On Motion to Quash.
Opinion
PER CURIAM.
This is an original application for mandamus, on the relation of the attorney general, to compel the state board of equalization to make certain assessments in accordance with the provisions of section 1, Chapter 48, and section 6, Chapter 49, Laws of the Sixteenth Legislative Assembly. The material facts alleged in the affidavit are:
That the Montana Power Company, Great Falls Power Company, Thompson Falls Power Company and Montana Reservoir and Irrigation Company are corporations organized and existing under the laws of Montana; that they are what is known as hydro-electric companies, and are engaged in the business, in this state, of generating electric power and energy, and in trans[438]*438mitting, distributing and selling the same; that on the first Monday in March, 1919, each of said corporations was the owner of a large number of lots and parcels of real estate, buildings and structures thereon, dam sites, dams, power-houses, machinery and furniture, and also rights of way, buildings situated thereon, pole and transmission lines, and other property, all situated in the state of Montana, and subject to taxation therein for the year 1919; that the power and transmission lines of each of said corporations on said day constituted a single and continuous property operated in more than one county in this state; that some time prior to the first Monday in March, 1919, the officers and agents of each of said corporations returned to and filed with the county assessor of each county in which a part of it's property was operated a statement in compliance with the requirements of section 2511, Revised Codes, which. rightfully included all lots and parcels of real estate, and other property not included in its right of way, assessable by the assessor of such county, and wrongfully included rights of way, pole and transmission lines, distributing systems, and other similar property, assessable by the state board of equalization; that in such statement each item of property was listed separately, and a fixed value placed thereon by the officers and agents of the corporation; that the assessor of each county accepted the valuations so placed on such items of property, and assessed the same accordingly; that in making the assessment the value of each item was arrived at by the assessor by taking the original cost of construction and deducting therefrom the depreciation, which resulted in an assessment at only forty per cent of the full cash value; that the property of each of said corporations is joined together so as to form a single, continuous and entire property and plant, by reason of which an intangible value has been created, and now exists, giving the property, as a whole, a value greatly in excess of the aggregate of the values of the separate items of property forming parts thereof; that the fact that all of the items of property/ taken together, constituted a single and continuous property was not considered in making the as[439]*439sessment, and that the franchises, privileges and contracts, net earnings, value of capital stock and outstanding bonds, of each corporation, were also not taken into consideration; that the state board of equalization met in regular session on the fourth Monday in July, 1919, and thereafter took up the matter of the assessment of the property of said corporations; that the board refused to change or correct the assessments made by the assessors by striking therefrom the assessments of rights of way, pole and transmission lines, distributing systems and other similar property, and failed, neglected and refused to assess the same as a state board of equalization, and permitted the assessments made by the county assessors to stand without change; that the board at said meeting ascertained that certain other rights of way, pole and transmission lines, telegraph lines and similar property had not been assessed by the respective county asses-" sors, and thereupon proceeded to assess the same for taxation 'at less than their full cash value; that the board failed to increase the assessments made by the county assessors to make them represent the full cash values of the properties assessed; and that the values for assessment and taxation of the properties of said four corporations were so inadequate and disproportionate, and so far below the full cash value thereof, as to show a gross abuse of discretion, and failure to exercise sound judgment, and for that reason were fraudulently made and do not constitute a lawful assessment.
The case is before us on a motion to quash the alternative writ of mandate issued herein, and to dismiss this proceeding, filed by respondents, which raises the questions as to the constitutionality of that part of section 1, Chapter 48, which vests in the state board of equalization the power to make an original assessment of the rights of way, pole and transmission lines, distributing systems, and similar'property, of said corporations, and,the constitutionality of so much of section 6, Chapter 49, as requires said board to value such property for taxation on a proportionate mileage basis.
[440]*440Section 1, Chapter 48, in so far as it. is material here, confers upon the state board of equalization the power and duty “to annually assess the franchises, roadway, roadbed, rail and rolling stock and all other property of all railroads, and the pole lines and rights of way and all other property of all telegraph and telephone lines, electric power and transmission lines, ditches, canals and flumes, and other similar properties, constituting a single and continuous property operated in more than one county in the state, and to apportion such assessments to the counties in which such properties are located on a mileage basis, provided, however, that-lots and parcels of real estate, not included in rights of way, with the buildings, structures, and improvements thereon, dams and power-houses, depots, stations, shops and other buildings erected upon right- of way, furniture, machinery and other personal property shall not be considered, as a part of any such single and continuous property, but shall be considered as separate and distinct therefrom and shall be assessed by the county assessor of the county wherein they are situate”; and section 6, Chapter 49, in part provides:
“The value for taxation of the property and plant of each telegraph, telephone, electric power and transmission line, canal, ditch, flume, and other properties to be assessed by the state board of equalization, shall be that portion of the total value of the entire plant and property wherever situated that the total mileage within this state bears to the total mileage wherever situated, after deducting from such portion the total assessed value of all property which has been assessed for taxation in this state -by the county assessors of the several counties of this state, and the state board of equalization shall assess the same accordingly.”
