tion must be so construed as to run counter to, or be in conflict with, any of the provisions of our Constitution in regard to the assessment, collection, etc., of taxes, then said act must be held to be in violation of the Constitution; but if the duties imposed upon said board by said act do not take away from or impinge upon the duties of the constitutional officers who are authorized to assess, equalize, collect, and distribute taxes, then said act is not in conflict with the Constitution and is valid.

and neglect to reduce the valuation fixed by apportionment, and distribution of taxes. It the assessor upon the brewery building afore- is clear that if the provisions of said secsaid, be and the same is hereby set aside and declared erroneous and of no effect. It is further ordered that the said Board of Equalization, consisting of Meyers Cohn, George Gittins, and W. B. Wright, be and they are hereby directed that immediately upon receiving notice of this order, to enter upon the assessment roll of the said Bannock county, state of Idaho, or cause to be entered thereon in accordance with the statute in such cases provided, the valuation of the aforesaid improvements upon said lots at the sum of $10,000, and the machinery above referred to at the sum of $1,000, and that when such change in said assessment shall have been made as herein directed, the same shall become the equalized assessment of said property, upon which shall be computed the taxes to be paid by the said owner of said property for the year 1913." The Board of Equalization of Bannock county refused to comply with said order so made, and the Idaho Tax Commission now seeks in this proceeding to compel said board to comply with said order.

[1, 2] The constitutionality of the act of the Legislature creating the Idaho Tax Commission, and providing for its organization and defining its powers and duties, etc. (Sess. Laws 1913, p. 167), is raised by this proceeding, and if it be determined that said act is constitutional, then the question of the duties of said Tax Commission is also raised.

It is contended by counsel for the Tax Commission that said act was intended to give plenary powers to said Commission as set forth in section 8 of the act, which section is as follows: "The Commission shall supervise the administration of all laws relating to the assessment of property, and the levy, collection, apportionment and distribution of taxes, and shall exercise power and authority to enforce all such laws, and in so doing shall oversee all boards of assessment, boards of equalization and all officers upon whom any duties devolve under the revenue laws of this state, and require all such boards and officers to perform the duties imposed upon them by such laws, and may examine all books, records and accounts of such boards and officers, and require such boards and officers to furnish the Commission such records, data and information as may be had from the records in their several offices and as the Commission may deem necessary." It will be observed from the provisions of said section that it does not confine the supervision and administrative powers of the Tax Commission to any one department or feature in the levy, collection, apportionment, or distribution of taxes, but makes its powers in this respect general, so as to cover all features of the revenue laws of the state pro

[3, 8] The direct question at issue in this case is, Has the Tax Commission power to compel a county board of equalization to adopt its views in equalizing the value of certain property for taxation? The assessor is required to assess the property in his county at its actual cash value, according to his honest opinion and best judgment, and if the opinion of the Tax Commission is different from that of the assessor, the Tax Commission cannot compel the assessor to change such assessment and make it conform to the opinion of the Tax Commission. And so with the Board of Equalization. It has certain discretion in the equalization of the values placed upon property within its county by the assessor; and, while the Tax Commission has full power and authority to consult and advise with the Board of Equalization in regard to the true cash value of the property sought to be equalized, they have no power or authority under said act to compel the Board of Equalization to equalize according to the Commission's views rather than its own, so long as the officer or board performs the duties imposed by law, and acts in good faith and according to his best judgment and discretion.

[4-7] The words "assessor" and county "board of equalization," as used in the Constitution, carry with them the powers usually conferred upon officers or boards of like names. Under section 6, art. 18, of the Constitution, it is essential that the assessment of property located wholly within a county shall be made by the assessor elected by the voters of the county, and if the assessor has no discretion in placing a value upon the property assessed, he is nothing more than a listing officer, without any power to assess property at its cash or any other value, according to his best judgment or legal discretion. It may be said that the duties devolving upon the assessor and county board of equalization can still be performed, but such duties are no more than empty forms, if ap pointive boards and officers desire to act and fix values, and do so act. The fact that it is left entirely to the judgment of such appointive boards and officers as to whether or not they will act is not controlling.

