The opinion
CARTER, J.
Concurring and Dissenting.—I concur in the judgment of reversal but there is much in the majority opinion with which I do not agree. In my opinion the plaintiffs have not pursued the proper remedy to obtain the relief which they are seeking, assuming that they are entitled to such relief. The proper remedy for a taxpayer to pursue where he asserts that there has been a gross and discriminatory overvaluation of his property after seeking relief from the board of supervisors sitting as a board of equalization, or where he claims that he has been denied procedural due process of law by the board, as in the instant case, is to apply for certiorari to the superior court to review the board's action. As stated in the majority opinion the board is a local one exercising judicial functions and therefore its action should be subject to review the same as other local boards or commissions exercising judicial functions. The appropriate remedy to question the action of such boards is certiorari. (See Bayside Land Co. v. Dolley, 103 Cal.App. 253 [ 284 P. 479 ]; Huntley v. Board of Trustees, 165 Cal. 298 [ 131 P. 859 ]; Birch v. Board of Supervisors, 191 Cal. 235 [ 215 P. 903 ]; Imperial Water Co. No. 1 v. Board of Supervisors, 162 Cal. 14 [ 120 P. 780 ]; Miller & Lux v. Board of Supervisors, 189 Cal. 254 [ 208 P. 304 ] ; Drummey v. State Board of Funeral Directors & Embalmers, 13 Cal.2d 75 [ 87 P.2d 848 ] ; Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557 [ 59 P.2d 119 ] ; Laisne v. State Bd. of Optometry, 19 Cal.2d 831 [ 123 P.2d 457 ].) There is nothing in Merchants Trust Co. v. Hopkins, 103 Cal.App. 473 [ 284 P. 1072 ], County of Los Angeles v. Ballerino, 99 Cal. 593 [ 32 P. 581 , 34 P. 329 ], or County of Los Angeles v. Ransohoff, 24 Cal. App.2d 238 [ 74 P.2d 828 ], contrary to the propriety of certiorari in such cases. In the Hopkins case it was merely assumed without discussion that an action for an injunction was the proper remedy. In the other two cases the court merely held that the assessment could be questioned by way of defense to an action by the county for the taxes. In Pacific Postal etc. Cable Co. v. Dalton, 119 Cal. 604 [ 51 P. 1072 ], the court was really concerned with whether or not the complaint stated sufficient facts and not whether injunction was a proper remedy. By way of dictum it quotes from County of Los Angeles v. Balle *368 rino, supra, which was also dictum. In Wells, Fargo & Co. v. State Board of Equalization, 56 Cal. 194 , the statement was made in the concurring opinion and even so was dictum inasmuch as the proceeding was for prohibition.
In Las Animas etc. Land Co. v. Preciado, 167 Cal. 580 [ 140 P. 239 ], the court was concerned with a wholly unauthorized tax and not a review of the decision of the board of equalization. The same is true of Esterbrook v. O’Brien, 98 Cal. 671, 673 , [ 33 P. 765 ], where the court brings out the distinction in the character of the relief sought. The court said:
“Courts of equity do not review the proceedings of officers entrusted with the assessment of property. If proceedings taken by them are void, no title will pass by a sale of the real estate, and the party claiming to be injured must litigate his rights in an action at law for the possession of the premises. Of course there are exceptions to the rule, as where it is shown that the lands are not at all subject to taxation, or that there is no law authorizing any proceedings therefor, but that is not the case here.” (Italics added.)
In Crocker v. Scott, 149 Cal. 575 [ 87 P. 102 ] ; Bradford v. San Francisco, 112 Cal. 537 [ 44 P. 912 ], Central Pac. R. R. Co. v. Corcoran, 48 Cal. 65 ; Savings & Loan Soc. v. Austin, 46 Cal. 415 , and like cases the court was only concerned with whether there was an adequate legal remedy. Certiorari was not discussed.
To the end that some order and clarity be preserved in the field of judicial review of judicial action by a local administrative agency, it is suggested that certiorari be accepted as the proper remedy.