The provision of section 16,'Article XII, of the Constitution, [1] that “all property shall be assessed in the manner prescribed by law, except as is otherwise provided in this Constitution,” is clear and explicit in vesting in the legislature plenary power in matters of assessment, including the power to designate [441]*441the agency through which the assessment shall be made. Speaking with reference to this provision, in the case of Missouri River Power Co. v. Steele, 32 Mont. 433, 80 Pac. 1093, this court said: “We might be somewhat confused as to the meaning of the phrase ‘in the manner prescribed by law,’ except for the interpretation placed thereon by the same section. By the first sentence of this section the legislature is left free to prescribe the manner in which property shall be assessed, except so far as the Constitution has prescribed such manner. And what is the exception? That ‘the franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one coufity in this state shall be assessed by the state board of equalization. ’ The manner, then, includes the agency which shall make the assessment; for the above excepting clause has no reference to the last portion of the section, which only refers to the division or apportionment of the assessment after the same is made, and can only refer to the agency employed, which in that clause is the state board of equalization.” In that case the court had under consideration the constitutionality of a statute which provided' for the appointment, in certain counties, of boards of appraisers whose duty it was to fix the valuation of real estate for the purpose of assessment by the county assessor; and what is there said is applicable here, unless by some other provision of the Constitution the authority of the legislature to confer upon the state board of equalization the power to make an original assessment of property, other than railroad property, is denied.
It is argued by counsel for respondents that the authority conferred upon the state board of' equalization to assess the [2-4] property of railroads excludes all other powers of original assessment, because the provisions of the Constitution are mandatory and prohibitory (see. 29, Art. Ill); that the maxim expressio umus est exclusio alterius applies; and that the omission from section 15, Article XII, of the Constitution as amended in 1916, which defines the duties of the state and county boards of equalization, of the provision which was a part [442]*442of said section before it was amended, that the hoards shall “also perform such other duties as may be prescribed by law', ’ ’ evinces a clear intention to restrict the duties of the state board of equalization to those specified in the section itself, with the exception only of the assessment of the property of railroads. Such an omission would have great force if we were considering its effect in connection with a statute amended by the legislature. However, the Constitution is not a grant, but a limitation, of the powers of the legislature. This fundamental distinction between the Constitution of a state and the Constitution of the United States has frequently been stated by this court. In the case of State ex rel. Sam Toi v. French, 17 Mont. 54, 30 L. R. A. 415, 41 Pac. 1078, it was said: “A state legislature is not acting under enumerated or granted powers, but rather under inherent powers restricted only by the provisions of the sovereign Constitution”; and in the case of Missouri River Power Gp. v. Steele, above, this court said: “In the matter of legislation, the people, through the legislature, have plenary power, ..except in so far as inhibited by the Constitution, and the person who denies the authority in any given instance must be able to point out distinctly the particular provision of the Constitution which limits or prohibits the power exercised.” (See, also, Hilger v. Moore, ante, p. 146, 182 Pac. 477, and In re Pomeroy, 51 Mont. 119, 151 Pac. 333.)
In determining, therefore, the effect of this omission from section 15, it is to be borne in mind that the inquiry is not whether the power for a particular enactment is to be found in express terms in the Constitution, but whether there is anything in that instrument which forbids the legislation. Viewed in this light, we do not find in the omission of the sentence above quoted any inhibition of the exercise by fhe legislature of the power under consideration.
The authority contained in the first sentence of section 16 is also not in any wise abridged by the remainder of the section, which empowers the board to assess railroad property. The [5] provisions of, that section are mandatory and, prohibitory, [443]*443in the sense that the legislature cannot take from the state board of equalization the power to assess railroad property, nor vest such power elsewhere.
The maxim expressio unius est exclusio alterius, invoked by [6] respondents, is a rule of interpretation, and not a constitutional command, and cannot be made to serve as a means to restrict the plenary power of the legislature, nor to control an express provision of the Constitution.