Before taxes can be levied upon any prop

it must be listed and valued for taxation. | respective counties, under such rules and Under our Constitution this duty devolves regulations as shall be prescribed by law. upon the officers whose title of office indi- All of said officers are elected by the people. cates that duty, to wit, the assessors. The First the assessor makes the assessment, Legislature cannot assess property, nor can and then the county board of equalization reany appointive board assess property, for views the assessments and equalizes them. taxation under the Constitution of the state The third step provided by the Constitution of Idaho, and the essential duties of an asses- is that the State Board of Equalization shall sor and a county board of equalization must equalize the assessment of property between be preserved until a change is made by the different counties of the state, and also proper amendments to the state Constitution. assess the property of all railroads, telegraph, It is stated in Cooley on Taxation (3d Ed.) telephone, and transmission lines of the state. p. 778, that a board to review assessments, The State Board of Equalization is provided having power to make changes, is in effect a for by section 12, art. 7, of the state Constiboard of assessors, and if by the law asses- tution, which board shall consist of the Govsors must be elected by the people, the mem- ernor, Secretary of State, Attorney General, bers of such board must be so chosen. State Auditor, and State Treasurer, whose duties shall be prescribed by law. The duties of the State Board of Equalization, as prescribed by law, are of two kinds, and as such were clearly considered by the framers of The duties of the State our Constitution. Board will be referred to hereafter in this opinion.

[9] The Constitution provides a method or system for the assessment of property, with the object of arriving at a uniformity of valuation, and designates certain officers to perform certain duties involving the exercise of their legal discretion or individual judgment, certainly as to the value of property, and it is beyond the power of the Legislature to pass any law that would take from the assessor his individual judgment in regard to the value of property, or controlling the exercise of his judgment, in the first instance, except that the Board of Equalization may equalize such assessments. If an officer exercises his legal discretion in good faith and without fraud, then he is performing his duty under the law, otherwise not; and, if not, then he fails to perform his duty, and is liable for a failure to faithfully perform his duties.

It is stated in Cooley on Taxation (3d Ed.) pp. 427-429, that where the Constitution provides a scheme or framework for the mechanical administration of the revenue laws of the state, the Legislature cannot substitute

another method therefor. When the Constitution devolves a duty upon a particular person, the Legislature may not substitute any other person to perform that duty.

What has been said in regard to the assessor applies equally to the county board of equalization. As bearing upon this question, see State v. Tonella, 70 Miss. 701, 14 South. 17, 22 L. R. A. 346; People v. Raymond, 37 N. Y. 431. Those decisions are along the line that the assessment and equalization of property should be made and done by the officer designated and elected by the voters, as provided in the Constitution.

[10, 11] Section 6 of article 18 of the state Constitution provides for the biennial election of county commissioners, and section 10 of the same article provides that the board of county commissioners shall consist of three members, and section 12 of article 7 provides that the board of county commissioners of the several counties of the state shall constitute boards of equalization in their respectice counties, whose duty it shall be to equalize the valuation of taxable property in their 137 P.-12

This Board of Equalization is composed of elective officers. These elective boards have

been provided for the purpose of equalizing taxes, and each has particular duties to be performed which are prescribed by law. The state has been under this system since state

hood.

The case of State ex rel. Brown County v. Myers, Judge, 52 Wis. 628, 9 N. W. 777, cited by counsel for plaintiffs, advances a startling doctrine, as we understand it, suggested in certain dicta in that case. Referring to the assessment and collection of taxes, the statement is as follows: "For this whole matter

is within the control of the Legislature, which, doubtless, might abolish the present system and create a state board for the astaxable property of the state." Is it possible sessment and equalization of the value of the that in Wisconsin the Legislature is above the Constitution and the people, and may inaugurate a different system for the assessment and equalization of the value of taxable property in that state than that provided by the Constitution? This court is not willing to adopt the rule that the Legislature is above the Constitution adopted by the people themselves. The people in adopting the state Constitution have provided a method for its amendment, and under that provision the Legislature is not authorized to amend it. Sections 1 and 3, art. 20. Under said section 1 it is made the duty of the Legislature to submit any amendment or amendments to the electors of the state, and by said section 3, whenever two-thirds of the members elected to each branch of the Legislature shall deem it necessary to call a convention to revise or amend the Constitution, they may do so, as provided in said section.

