THE STATE OF NEVADA, ex rel. JOHN HOLLEY and WILLIAM M. HOAGLAND, Relators, v. H. BOERLIN, BEN ROSENTHAL, and HENRY F. SPENKER, as the Board of County Commissioners of Esmeralda County, State of Nevada, Respondents
State ex rel. Holley v. Boerlin
THE STATE OF NEVADA, ex rel. JOHN HOLLEY and WILLIAM M. HOAGLAND, Relators, v. H. BOERLIN, BEN ROSENTHAL, and HENRY F. SPENKER, as the Board of County Commissioners of Esmeralda County, State of Nevada, Respondents.
[No. 1800.]
THE STATE OF NEVADA, ex rel. JOHN HOLLEY and WILLIAM M. HOAGLAND, Relators, v. H. BOERLIN, BEN ROSENTHAL, and HENRY F. SPENKER, as the Board of County Commissioners of Esmeralda County, State of Nevada, Respondents.
1. Counties— Mandamus to Correct Assessment — when Improper , Remedy— County Commissioners — Discretion. Under the act of March 19, 1891, p. 189, c. 100, as amended by Stats. 1893, p. 119, c. 113 (Comp. • Laws, 1232), providing that if, after equalization of taxes, it shall appear that the levy by the commissioners of any county is in excess of the county’s requirements, the commissioners must meet and reduce th'e rate to such sum as they deem sufficient, mandamus lies to compel commissioners to consider a petition to reduce a tax lévy, but not to control exercise of their discretion in making a levy with the limitations prescribed by statute, where some tax must be levied.
2. Counties — County Commissioners — Powers. Boards of County Commissioners are inferior tribunals of special and limited Jurisdiction, and , can only exercise such powers as are specially granted, and a mode of exercising their powers prescribed by law is exclusive.
3. Counties — When Improper Remedy — Taxation—County Commissioners. Mandamus does not lie to compel county commissioners to meet and abate a special tax levy for the courthouse bond fund created by special act of February 28,1907 (Stats. 1907, p. 57, c. 30), where they have met and denied a petition to abate, though they have exceeded their powers.
4. Mandamus — When Improper Remedy — Adequate Remedy at Law. Under Comp. Laws, 3543, mandamus will not lie where there is a plain, speedy, and adequate remedy at law.
5. Mandamus — Right to Remedy — Matter To Be Shown. Mandamus will not lie unless a clear legal right to the remedy is shown.
Tadbot, C. J., dissenting.
Original proceeding. Mandamus by the State of Nevada, on the relation of John Holley and another, against H. Boerlin, et al., County Commissioners of Esmeralda County, Nevada.
Dismissed.
The facts sufficiently appear in the opinion.
G. 0. WMMemore and Bufus O. Thayer, for Relators.
William H. Bryant, amicus curia,.
Mack & Green, for Respondents:
I. Municipal corporations may invest funds until needed for municipal use. (Foot v. Salem, 14 Allen, 87; Spaulding v. Arnold, 6 N. Y. Supp. 336; State v. Bowers, 26 Oh. Cir. Ct. 326, affirmed 70 Ohio St. 423, 72 N. E. 1155; New York v. Nat. Broadway Bank, 10 N. Y. Supp. 555, affirmed 126 N. Y. 665, 27 N. E. 555.) A statute providing for a sinking fund in the absence of any express provisions to the contrary authorizes the proper investment of that fund. (JSlser v. Fort Worth, 27 S. W. 739.)
By the Court,
Sweeney, J.:
This is an original proceeding in mandamus in behalf of the relators, taxpayers of Esmeralda County, to require respondents to meet in their official capacity as the Board of County Commissioners of Esmeralda County and reduce the tax levy for said county made in March, 1908, for general county purposes, and to abate the special tax levy of forty-five cents upon each one hundred dollars of taxable property for the " Courthouse Bond Fund " created under special act of the legislature of February 28,1907 (Stats. 1907, p. 57, c. 30).
Upon the return of the alternative writ, respondents by their counsel interposed a demurrer to the petition and writ, a motion to strike certain portions of the petition, and, subject thereto, an answer to the petition and writ. The several questions raised by these pleadings, in so far' as they are required to be determined, will be considered without reference to the manner in which they are raised. It is clear that the writ should not issue requiring respondents to meet and consider a reduction of the levy fixed for county purposes at one dollar and thirty-five cents upon each one hundred dollars of valuation of property subject to taxation. Petitioners base their claim for a reduction of this levy upon the provisions of an act. of the legislature entitled "An act in relation to levying and assessing taxes for state and county purposes" approved March 19, 1891 (Stats. 1891, p. 189, c. 100), as amended in 1893. (Stats. 1893, p. 119, e. 113; Comp. Laws, 1232.) This act provides "that if, after equalization of taxes in the several counties of this state, it shall appear that the levy previously made by the board of county commissioners of any county in this state for county purposes will result in collection of a revenue, either in excess or a deficiency of the requirements of such county for the current year, then and in such event, the board of county commissioners shall have the power, and it is hereby made the duty of such board of county commissioners, to immediately meet and either reduce or raise the rate of taxation, so previously levied, to such a sum as such board in its judgment may consider sufficient to insure the collection of such an amount of revenue as will answer all the requirements of such county for such current year."