It is also contended that the Act in question is invalid because it denies to the taxpayer the right to have his property [7] assessed by the local assessing officer, as well as the right to have the valuation put thereon reviewed by the county board of equalization. This contention cannot be sustained. It is not a right of the taxpayer to have his assessment made, in the first instance, by any particular officer, or to have it equalized by any particular board. (Missouri River Power Co. v. Steele, above; Ames v. People, 26 Colo. 83, 56 Pac. 656.) So long as the principles of uniformity and just valuation are observed, his rights are not invaded.
As the power of the legislature in all matters of taxation is plenary, except where expressly restricted by the Constitution, and the Constitution has not designated the officer or agency by which assessments shall be made, except in the case of railroad property, we conclude that the legislature had the authority to confer upon the state board of equalization the power of assessment prescribed in section 1, Chapter 48, above.
The respondents cite the case of Northern Pac. Ry. Co. v. Brogan, 52 Mont. 461, 158 Pac. 820, as being in point here. In that case, this court considered the extent of the power conferred by the constitutional provision authorizing the state board of equalization to assess the property of railroads, and held that a telegraph line extending along the right of way of a railroad was not assessable by the state board of equalization as a part of the roadway; but the power of the legislature to prescribe the manner of assessment of property was not there involved.
[444]*444It is also earnestly contended by the respondents that the portion of section 6, Chapter 49, above quoted, establishes an [8-10] arbitrary rule of assessment, in violation of the Fourteenth Amendment of the Constitution of the United States, prohibiting the taking of property without due process of law, and also violates the principle of uniformity established by the Constitution of Montana. It will be observed that the section does not by its terms attempt to control the discretion of the state board of equalization in determining values, but only prescribes that when the value of the entire property, wherever situated, has been ascertained, the value for taxation shall be that portion of tie total value of the entire plant and property, wherever situated, that the total mileage within this state bears to the total -mileage wherever situated, after deducting from such portion the total assessed yalue of the property which has been assessed by the county assessors. This Act does not repeal existing statutes on the subject of assessment, but is to be treated as a supplement thereto. The various sections of this Act, and of existing Acts, are, therefore, in pari materia, and are to be construed together. Thus section 2502, Revised Codes, which provides that “all taxable property must be assessed at its full cash value” is not in any wise affected by Chapters 48 and 49, and is to be considered in connection with them. These provisions are also to be read in the light of the constitutional requirement that there shall be a uniform rate of assessment and taxation, and a just valuation for taxation of all property. (Sec. 1, Art. XII.)
In construing a statute we are not permitted to give it such an interpretation as will make it a nullity unless it is clear that such a construction is necessary, but every reasonable doubt is to be resolved in favor of its validity. (State ex rel. Hay v. Alderson, 49 Mont. 387, 403, Ann. Cas. 1916B, 39, 142 Pac. 210.)
A statute similar in its terms to section 6, Chapter 49, except that it provided that the' taxing board should take into consideration the value of the capital stock of the corporation to be taxed in ascertaining the value of its property, was considered [445]*445by tbe supreme court of Indiana, in tbe case of Western Union Tel. Co. v. Taggart, 141 Ind. 281, 285, 60 L. R. A. 671, 40 N. E. 1051, and the court said with reference to it: “It is to be remembered that the law under consideration (Acts 1893, p. 374; Rev. Stats. 1894, see. 8478, and following), for the assessment and taxation of telegraph and other like companies, is supplementary to and amendatory of the general Act for taxation (Acts 1891, p. 199; Rev. Stats. 1894, sec. 8408, and following) ; and also that the duties and powers of the state board of tax commissioners and other assessing and taxing officers of the state are defined and prescribed solely in said general tax law of 1891. The two Acts are therefore to be treated not only as in pari materia, but as in fact but different parts of one and the same law of taxation; and hence all the sections of the Act under consideration are to be so construed, if possible, as to harmonize the same with the provisions of the general law.” And again, in the same case, the court said: ‘ ‘ The Act, it is true, provides a method of valuation — the mileage method — as a basis for the taxation of certain property within the state of Indiana. But this is simply a means for determining the true cash value of the property within the state and if in the case of appellant’s property, or in any other case, it is shown to the board, or is discovered by them that still further deductions should be made, on account of larger proportional values outside of the state, or for any other reason, then the board must make such deductions, so that finally, only the property within the state of Indiana shall be assessed, and that at its true cash value. ’ ’ The language last quoted was directed to the contention there made, which is likewise made here, that the statute, if literally construed, would result in taxing property situated outside of the state, in instances where the property of a telegraph line situated outside the'state was much greater in value, in proportion to the mileage there, than the value of the property in the state, in proportion to the mileage inside the state. This construction of the Indiana statute was approved by the supreme [446]*446court of the United States (Western Union Tel. Co. v. Taggart, 163 U. S. 1, 41 L. Ed. 49, 16 Sup. Ct. Rep. 1054 [see, also, Rose’s U. S. Notes]), and there the court said: “This court, at the last term, in several eases, affirming judgments of the supreme court of Indiana, held that the statute of 1891 did not, in the case of a railroad partly in that state and partly in another, require that the value of the part in Indiana should be determined absolutely by dividing the whole value upon a mileage basis; but only that the total amount of stock and indebtedness should be taken into consideration in ascertaining the value; and that the statute was constitutional.”
