ants a statement as required by law showing the number of miles of main line and the length of side tracks it owned in said Rich county; that thereafter said defendants duly assessed the whole line of railroad and side tracks in Utah, and on the 15th day of June, 1915, as required by law, duly assessed that portion of said railroad which is within said Rich county, together with other property connected therewith, and thereafter apportioned said property for taxation to said county; that thereafter, and prior to the fourth Monday of June, 1915, as required by our statutes, the said defendants transmitted to the auditor of said Rich county a statement showing the assessment they had made of said line of railroad within said county, and that such assessment amounted to the sum of $113,019, and in said statement it was also made to appear that the defendants had apportioned the amount of said assessment to said Rich county for taxation; that thereafter, to wit, on the 29th day of July, 1915, said defendants, without authority, and in excess of their jurisdiction, rescinded their said order and action by which they had apportioned said sum of $113,019 to said Rich county, and apportioned the same to Summit county; that the acts of said defendants in rescinding said apportionment made to Rich county and in reapportioning the same to Summit county were without authority, and that the plaintiff thereby is deprived of the tax which is levied upon said railroad and other property within said county, and that it has "no plain, speedy, or adequate remedy at law." A writ of certiorari was duly issued by this court requiring said defendants to show cause why the acts and proceedings complained of should not be annulled. The defendants, at the time fixed in the writ, appeared through the Attorney General and demurred to the application. The parties were heard on the demurrer, and at the conclusion of the hearing, without passing upon the same, we required the defendants to certify up the record of the proceedings . which are complained of in said application. The defendants accordingly certified up the whole proceedings which are now before us. From the return made by the defendants it appears that the portion of the railroad in question here had during all of the past years been regarded as lying within Summit county, and not as being in Rich county; that said railroad line had always been assessed in Summit county and apportioned for taxation to said county; that for the year 1915 the tax officer of said railroad company filed the tax statement required by our statute with the defendants; that in said statement said officer returned 4.98 miles of the main line of railroad and .82 of a mile of side track for taxation in Rich county, and that the attorney for said company demanded that said mileage be assessed in Rich county; that pursuant to said return and demand the defendants assessed the number of miles aforesaid as being in, and apportioned the same for taxation to, said Rich county; that after said apportionment had been made Summit county, in which said 4.98 miles of main line and said side tracks had always been assessed and apportioned, protested against apportioning the same to said Rich county, and, after investigating the matter, said defendants became convinced that they had erred in making said apportionment to said Rich county, and on the 29th day of July, 1915, rescinded their action by which said mileage was apportioned to said Rich county, and apportioned the same for taxation to Summit county, to which county the same had always been apportioned, as before stated. [1] Counsel for plaintiff vigorously insist that, inasmuch as it is provided by Comp. Laws 1907, § 2561, as amended by chapter 63, Laws Utah 1909, the defendants "shall before the fourth Monday of June" in each year make and transmit the apportionment of railroad property to the respective counties in which it is located and is assessed, they exceeded their power or jurisdiction in changing the apportionment from Rich to Summit county as before stated. It is further contended that such is the effect of our holding in the case of Juab County v. Bailey, 44 Utah, 377, 140 Pac. 764. In that case we had before us an application by Juab county for a writ of mandate, which application was filed on the 1st day of November, 1913, and in which we were asked to require the defendants to reconvene as a state board of equalization and to require them to hear evidence upon and determine the question whether the net proceeds of a certain mine should or should not be apportioned to said Juab county which had theretofore been apportioned to Utah county in the preceding June of that year. The gist of that decision is correctly reflected in the headnote in the following words: "Held that, where a mining company incorrectly reported to the state board of equalization the gross yield of certain mines as located in U. county, when they were largely located in plaintiff county, and under such report the assessed valuation was apportioned to U. county, plaintiff, after such apportionment and the rate of taxation had been fixed in accordance therewith, and all levies had been completed, could not maintain mandamus to compel the state board of equalization to grant a hearing and reapportion the assessed value of such mining property to plaintiff county." It is quite true that there is language used in the opinion from which it might be inferred that after the defendants had made and transmitted the apportionment to the several counties, which they must do not later than the fourth Monday in June of each year, they had no further jurisdiction or power in the premises, but a careful reading of the opinion shows that what was actually decided is expressed in the portion | counties, the defendants ought not to be, and of the headnote which we