Where taxes become delinquent during the pendency of the proceeding for review or after or during a further consideration by the board after remand, the taxpayer must pay the taxes levied under protest and await the outcome of the proceedings to recover a refund if any. That is in furtherance of the policy that the public should not be deprived of the revenue necessary to perform the governmental functions. Such policy is indicated in sections 5136 to 5143 of the Revenue & Taxation Code.
But passing the procedural question it seems clear to me that under well settled rules of law, plaintiffs have not made out a case entitling them to relief in these actions.
It is not questioned in these cases that the taxpayers had *369 proper notice and a hearing before the board of equalization on their application to have the assessed value of their property reduced. Both they and the county assessor produced evidence and the sole issue involved was whether or not the valuation method adopted and used by the assessor was proper. It is not claimed that the board was guilty of actual fraud. The judgment of the board on conflicting evidence is final and may not be upset by a court. It is said in 24 California Jurisprudence 243:
“In the absence of fraud or malicious abuse of its powers, a board of equalization is the sole judge of questions of fact and of the value of property, and its determination—based on evidence—with reference to all matters within its jurisdiction is conclusive, and is not subject to collateral attack. Thus a decision, based on evidence, as to the value of property and the fairness of an assessment so far as amount is concerned, or a decision raising an assessment or that property has escaped assessment, is conclusive in the absence of fraud, regardless of errors committed in the assessment. The fact recited in the order that evidence was taken forecloses discussion as to the sufficiency of the evidence. Indeed, when the record does not show affirmatively that the board did not act upon evidence before it, its order is conclusive that it did so act.” There is no showing that there was constructive fraud. The majority opinion implicitly admits that. No showing of discrimination in respect to other property was made, the sole issue being the correctness of the method adopted by the assessor for valuing the property. Hence, the only point made is that procedural due process was denied. The majority opinion is predicated on the occurrences that transpired after the hearing and when the matter came up for decision by the board. At the original hearing there were present three of the five members of the board; Jessup, McDonough and Hauge. After evidence was introduced, the matter was submitted to the board for decision. Thereafter it came up for decision before the full board, the other two members, Ford and Smith being present, and it is solely by reason of the matters that there transpired from which it is determined that procedural due process was denied. At that time four cases were considered, the two involved in the instant action and two others. The deputy county counsel was present and stated as to the two others that a legal question was involved. *370 He made no comment whatsoever concerning the two instant cases. The only statement made to the contrary was by board member Smith who said: “The other two (the cases here involved) would be the same.” To which the deputy county counsel stated: “There is no question but what that is so on the two cases (not here involved) Mr. Holmes presented.” The applications in all four eases were then denied unanimously. It was not until after that denial that member Mc-Donough remarked: “On these matters it is a legal question to be determined by the court rather than a matter of equalization,” and the following occurred: “Mr. Boller: It is essentially so in the Signal Oil & Gas Company and the Long Beach Oil Development Company cases. It seems to me the others were factual in their showing. Mr. Smith : It is the same thing, they have a lease and are being assessed on their interests. They have a contract and are being assessed as though it were a lease. They are protecting their interest and in case the Long Beach Oil Development Company and the other one should win in court, these people are in the same position. Mr. Boller : Their agreement is not as carefully drawn up with the thought of not being taxable as a lease. Mr. Smith: Yes, the résumé they attach is exactly the same. Mr. Boller: I didn’t look at them. Mr. McDonough: The basis is the determination of a legal question rather than an appeal on a question of equalization. Mr. Boller : It is so as to Signal and the Long Beach Oil Development Company.” Assuming that the foregoing language is susceptible of the construction that no decision on the facts of the ease was made by the board and ignoring the circumstance that the remarks were made after the