In the case of Cleveland etc. Ry. Co. v. Backus, 154 U. S. 439, 38 L. Ed. 1041, 14 Sup. Ct. Rep. 1122 [see, also, Rose’s U. S. Notes], the court used this pertinent language: “It is not to be assumed that a state contemplates the taxation of any property outside of its territorial limits, or that its statutes are intended to operate otherwise than upon persons and property within the state. It is not necessary that every section of a tax Act should in terms declare the scope of its territorial operation. Before any statute will be held to intend to tax outside property, the language expressing such intention must be clear.”
¥e think the interpretation of the Indiana statute is sound in principle, and that a like construction is applicable here. As so construed, section 6, Chapter 49, does not establish an arbitrary rule of assessment, but only requires that the total value of the plant and property, wherever situated, shall be taken into consideration in determining the actual cash value for taxation of that portion of the plant and property situated within this state.
It is insisted by the attorney general that in order to arrive at the actual cash value of the property of each of the [11] corporations mentioned in this proceeding, the board was required to consider such property as a unit, with such added values as would result from the joining together of the separate items of property, and the operation of the whole as a single and continuous plant, and that in so doing, the board must ascer[447]*447tain the value of the outstanding capital stock and bonds of each corporation, for the purpose of arriving at the value of its property for taxation, or must ascertain its actual net earnings, and from them compute the value of its property. In support of this contention, the attorney general cites numerous eases decided by the supreme court of the United States, which will be found collated in the recent decision of that court in the case of Union Tank Line v. Wright, 249 U. S. 275, 63 L. Ed. 330, in which the court has uniformly sustained valuations for taxation based upon the capitalization of income and stock and bond plans, and other similar methods; computed on the basis of the proportion of the mileage within the state to the total mileage of the property wherever situated. In each case in which the tax has been sustained, however, the court has determined that the statute under which the assessment was made only established a method of ascertaining values for the consideration of the taxing board, and did not lay down an absolute rule of assessment. In the case of Fargo v. Hart, 193 U. S. 490, 491, 48 L. Ed. 761, 24 Sup. Ct. Rep. 498 [see, also, Rose’s U. S. Notes], the court denied the right of a state to adopt a method that would result in taxing property situated beyond its borders; and in the case of Union Tank Line v. Wright, above, the court condemned an assessment made by the state of Georgia of certain oil tank-cars, on the basis of the ratio of miles in that state over which the oil cars moved, to the total mileage traveled by the company’s cars in all of the state, as arbitrary and violative of the Fourteenth Amendment of the federal Constitution, as well as imposing an undue burden upon interstate commerce. That case was decided upon the facts involved in the particular assessment, and, so far as general principles are concerned, the holding does not appear to overturn the previous decisions of that court, though the members of the court expressed diverse opinions on that subject.
It is one thing, however, to approve a method of assessment adopted by a taxing board in the exercise of its discretion, as was done in most of the cases referred to, and quite another thing, [448]*448different in principle, to compel a board by writ of mandate to adopt a particular plan in determining values for taxation. As we have previously pointed out, we find nothing in the statute which attempts to direct the state board of equalization as to the method to be pursued in arriving at the actual values of the property of the corporation, whether inside or outside of the state, and we may not lay down a rule to control their discretion in that respect. The board is an agency created by the Constitution with certain well-defined powers, discretionary in character. The writ of this court may be directed to the board to require them to look to the provisions of the enactment under consideration, as a method of making the assessment of the property of the corporations in question, and section 2502 above, requires them to assess the property at its full cash value; but in so far as the means to be adopted by them in arriving at values are concerned, we may not interfere. Those matters are within the discretion of the board, and so long as they are not guilty of fraud, and do not adopt a fundamentally wrong principle of assessment, we cannot interpose, or substitute our judgment for theirs.