Subsequent to the equalization of the assessment roll of Esmeralda County, relators, together with other taxpayers, petitioned respondents to reduce the levy for county purposes, and to abate entirely the special levy for the courthouse bond fund. These petitions were acted upon by respondents, and denied. It was conceded by counsel for petitioners upon the hearing that if the levy made in March, 1908, was for "the next ensuing fiscal year" of 1909 (see Stats. 1908, p. 108, c. 78), it was not excessive, and also it was conceded, under their contention that the levy was for the current fiscal year of 1908, that some levy was necessary. We need not enter upon a consideration of the contention that the tax rate for county purposes must be for the current year 1908; because, where it is admitted as in this proceeding that some tax is required to be levied, the amount of such levy within the limitations prescribed by statute being a matter in the discretion of the board of county commissioners, mandamus will not issue to control such discretion. The most that this court can do in a proceeding of this character would be to require the respondent board to meet and consider the question of a reduction. This they have already done. They have exercised their discretion as to whether the levy ought to be reduced, and determined that it should not be. Their discretion in this regard cannot be interfered with by writ of mandamus. We come now to consider whether or not mandamus will lie to abate the levy of forty-five cents for the courthouse bond fund.
It is well settled that boards of county commissioners are inferior tribunals of special and limited jurisdiction, and that they can only exercise such powers as are especially granted, and that, when the law prescribes a mode which they must pursue in the exercise of these powers, it excludes all other modes of procedure. (State v. C. P. R. R. Co., 9 Nev. 79; Godchaux v. Carpenter, 19 Nev. 415; Sadler v. Eureka Co., 15 Nev. 39; State v. Washoe Co., 6 Nev. 104.) As to the wisdom, policy, and expediency of the law, these are matters for the people of the state in legislature assembled to determine. An executive office should execute the law as it is made. It is not for any board of county commissioners to substitute their judgment for that of the legislature as to what is best for the county, where a statute expressly defines what shall be done; and while in the present case, even conceding for the sake of argument that from a business standpoint the commissioners acted for the best interests of the county, yet it is clear that they violated the law both in 1907 and 1908 in imposing a larger tax than authorized by law for the courthouse building, and in not following the mode provided by law for the disposition of the bonds for that purpose. But as to their violation of the law in not carrying out the said act of the legislature referred to, as I view the case, this is not a proper proceeding to determine the matters attempted to be remedied in the case now before us.
In the light of the law of 1907, and the pleadings and evidence now before the court in this proceeding, it is clear that the board of county commissioners had the authority and jurisdiction to make some tax levy for the payment of the courthouse for the year 1908, and that the board of county commissioners were petitioned to hear and determine the alleged grievances of the relators; that they granted a hearing to the relators, and, after hearing and weighing the objections made to the forty-five-cent levy, they acted upon the matter and denied the petition. Whether the tax is totally void or whether it is an excessive tax, so long as the county commissioners have met and exercised their discretion and judgment, and refused the application of petitioners, it is immaterial so far as the present proceedings are concerned, because mandamus will not lie to review, regulate, revise, or annul the official discretion or judgment of the board of county commissioners after they have once heard, considered, and finally exercised their discretion and judg ment, no matter whether said exercised discretion and judgment is erroneous or excessive. (State v. Commissioners, 8 Nev. 309; Moral Springs v. Rives, 14 Nev. 431; Treadway v. Wright, 4 Nev. 119; Hoole v. Kinkead, 16 Nev. 217; Humboldt Co. v. Churchill Co., 6 Nev. 30; Mau v. Liddle, 15 Nev. 271; Hardin v. Guthrie, 26 Nev. 246; Young v. Lane, 43 Neb. 812, 62 N. W. 202; East St. Louis v. U. S., 110 U. S. 321, 4 Sup. Ct. 21, 28 L. Ed. 162; City of Cleveland v. U. S., 111 Fed. 341, 49 C. C. A. 383; City of Sherman v. Langham, 92 Tex. 13, 40 S. W. 140, 42 S. W. 961, 39 L. R. A. 258; Humboldt Co. v. Lander Co., 22 Nev. 71; State v. Murphy, 19 Nev. 89; 19 Am. & Eng. Ency. Law, 735.)
Mandamus will not lie where there is a plain, speedy, and adequate remedy at law. (Gleeson v. Jumbo Ex. M. Co., 30 Nev. 192; Comp. Laws, 3543; State v. Guerrero, 12 Nev. 107; Mayberry v. Bowker, 14 Nev. 336; State v. Commissioners, 22 Nev. 263.)
Nor will mandamus lie unless a clear legal right to the remedy is shown. (State v. Noyes, 25 Nev. 49; State v. Stoddard, 25 Nev. 464; State v. LaGrave, 22 Nev. 417; State v. Meder, 22 Nev. 264; 19 Am. & Eng. Ency. Law, 725; 19 Cyc. 151.)
Though this proceeding consumed six days in submitting it to the court, and able and exhaustive arguments were made by counsel on both sides, as well as by counsel amicus curice, and though this court has industriously worked since the submission of the cause in reviewing the various authorities cited and found, yet the fáct remains that neither counsel have called our • attention to, nor has the court been able to find, a single authority directly in point which holds that mandamus will lie to correct the wrong sought to be remedied by relators.
Being of the opinion that mandamus is not the proper remedy in the present case, for the foregoing reasons the proceedings herein are dismissed. It is further ordered that the respective parties herein pay their own costs.