have quoted above. The headnote is squarely based upon what is said in the opinion. In referring to the question to be decided, we, in the course of the opinion, said: "The question involved and to be decided now, however, is: Can this court by writ of mandate coerce said board to grant a hearing for the purposes aforesaid after the apportionments have been made, the rate of taxation fired in accordance with such apportionments, and all levies have been made pursuant thereto?" (Italics mine.) It is conclusively shown that we there had in mind the additional apportionments which are required to be made by the county commissioners as will hereinafter appear, the determining of the tax rate and the making of the levies, and not only the single apportionment which must be made on the fourth Monday of June by the defendants. Moreover, in concluding the opinion, we said: "But the right of the plaintiff to invoke the action of the state board of equalization and the authority of that board to grant the relief prayed for at this time and under the circumstances disclosed in the application are too doubtful to authorize us to coerce that board to grant the hearing requested by the plaintiff." That application was made in November, when the apportionment there in question had been made on or before the fourth Monday in June. Section 2562, which was then and is now in force, and which we had in mind then, provides: "On the second Monday in August the board of county commissioners of each county must take and cause to be entered in the proper record an order stating and declaring the property assessed by the state board of equalization apportioned to such county; and the said board of county commissioners, acting as a board of equalization for said county, shall in like manner apportion the assessed valuation of all the property and franchises of railroad, * * companies, so apportioned to said county by the state board of equalization, to the several city, town, school, * road, or other lesser taxing districts in the county." In section 2588, as amended by Laws 1909, p. 105, it is provided that the defendants, before the last Monday in July of each year, must determine the rate of state tax which is "to be levied and collected upon the assessed valuation of the property of the state," that is, the property assessed within the state. Section 2593, as amended by Laws 1915, p. 191, § 1, provides: "The board of county commissioners of each county must, between the last Monday in July and the second Monday in August in each year, fix the rate of county taxes." cannot be, coerced by mandamus to grant a hearing for the purpose of changing an apportionment regularly and timely made to one county and reapportion the same to another county. Within that statement, however, is not included the further proposition that in case the defendants had arbitrarily, capriciously, or wrongfully made an apportionment to a county which clearly was not entitled thereto, or, if they, by mistake, had apportioned property to one county which clearly and manifestly should have been apportioned to another, they could not be compelled to correct the wrong in the first instance, or could not on their own motion or at the instance of others correct the error in the second, provided the application to correct the wrong was made so that it could be heard and determined before the second Monday in August, and the error was corrected before that time, which is the date on which all the apportionments must be completed to all of the lesser taxing units of the several counties and at which time the rate of taxation must be fixed and all the levies made. In Juab County v. Bailey, supra, the county had delayed making its application until all of the apportionments had been made to the lesser taxing units of the several counties and after the rate of taxation had been determined and the levies had been made, although it could have made its application at any time after the second Monday in February and before the fourth Monday in June. Then, again, its claim was one that was, to say the least, doubtful. To our minds there is a substan. tial difference between such a case and one where it is clear that the defendants have acted arbitrarily or capriciously, or where they were mistaken in making an apportionment. [2] Where there is doubt with regard to whether a certain assessment should be apportioned to one county or to another, and the question is one of fact, and the defendants have passed upon the facts, then neither this nor any other court can control their action. If, as appears from the record before us, the precise point where the boundary line between Rich and Summit counties is located is doubtful, and the same must be established by measurements or surveys, then the question of where the boundary line should be located is one of fact, and, if the defendants have acted in good faith and in accordance with their best judgment in determining the boundary line, they have neither exceeded their jurisdiction nor power so as to make On that day all the levies must also be their acts subject to the writ of certiorari; completed. All of the foregoing provisions were therefore in our minds, although they were not all stated or referred to in the opinion in Juab County v. Bailey, supra, and the result in that case was based upon all of them. We are still of the opinion, and adhere to the ruling, that, after the apportionments nor can they be compelled to change their action by writ of mandate. The record discloses that, owing to the topography of the country and the somewhat uncertain legislative description of the boundary line between Rich and Summit counties, the precise point where it should be fixed is in doubt. Since it is the duty of the defendants to assess all of the property, and to apportion the same to the p There