimony, but upon a “comparing” of the assessments in one district, or neighborhood, with another — one piece of property with the assessment, upon another of equal value. CLearly this is to be done upon their own knowledge of the comparative valuations; and the end to be reached is an equalization, 'whereby discriminations in favor of one or against another are to be corrected. In addition to this, they are to correct mistakes made by the Assessor, and eliminate from the list property exempt under the law from assessment. Finally, they are empowered to “hear and adjust complaints from any party feeling aggrieved on account of excessive taxation, when in their — 8 — judgment justice demands it.” How are they to “hear and adjust” such complaints? Petitioner’s contention is that they must hear witnesses produced by him; that he has a right to examine such witnesses, and cross-examine such as are produced against him. In other Avords, that the Act contemplates a regular trial according to the ordinary course of law, and a decision according to the weight of the proof. We have seen that with reference to the primary duty of the Board — that of equalizing assessments — -the Act contemplates no issue of fact or hearing of evidence, but that the equalization is to be brought about by a comparison of assessments, and the knowledge they have of the relative values of different pieces of property. Can the law contemplate any very different method of correcting an excessive assessment? The knowledge of relative values, of comparative values, which they have as citizens and freeholders, and which they obtain from an examination and comparison of the assessment lists, will, in the vast majority of cases, enable them to act justly upon the complaint. But cases may occur where these means are, in their judgment, unsatisfactory. In such case the Act declares that the “Board shall have the right to summon before them witnesses who shall be disinterested freeholders, and the sworn testimony of three such witnesses concerning same will be sufficient evidence upon which such Board may act.” The “Board shall have the right” to summon before them disinterested freeholders is — 9 — the language of the Act. Does this power conferred make it their duty to either hear witnesses brought by the party making complaint, or require them in all cases to summon witnesses upon such complaint being made; or is the hearing of witnesses a matter wholly in their discretion? ~We think the statute means no more than it plainly declares. To hold that it was their duty to permit the examination of witnesses offered by a complainant would imply a duty to the State and County to hear and examine witnesses to sustain the assessment. All this would imply a trial and a judgment upon weight of proof. The question of valuation is altogether a matter of opinion. Dpon questions of opinion the greatest diversity may be expected. The sessions of this Board terminate in two weeks, and at the end of that time they are required to return the assessment lists and their corrections to the Clerk of the County Court. In populous counties the assessments reach into the thousands. That each tax-payer should have the right to come with his witnesses, and have them heard and be heard by counsel, would result in such delay and embarrassment as to amount to a great public peril with regard to the assessment of the public revenues. No legislative body could have seriously contemplated such a tribunal to determine a mere question of an excessive valuation for purposes of assessment. Occasional instances of excessive assessments may occur, but they had better — 10 — be borne than that such a Court should be created to settle them. The tax-payer in the first instance may make his representation to the Assessor. If he over assesses him he may carry the matter to a board of disinterested freeholders acting under oath. If they, upon their own knowledge, agree with the Assessor, and upon a “ comparison ” find no case for a reduction for purpose of equalization, the chances are that the assessment is not far wrong. If he cannot induce the Board to think that it is a case where they ought, for their own enlightenment, exercise the power they have to summon witnesses of their own selection, he must submit. The Boai’d was not “exceeding its jurisdiction” or “acting illegally” in refusing to hear the witnesses offered by petitioner, and it had a right to refuse to summon witnesses of its own selection if they deemed that justice did not demand evidence from witnesses. The next contention is that petitioner has the right to have the writ of certiorari, to the end that he may have the matter heard or retried upon the merits. This is based upon the proposition that if the Board had heard witnesses, or had decided the matter without witnesses, and upon their own knowledge, or upon a comparison of the assessment complained of with other assessments, that in any event their action in adopting and approving the assessment is a judgment, which they are entitled to have reviewed upon the merits; and that, inasmuch as it is a case where no appeal lies, — 11 — for this reason the writ of certiorari lies to review and retry the' matter upon its merits. The answer to this is, that it is only where the writ of certiorari lies as a substitute for an appeal or a writ of error, or possibly instead of audita querela, that the writ will operate to give to the petitioner a new trial upon the merits. In the first place, the Act, as we have before seen, expressly declares that, the action of the Board shall be final. The law-maker did not intend that its judgment on the merits should be subject to review. In all such cases the writ will not lie to review the