The doctrine is advanced by some people that even the Constitution of the United States is old and antiquated, and that Congress ought not to pay much attention to it,

and also that the state Constitutions may be disregarded by the Legislatures. We cannot concur in that doctrine. If the Constitution of the state of Idaho is not satisfactory to a majority of the people, let them amend it in an orderly way, and as has been provided by the Constitution itself. The amendment of the Idaho Constitution is not a difficult matter, but the people themselves have provided in their Constitution that it can only be amended as therein provided.

duties. But they are not permitted to perform them as contemplated by the provisions of the Constitution. Assessors in that state are charged with the performance of certain duties, and to act in a particular manner, and have the right to the exercise of their judgment in assessing property. The court has the power to compel them to act wherein they have failed to act, but the limit of the court's power would be to order that the assessor exercise his honest judgment in eonformity with the law, and not require him to place a value upon property different from what his good judgment and legal discretion required him to do. If that be true, how can a Legislature confer upon an appointive board the right to say whether the honest judgment exercised by an equalizing board or officer has been legally exercised, when the only fault to be found is that the honest judgment of the assessor or the equalizing board differed from the honest judgment of the appointive board?

In Pittsburg, etc., Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114, 38 L. Ed. 103, the court states: "Whenever a question of fact is thus submitted to the determination of a special tribunal, its decision creates something more than a mere presumption of fact, and if such determination comes into inquiry before the courts, it cannot be overthrown by evidence going only to show that the fact was otherwise than as so found and determined."

[12] In People ex rel. Green v. Board of Com'rs, 176 Ill. 576, 52 N. E. 334, in passing upon the power of courts in mandamus pro

The case of State v. Daniels, 143 Wis. 649, 128 N. W. 565, is relied upon by the plaintiffs. It appears from that case that in 1905 the Wisconsin Legislature passed an act providing that whenever it was to appear to the State Tax Commissioners that the assessment of property in any assessment district was not made in substantial compliance with the law, and that the interests of the public would be promoted by a reassessment, such commissioners should have authority to order a reassessment and name one or more persons who should make the same, and also that the commissioners might appoint a board of review to review the assessment made by its appointees for that purpose. This law was passed under constitutional provisions somewhat similar to the constitutional provisions of Idaho, providing for the election in the taxing districts of local assessors. It is stated in the opinion that it is conceded by both sides in that case that the law under consideration did not deprive, nor purport to deprive the local communities of the right to elect their own assessors and boards of review, and that the appointees were select-ceedings to compel boards or officers to pered merely to perform a specific act, and that when that was performed their powers and functions ceased. Under those facts the following question was suggested by the court: "Does the act unlawfully deprive the local officers of the right to exercise their functions and the electors of the municipality of the right to choose their agents to do the particular work?" The opinion then proceeds more upon the ground of supposed public policy than of law, as we view it, to the effect that the legal officers are not interfered with, and that their functions are not curtailed so long as they do not violate the law which they are bound to obey. We are unable to understand by what rule of logic it can be said that the Wisconsin act did not have the effect of depriving the assessors of duties imposed upon them by the Constitution. The Constitution of Wisconsin provided for an original assessment by a particular officer, and a review thereof by a particular body, both elected by the persons directly affected by the action of such officer and board. We fail to understand how this act of the Legislature which provided for reassessment and review of such assessment by officers appointed and not elected can have any other effect than to deprive the local officers of the right to perform those duties. It may be

form certain acts, the court held that if the act sought to be enforced by mandamus is judicial and discretionary in its character, the court will only compel the defendants to act, but never compel them to decide in a particular manner. Those are the limits of powers of courts in matters of this kind, and the principle applies equally to a Legislature when the office is a constitutional one.

[13] Can the people of this state by their Constitution reserve to themselves the right to select officers and boards who shall judge as to whether or not the assessments have been properly made? They certainly can, and in this case have done so. It is not within the power of the Legislature to provide for appointive boards to usurp this particular function of the local board. We are not inclined to follow any decisions which hold that the Legislature has power or authority to set aside the system or scheme for assessing, equalizing, and taxing property established by the Constitution and enact one of its own.

Reliance is placed by the plaintiffs upon the case of Ames v. People, 26 Colo. 83, 56 Pac. 656. It appears from that case that in 1891 the General Assembly of Colorado passed an act for the better assessment and collection of revenue. By that act it was made

here.

to assess all the property in the state owned, rectly against the contention of plaintiff's used, or controlled by railroad, telephone, telegraph, and sleeping and other palace car companies. The Constitution of Colorado had a provision somewhat similar to that of our own, providing for the election biennially in every county of the state of an assessor.. The precise question raised and decided in that case was as to whether or not the county assessor was the only officer in the state who could assess property, and the court there held that the assessor did not have the exclusive right to assess a class of property the situs of which is not in a single county but in several counties.