is, however, another reason why percounties in which the railroad lines and side emptory writ of certiorari should not issue tracks are located, it is their duty, in case in this case. As we have seen, the applicaof doubt, to determine in what county a tion for that writ was not made until the 11th particular portion of the tracks is located, day of August, 1915, or two days after the and their judgment in that regard, if hon- second Monday of August, the date on which estly and conscientiously exercised, must pre- the final apportionments were required to be vail until the boundary line is determined made by the county commissioners of the sevand fixed upon the ground by some authority eral counties of this state to the lesser taxhigher than theirs. There is-there can be- ing units. If the writ were sustained, thereno escape from that conclusion. In view of fore, we would be required to do precisely all the facts and circumstances and the evi- what we in Juab County v. Bailey, supra, dence that was before them, as disclosed held ought not to be done, namely, disturb all from their return, the defendants were justi- the apportionments and tax levies for the fied in believing that they had erred in mak-year 1915 in Summit county. In 6 Cyc. 747, ing the apportionment to Rich county, and, the law upon this subject is stated to be that in view that the error was corrected before the final apportionments had been made by the county commissioners and before the tax levies had been determined upon and made, we think the defendants had full power or jurisdiction in the premises. [3-5] If it should hereafter be determined by a higher authority that the railroad line in question is, in fact, in Rich county, and not in Summit county, such determination, under the circumstances, would not militate against the defendants' jurisdiction, but would only establish the fact that they were in error in determining the county line. Under our statutes certiorari cannot be resorted to for the purpose of correcting mere errors unless the errors occur through acts in excess of jurisdiction. So long as the county line between the two counties remains in doubt, the defendants must determine where such boundary is as best they can, which, it seems, they did. Of course, their determination for one fiscal or taxing year is not conclusive with regard to any other succeeding year. For the reasons pointed out in Juab County v. Bailey, supra, the boundary line must, as a matter of necessity, at some time become conclusive for the instant year, and that time, under our statute, arrived when all of the apportionments, including those to lesser taxing units, have been made, and the taxes have been levied for the year. An attempt to disturb the apportionments after that time might result in much mischief. Moreover, when that time has arrived there is no longer any authority given by the statute to make further changes or corrections. In this case the apportionment which is complained of was made at least ten days before the fina apportionments of the county commissioners could have been made, as appears from section 2562, supra. Counsel for plaintiff have cited a number of cases which, they insist, support their contention that the defendants exceeded their jurisdiction in reapportioning the assessment in question to Summit county. After a careful consideration of those cases, however, we do not see how anything therein decided in any way militates against or affects the foregoing conclusions. We are of the opinion, therefore, that the alternative writ heretofore issued should be quashed. the writ should not be granted "where, should the writ be granted, and the proceedings be quashed or reversed, mischievous consequences would ensue and the parties or third persons could not be placed in statu quo." It is further said (page 748): "Where great public detriment or inconvenience would or might have resulted from interfering with the proceedings of public bodies which exercise rights in which the people at large are concerned, and no substantial injury would result from its refusal, the writ has been denied, and its allowance in such cases is discretionary." The foregoing text is sustained by the great weight of authority. Crosby v. Probate Court, 3 Utah, 53, 5 Pac. 552; Hager v. Supervisors, etc., 47 Cal. 228; Keys v. Marin County, 42 Cal. 255; Rutland v. County Com'rs, 20 Pick. (37 Mass.) 79; People v. Mayor, etc., 2 Hill (N. Y.) 12; Woodworth v. Gibbs, 61 Iowa, 398, 16 N. W. 287; Meads v. Belt Copper Mine, 125 Mich. 456, 84 N. W. 615; Cavanagh v. Bayonne, 63 N. J. Law, 179, 43 Atl. 442. We do not mean to be understood as holding that, where it is clearly made to appear that an inferior tribunal has exceeded its powers or jurisdiction, the writ should be granted or withheld at the discretion of the court, but what we mean, and now hold, is that, where, as is the case here, the proceedings complained of are not clearly beyond the jurisdiction or power of the tribunal or body who made them, and where, as here, to set aside the proceedings and to annul them would cause mischievous consequences, in that it would or might seriously affect the revenues of Summit county, the writ should be withheld, and especially so since the application was not made until the time within which all the apportionments to the lesser taxing units and for the levying of all the taxes had fully elapsed. It is therefore ordered that the writ heretofore issued be, and the same is, quashed, and the application is dismissed at plaintiff's costs. MCCARTY, J., concurs. STRAUP, C. J. (concurring). It is claimed by the plaintiff that there is about 5.8 miles of railroad owned by the Union Pacific Rail TRIBUTORY NEGLIGENCE-CHILDREN. road company in Rich county and which | 2. NEGLIGENCE 141-INSTRUCTIONS-CONought to have been assessed in that county. The board