decision, it is also susceptible of the interpretation that reference was made only to the two eases not here involved. Moreover, it was merely an expression of one of the members of the board. To conclude that such vague and indefinite language was sufficient to impeach the integrity of the board to the point that due process of law was lacking is to disregard all presumptions and render every decision by a board of equalization subject to attack upon the slightest provocation. It is the declared statutory law of this state that public officers are presumed to have regularly- and properly performed their duties. (Code Civ. Proc., § 1963(15).) The most that may be said here is that the language used by the board members was susceptible of two *371 constructions, that is, the board had not made an adjudication on the facts or that it had ignored the facts and passed the matter on to the courts on a question of law. Under those circumstances the presumption is particularly applicable. In Chicago, B. & Q. By. Co. v. Babcock, 204 U.S. 585, 593 [ 27 S.Ct. 326 , 51 L.Ed. 636 ], the court in refusing to annul an order fixing the assessed valuation of property by a state board of equalization, stated:
“When we turn to the evidence there is equal ground for criticism. The members of the Board were called, including the Governor of the State, and submitted to an elaborate cross-examination with regard to the operation of their minds in valuing and taxing the roads. This was wholly improper. In this respect the case does not differ from that of a jury or an umpire, if we assmne that the members of the Board were not entitled to the possibly higher immunities of a judge. (Duke of Buccleuch v. Metropolitan Board of Works, L.R. 5 H.L. 418, 433.) Jurymen cannot be called, even on a motion for a new trial in the same case, to testify to the motives and influences that led to their verdict. Mattox v. United States, 146 U.S. 140 [ 13 S.Ct. 50 , 36 L.Ed. 917 ]. So, as to arbitrators. Duke of Buccleuch v. Metropolitan Board of Works, L.R. 5 H.L. 418, 457, 462. Similar reasoning was applied to a judge in Fayerweather v. Ritch, 195 U.S. 276, 306, 307 [ 25 S.Ct. 58 , 49 L.Ed. 193 ], A multitude of cases will be found collected in 4 Wigmore, Evidence, §§ 2348, 2349. All the often repeated reasons for the rule as to jurymen apply with redoubled force to the attempt, by exhibiting on cross-examination the confusion of the members’ minds, to attack in another proceeding the judgment of a lay tribunal, which is intended, so far as may be, to be final, notwithstanding mistakes of fact or law. See Coulter v. Louisville & Nashville R. R. Co., 196 U.S. 599, 610 [ 25 S.Ct. 342 , 49 L.Ed. 615 ]; Central Pacific R. R. Co. v. California, 162 U.S. 91, 107, 108, 117 [ 16 S.Ct. 766 , 40 L.Ed. 903 ]; S. C., 105 California, 576, 594; State Railroad Tax cases, 92 U.S. 575 [ 23 L.Ed. 663 ] ; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 133 Ind. 513, 542 [ 33 N.E. 421 , 18 A.L.R. 729 ]. In Fargo v. Hart, 193 U.S. 490, 496, 497 [ 24 S.Ct. 498 , 48 L.Ed. 761 ], there was no serious dispute as to what was the principle adopted. . . . Exactly what weighed in each mind, and even what elements they purported to consider in their debates, is little more than a guess. . . . Evidently also the members *372 or some of them used their own judgment and their own knowledge, of which they could give no very good account on cross-examination, but which they had a right to use, if honest, however inarticulate the premises. It would seem from the testimony, as might have been expected, that the valuations fixed were a compromise and were believed by some members to be too low, as they seemed to one too high. It is argued to us, on expert testimony, that they are too low. The result of the evidence manifests the fruitlessness of inquiries, which, as we have said, should not have leen gone into at all.” (Italics added.)
In fixing the valuation of the property in this case the trial court disregarded the rule that in the absence of statute a court has no authority to substitute its judgment for that of the board of equalization in a matter within the jurisdiction of the board. (See Federal Power Commission v. Pacific Power & L. Co., 307 U.S. 156 [ 59 S.Ct. 766 , 83 L.Ed. 1180 ] ; Central Kentucky Natural Gas Co. v. Railroad Commission, 290 U.S. 264 [ 54 S.Ct. 154 , 78 L.Ed. 307 ]; Reagan v. Farmers Loan & T. Co., 154 U.S. 362 [ 14 S.Ct. 1047 , 38 S.Ct. 1014 ].) The county tax assessor has exclusive jurisdiction to fix the value of property for assessment purposes, subject to the exclusive power of the board of supervisors sitting as a board of equalization to equalize the assessment. (Cal. Const., art. XIII, § 9; Rev. & Tax. Code, § 601 et seq., § 1601 et seq.; La Grange etc. Co. v. Carter, 142 Cal. 560, 565 [ 76 P. 241 ]; Los Angeles Gas & Elec. Co. v. County of Los Angeles, 162 Cal. 164 [ 121 P. 384 ].)