In the case of People ex rel. Crawford v. Lothrop, 3 Colo. 428, the question presented was the power of the State Board of Equalization to raise the aggregate value of the assessable property in the state as returned to them by different counties. In speaking of the assessor in this regard, the court said: "The Constitution provides (section 8, art. 14) for the election in each county, each alternate year, of a county assessor. He is thus a constitutional officer, and though his duties are left unprescribed, the essential duties of an assessor must be presumed to have been [14] The fundamental idea, it seems, of the contemplated. Is there not here a plain inframers of our own Constitution, and of all tention on the part of the people to preserve Constitutions, in providing systems for the local control over the valuation of property assessment and collection of revenue is to for purposes of taxation?" In the same arrive at a uniform valuation of property opinion, referring to the power claimed to throughout the state; and one of the funda- be possessed by the State Board of Equalizamental ideas, in practically all of the states tion, the court said: "This claim, if well for the accomplishment of this purpose, is founded, makes them practically a board of by providing for the local assessment of prop-assessors, with power to fix and determine erty. By local assessment, however, is not values, as well as adjust and equalize valuameant that property shall be assessed by coun- tions." See, also, Taxation of Mining Claims, ty officers, but rather that property shall be 9 Colo. 635, 21 Pac. 476. assessed within the county in which the propIn Davies v. Board of Supervisors, 89 erty is located, and a railroad company, hav-| Mich. 295, 50 N. W. 862, the ground of the deing its lines in many counties of the state, cision is well stated by the court at page 863 or in all of the counties, would hardly ask of the Northwestern citation. It appears in that its property be assessed in different units that case that the Legislature had sought to by the assessor of each particular county, act- deprive certain constitutional officers of some ing independently of each other. The situs of the functions of their offices, and to confer of such property is not in any one county, those functions upon a board appointed by a but in the state, in a number of counties, power removed from the situs of the properand to follow out the spirit of the constitu-ey to be assessed and not responsible to local tional provision is to provide some means authority, and it was held that the Legislawhereby such property is assessed as a whole ture had no more power to deprive such offiby officers having jurisdiction of the whole. cers of their authority and confer that auThe case of Ames v. People, supra, is authority upon officers not of local selection thority for the position taken by the defendants in this case. Those considerations controlled the Colorado court in upholding the act above referred to, and are stated as follows: "While it may be, and we may, for our present purposes, concede it to be true, that except as limited by statutes, the office of assessor provided for in the Constitution, without specifying the duties of the officer filling it, implies the usual and ordinary incidents thereof, the proper construction of the section is not that the Legislature is prohibited by it from conferring upon some other tribunal the power to assess a class of property which the assessors cannot, in the very nature of things, so assess as to bring about its just valuation commanded by other constitutional provisions." Under the reasoning and authority of that case, we think it clear that the State Board of Equalization has power and authority, under rules to be established by the Legislature, to assess railroad, telegraph, and telephone lines, and other property whose situs extends to more than one county. As we understand it, the rule established by the Colorado case is di

than it has to abolish the offices, and that it was just as essential to local self-government that the functions of elective officers be preserved to such officers as that the right of election be protected. See, also, People v. Highway Commissioners, 15 Mich. 347.

The cases of Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437, and Nevada Tax Commission v. Campbell, 135 Pac. 609, do not seem to be in point in this case, for the reason that the Nevada Constitution has no provisions in regard to revenue officers even remotely similar to those contained in the Constitution of the states where the questions raised in this proceeding have been determined.

In Kentucky the Legislature provided for the election of a state board of equalization, with power to equalize the different classes of property between the different counties. The Constitution provided for local assessors and the local board of equalization, but did not provide for a state board of equalization. The constitutionality of the act providing for the State Board of Equalization was raised in the case of Spalding v. Hill, 86 Ky.

662, 7 S. W. 27, and the act was upheld. | the word "assessor" and the word "collector" The reasons for upholding said act are appar- as used in the constitutional provision, conent. The state board was not given power strued in the Power Company Case, conto equalize except as to certain classes of ferred such powers upon those officers as property between counties. It had no au- are conferred upon officers of similar names. thority over such assessments, and hence See, also, State v. Equalization Board, 18 was not a reviewing board of the local as- Mont. 473, 46 Pac. 266, which follows the sessing officer and boards of equalization. rule of the Colorado case in People v. Lothrop, 3 Colo. 428.