assessed it as being in Summit county. We, on certiorari, are asked to annul that ruling. I think it was within the province of the board to determine whether the disputed property was within the one or the other county, and that the exercise of the board's discretion in such a matter cannot be controlled, except for an abuse of discretion. On a review of the board's proceedings as returned to us I do not find that the board acted arbitrarily, capriciously, or otherwise abused its discretion, or evaded any positive duty. To the contrary, I think it appears that its ruling was based on evidence and upon an investigation as to whether the property is within the one or the other county. True, on the statement made by the railroad company the board first assessed the property as being in Rich county, but, when its attention was called to the matter, and upon investigation and ascertaining the facts, it rescinded that action and assessed the property as being in Summit county. This, it is said, the board then was without power to do. For the reasons stated by Mr. Justice FRICK, I think the board then had such power, and that it acted within its jurisdiction. Whether it decided the question right or wrong is not the point. It is sufficient that the board acted within its power, and not in abuse of its discretion. THOMAS v. OREGON SHORT LINE R. (Supreme Court of Utah. Jan. 12, 1916.) 1. RAILROADS 401-INJURIES TO PERSONS ON TRACKS-ACTIONS-INSTRUCTIONS. years old, it was not error, in charging relative 3. NEGLIGENCE 85 CONTRIBUTORY NEGLI GENCE-CHILDREN. In determining whether a child is guilty of contributory negligence, its age, experience, and intelligence may be considered, and, if with or better knowledge of instrumentalities it has had a greater experience or familiarity and dangers involved, or has greater capacity and intelligence than an ordinary child of its age, this fact may be considered. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 121-128; Dec. Dig. 85.] 4. TRIAL 252 INJURIES TO PERSONS ON TRACK-ACTIONS-EVIDENCE. In an action for injuries to a child eight years old sustained while crossing a railroad track, evidence as to her familiarity with the trains and cars, the danger therefrom, and that railroad tracks and yards, the operation of she was an especially bright child, in connection with her appearance and manner in giving her testimony, held to raise a question as to whether she was above the standard of ordinary children of her age in understanding, knowledge, and appreciation of the circumstances, and hence an instruction that, if she was, she would be held to the degree of care that persons of her intelligence, knowledge, and experience would ordinarily exercise under such circuinstances and in view of such knowledge, was not inapplicable. [Ed. Note.-For other cases, see Trial. Cent. Dig. § 505, 596-612; Dec. Dig. 252.1 McCarty, J., dissenting. Appeal from District Court, Salt Lake County; F. C. Loofbourow, Judge. Action by Pearl Thomas, an infant, by William Thomas, guardian ad litem, against the Oregon Short Line Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed. Thos. Marioneaux and Willard Hanson, both of Salt Lake City, for appellant. Geo. H. Smith, J. V. Lyle, and Paul Williams, all of Salt Lake City, for respondent. In an action for injuries to a child injured by a railroad engine at a point where the track was used by school children and others generally as a footpath, there was evidence that the injured child was standing with some other children and some section men at the side of the track and started to run across the track directly in front of the engine. The court charged that, if the jury found from the evidence that plaintiff was not on or dangerously near the track, but was standing sufficiently clear thereof and showing no disposition to go upon the track or get dangerously near it, the operators of the train would not be required, in the exercise of reasonable and ordinary care, to anticipate that she would go upon the track, get dangerously near, or attempt to cross it, but would be entitled to proceed upon the assumption that she would remain where she was. Held, that this was not erroneous, as it did not tell the jury that the train operators, regardless of the facts and circumstances, had the right to of Salt Lake City, several hundred feet south assume that plaintiff would not go dangerously of a public school building and in an inhabitnear or attempt to cross the track, but was ed and well-settled portion of the city. A predicated on assumed facts.1 track on the east of the school building ran to a quarry north and east of the building. To the south the track led into another track [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. 401.] STRAUP, C. J. This is an action to recover damages for personal injuries alleged to have been suffered through the negligence of the defendant. The accident occurred on one of the defendant's tracks in the northern limits 1 Distinguishing Jensen v. Railroad Co., 44 Utah, 100, 138 Pac. 1185; Palmer v. Oregon S. L. R. Co., 2 Christensen v. Railway, 29 Utah, 192, 80 Pac. 34 Utah, 466, 98 Pac. 689, 16 Ann. Cas. 229; Kyne v.746; Riley v. Rapid Transit Co., 10 Utah, 428, 37 Southern Pacific Ry. Co., 41 Utah, 368, 126 Pac. 311. Pac. 681. running west of the building. The accident, were a good many tracks there. Some of them occurred a short distance north of the junction of these tracks. There were also a number of tracks west of these. It was averred, and evidence was given to support the averments, that for a long time, with the knowledge and acquiescence of the defendant, the track on which the injury occurred had been traveled and used by school children in going to and from school and by others generally as a footpath. The defendant, on the quarry track, was operating an engine backwards drawing