matter upon the merits. Such controversies must be finally settled by some means. The judgment of a disinterested Board of freeholders upon a mere matter of opinion as to valuations for taxation is as likely to be right as that of any court. Says Judge Cooley upon this question: “As a general rule, a tax cannot depend for its validity upon the ability to justify it to the satisfaction of a court or jury. Value is matter of opinion, and when the law has provided officers upon whom the duty is imposed to make valuation, it is the opinion of these officers to which the interests of the parties are referred. The '-Court cannot sit in judgment upon tlieir errors, nor substitute their opinions for the conclusions the officers of the lay have reached.” Cooley on Taxation 157, (1st Ed.). Every interest of the State alike demands that such questions shall be settled cheaply and speedily. When an act creating a special tribunal, even one — 12 — exercising judicial functions, gives power and authority to settle particular grievances such as this, and either expressly or by plain implication declares that the judgment of such special tribunal shall be final, and it confines itself within its jurisdiction, and does not “ act illegally,” the writ of certiorari will not lie to review its action upon the merits. This question has been settled in this State since the case of Wade v. Murray, 2 Sneed, 50. That case was this: Under the Act of 1854, Oh. 32, contested elections of Judges and Attorneys-general were to be heard and determined by a special tribunal, consisting of the Chancellor of the division within which the contest arose. The jurisdiction was conferred upon the Chancellor, and not upon the Chancery Court. The Act prescribed how, when, and where he should hear the contest. No provision was made for an appeal or writ of error. Judge McKinney delivered the opinion of the Court, and held, first, that no appeal or writ of error would lie from the judgment of the Chancellor determining such a contest; second, that no writ of certiorari would lie as a substitute for a writ of error, and that when the law intended the decision to be final and conclusive there could be no review of the judgment in any way whatever. The learned Judge, however, qualifies his decision, as we think properly, when he says that “ we do not mean to say, however, that the writ of cer-tiorari might not be resorted to for some purposes in a case like the present. We think it might. — 13 — In a ease involving a question as to the legal competency of the Judge, or showing such a substantial departure from the course of proceedings prescribed in the statute as would render the proceedings void, the certiorari would be the proper remedy.” 2 Sneed, 57. The learned author of the History of a Lawsuit, in commenting on the doctrine now under discussion, says that “the law, as stated in Wade v. Murray, precluding all inquiry into the correctness of the judgment upon the merits of the case, may be considered as settled.” “ This has been thought by some to operate as an abridgment of the right to a certiorari, which is secured by the Constitution. But the language of the Constitution secures the benefit of the writ ‘ on sufficient cause/ and what is sufficient cause is not defined by the Constitution. It must, therefore, be defined by the Legislature or the Courts. "When the Legislature has created an inferior jurisdiction, and has given no appeal from its decisions, it must be evident that it did not intend them to be revised upon the merits of the case. It is equally evident that it intended the jurisdiction to keep itself within the prescribed limits and to proceed in a legal manner; and it is only when it transgresses in these respects that ‘ sufficient cause’ exists for a certiorari.” Caruther’s History of a Lawsuit, Secs. 750 and 751 (old Ed.). Wade v. Murray has been followed in the case of Knight ex parte, 3 Lea, 401, opinion by Judge McFarland, Judges Turney and Freeman dissenting. — 14 — That this writ' will not lie to review the judgment of a Board of Assessors or a Board of Equalization upon the merits, where the controversy is as to the valuation, has been repeatedly settled in other States. Judge Cooley, in his elaborate work on taxation, in speaking of the office of this writ, says: “ It will not lie to review' any merely discretionary action of any tribunal, nor is it within the proper scope of the writ to review the decisions of inferior tribunals upon the merits. The Court awarding it, therefore, will not look into the evidence on which the inferior tribunal may have acted, except so far as may' be necessary to the determination of any jurisdictional question that may depend upon it.” Again he says: “ The writ does not lie to the collector of taxes, or any other mere ministerial officer, to review either .his action or any of the prior actions on which his own was based;” and “that assessments cannot be revised and set aside on this writ on the ground merely that they are excessive or unequal.” Cooley on Taxation, 531-533 (1st Ed.). See also Shelby County v. Railroad Company, 16 Lea, 412. We have been referred to Mr. Burroughs on Taxation, who seems to entertain the opinion that a writ of certiorari will lie to correct an excessive assessment, although the Assessor or Board of Equalization have not “acted illegally” or “exceeded their jurisdiction.” This is a total misconception of the “ sufficient cause ” upon which such writ is authorized either at common law or under our Constitution. It is — 15 — certainly not in accord with our cases, and is in direct conflict with the views of Judge Cooley, as quoted above. The judgment of the Circuit Court dismissing the petition is affirmed with costs.