In the case of Illinois Central Ry. Co. v. Greene, 244 U. S. 555, 61 L. Ed. 1309, 37 Sup. Ct. Rep. 697, in discussing the powers of a similar board, the court said: “The district court properly held that the action of the board must be sustained unless it was made to appear that they had adopted a fundamentally wrong principle, or had been guilty of fraud. It is held further, that no fundamentally wrong principle was involved in determining whether such a railroad system should be valued on the capitalization of income or on the stock and bond plan; or, if the former, what rate of interest should be used in capitalizing, or how many years’ earnings should be considered, or what was in fact the amount of net income for a given year; or, if the stock and bond plan was adopted, what was the value of the stock and bonds; and that on these and similar matters the action of the board, in the absence of fraud, was binding upon the court. In this we concur.”
[449]*449In the case of Pittsburgh etc. Ry. Co. v. Backus, 154 U. S. 421, 38 L. Ed. 1031, 14 Sup. Ct. Rep. 1114, it was also said: “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. Here the question determined by the state board was the value of certain property. That determination cannot be overthrown by the testimony of two or three witnesses that the valuation was other than that fixed by the board.”
Speaking on this same subject in the case of Danforfh v. Livingston, 23 Mont. 558, 563, 59 Pac. 916, this court said: “The value of property is a matter of opinion, and there must necessarily be left a wide room for the exercise of this opinion. Absolute accuracy cannot always be attained. Courts cannot be called upon, in every instance, to settle differences of opinion in this regard between the assessing officer and the property owner. Otherwise, courts could be converted into assessing boards, and, in assuming to act as such, would usurp the powers lodged elsewhere by the law-making branch of the government.”
The allegation of fraud in the affidavit amounts to nothing more than the statement, in a different form, that the board wrongfully ignored the provisions of the statute in question, and both made and adopted valuations which were less than the full cash value of the properties assessed, and need not be further noticed. The only allegations, therefore, which require consideration are the allegation that the board failed to make an original assessment of the property belonging to said corporations as required by section 1, Chapter 48, and section 6, Chapter 49, above, and the further allegation that they failed to correct the assessments made by the county assessors so as to make them represent full cash values. Assuming these allegations to be true, as we must for the purposes of the motion to quash, it is apparent that the board did not perform the duties cast upon them in these respects.
(Submitted January 2, 1920;
Decided January 12, 1920.)
[186 Pac. 697.]
Taxation — State Board of Equalization — Mandamus—Evidence — Inadmissibility.
1. Where the point at issue on application for writ of mandate to compel the state board of equalization to reassess the properties of 'several electric power corporations, was whether such properties should be regarded by it as one plant, evidence, in the form of annual reports made to the public service commission, offered by the state for the purpose of showing that the corporation had treated their properties as one plant, the cost of each plant, the amount of the capital stock of each, etc., held inadmissible, the questions of the value of the properties, or how any one of the corporations considered its property being immaterial to a determination of the cause.
Mandamus — Nature of Writ.
2. The writ of mandate is not a writ to correct errors but to compel aetion.
Taxation — State Board of Equalization — Discretion—Mandamus.
3; 3eld, under the above rule, that where the state board of equalization, sitting for the purpose of reviewing, adjusting and equalizing assessments under the provisions of subdivision 7, section 1, Chapter 48, Laws of 1919, has exercised its judgment and discretion, and in the absence of statutory direction how it shall proceed, or of fraud, bad faith or flagrant abuse of discretion, the supreme court cannot by mandamus compel the board to proceed in any particular manner or to reverse its decision, even though the result reached may be clearly unjust and erroneous.
Same — Fraud—Presumption—Duty of Courts.
4. Fraud in taxing officials cannot be presumed, nor can courts inquire as to the operation of their minds in fixing values.
Same- — ■ Valuation of Property — Review — Assessing Officers — Duties and Accountability.
5. The determination of the value of property for the purpose of assessment lies within the sound judgment of the assessing officers, subject to review only by the county and state boards of equalization, and accountable only to the electors for the manner in which they exercise that judgment.
The motion to quash the alternative writ, and to dismiss this proceeding, is therefore overruled, and the respondents may answer within ten days, if they so elect. Otherwise, a peremptory writ of mandate will issue.