cars from the quarry. The charged negligence is that the defendant failed to give warning of the train's approach by sounding the whistle and ringing the bell, failed to observe a lookout, and operated the engine and cars in violation of an ordinance requiring a constant ringing of bells of locomotives in motion in inhabited portions of the city, and negligently failed to have the engine under proper control and to stop it and avoid the injury. The defendant denied the charged negligence, and averred contributory negligence. were passenger tracks and some of them were freight tracks. The two nearest our house are passenger tracks; then there are the freight tracks; then the spur tracks off from the freight tracks. The men that were working were down towards the end of the spur track. I had passed the cattle guard when the accident happened. The men working there were just below the cattle guards. I knew that passenger trains passed on these two tracks, and that freight also knew that trains ran up on this track that trains passed both ways on the freight line. 1 went past the school out into the gravel pit. I have seen trains go back and forth on these and other tracks when I have been going and coming the way of a train. I knew that if I got on the from school. I knew that I had to keep out of track in front of the train that I might get hurt. I knew of the dangers of the tracks. I knew that, if I got on the track in front of the train, it could not be stopped, and that I would get hurt if I stayed there. I knew a train could not be stopped as quick as I could stop walking. I knew that before crossing a track I would have to look out to see whether they were clear or not. I would make it a business to look across a track before crossing. I knew that if I did not look and listen for trains when I started to cross a track that I might get hurt. I have waited for trains to pass before I crossed the track. One can look up the track from Mrs. NelThe plaintiff was eight years of age. She son's and see a train above the Bonneville School. had just come from a dismissal of school. While I was talking to Henry [one of the At the place of the accident four or five sec- workmen] the little Van Leuwen girl was with me. She was up by me. I was off to the side tion men were at work. There is evidence to of the track. I did not see any one move away show that the whistle on the engine was from the track while I was talking to Henry. I sounded and the bell rung at a crossing near did not see them stop work. The men were usthe school building, about 300 feet north of back. Up to the time that I started to cross ing picks. I did not see them stop and step the place of the accident, but that the bell the track I had been standing still. I did not was not ringing at the time of the accident see the train coming, and I did not know that and had not been rung nor had the whistle it was coming. I have heard gravel trains come down, and heard the squeaking and screeching been sounded for a distance of about 300 feet. of the wheels. Sometimes the trains make a As the train approached the plaintiff and oth- big noise. I did not hear that on that day. I er children were standing with or near the had not seen the train coming. I was eight or nine feet from the track when I started to cross section men, 6 or 8 feet from the track. A it. I started straight across. I did not decide switchman stood on the footboard of the en- to run across to get across before the train came. gine and on the foremost part of it as it ap- It was after I fell that I knew that the train was proached. When the train was but a few bled and fell. After I fell I could not get out of coming. The train did not strike me. I stumfeet away, the plaintiff started to run across the way. It ran over me before I saw it. The the track in front of the moving engine to go bottom of my foot was up. I did not hear any on the other side of the track and down the one shout when I started to run. I did not norailroad yard to play with a little girl com- from under the tender of the train. Mrs. Nelson tice that any one grabbed me and pulled me out panion. The switchman, seeing her, reached was the first person who took hold of me. The for her just as she stumbled and fell for- first I knew of the train was when the wheels ran over." ward. She cleared the track, except the toes of one foot, which were run over and so injured as to require amputation. The plaintiff testified: "I had been to school that day. It was in the afternoon. I was going home from school, and there was a train on the other side of the track. I did not see the one coming. I was going to run down in the yard to play with Sara's little sister. I didn't see the train coming, so I went across the track, and then I slipped. fell down, and the train ran over my toes. Then Mrs. Nelson came out and carried me in the house, and took off my shoes and stockings." I Other witnesses also testified that as the train approached without warning the plaintiff was standing with other children and the workmen eight or nine feet from the track, and that she started to run across the track in front of the moving engine and stumbled and fell. The switchman on the running board testified: "I was on the rear footboard, and, as we were backing down, that would be the most forward part of the equipment. I was on the right-hand corner. I was occupying that position from the time we left the gravel pit. I was keeping a lookout ahead, and also from that position I can signal to the engineer. After we came from the gravel pit, we stopped for the Bamberger crossing. We went on over the crossing, then went on slowly down the grade until we came to the Bonneville School, and we whistled for the crossing, then rang the bell, and that was about all that was done until the accident. I saw some section men and some |