On the main issue, that is, whether the assessment was so out of line that the refusal to reduce it was equivalent to fraud, consideration should first be given to what the powers of the board of equalization are in this respect. We have heretofore seen that finality is accorded its determination. It cannot be doubted that a taxpayer must first resort to the board of equalization when he complains that an assessment is excessive. The only grounds, other than procedural due process, upon which the board’s decision may be questioned are actual fraud or that which is equivalent to fraud or constructive fraud. The later ground usually consists of a gross over-valuation resulting in a discrimination as between the taxpayer involved and others similarly situated. But all of those matters must be brought before the board of equaliza *373 tion, and if not presented, will not be considered by a reviewing court. In the instant ease, assuming that a determination by the board of equalization may be set aside where the valuation is so grossly excessive as compared to other property as to be equivalent of fraud, because the board has exceeded its statutory authority, or failed to perform its duty, still the court on review is confined to the evidence before the board and if there is a conflict therein the court is bound by the board’s decision. While a trial de novo, with some procedural limitations (Dare v. Board of Medical Examiners, 21 Cal.2d 790 [ 136 P.2d 304 ]), is appropriate in reviewing the action of a statewide agency, it is not available in the review of a local board exercising judicial functions. (Laisne v. State Board of Optometry, 19 Cal.2d 831 [ 123 P.2d 457 ].) The valuation is first made by the county assessor and the board of equalization sits as a reviewing board of his determination. (Los Angeles Gas & Elec. Co. v. County of Los Angeles, 162 Cal. 164 [ 121 P. 384 ].) Where the claim of the taxpayer is, as it is here, that the valuation was grossly out of line with that of similar properties, as distinguished from situations where the charge of fraud consists of matters outside the record, we have a matter squarely within the board’s jurisdiction and upon which the board should pass. The taxpayer should therefore present any evidence he has to the board, and only in the event that upon that evidence alone the only reasonable conclusion is that the board was motivated by actual or constructive fraud in arriving at the valuation, may the court disturb the board’s conclusion. That the taxpayer must present, his claim of over-valuation and discrimination to the board and that on review the court may examine only the evidence before the board is clearly indicated in Hammond L. Co. v. County of Los Angeles, 104 Cal.App. 235, 241 [ 285 P. 896 ], where it is said:
“In case a taxpayer feels aggrieved by reason of the assessor’s valuation, the law provides for a determination of the facts by a tribunal sitting as a county board of equalization. Wien the assessment is not wholly void, it is to this tribunal that the taxpayer must first apply for relief, and the decision of the board, made after due hearing and within the limits of reasonable discretion, is final and conclusive. (La Grange Co. v. Carter, 142 Cal. 560, 565 [ 76 P. 241 ]; California Domestic Water Co. v. County of Los Angeles, 10 Cal.App. 185, 191 [ 101 P. 547 ]; Pierce v. County of Santa Barbara, *374 40 Cal.App. 302, 304 [ 180 P. 641 ]; Globe G. & M. Co. v. County of Los Angeles, 62 Cal.App. 297, 299 [ 216 P. 631 ].)
"The decision of the board constitutes an independent and conclusive judgment which abrogates and takes the place of the judgment of the assessor, and even though there be mistake or error, the decision of the board will not be rejected upon review by the court, unless there is proof of actual fraud, or such arbitrary, unreasonable or grossly oppressive action, in wilful disregard of the law, as amounts to constructive fraud. . . .
. “Plaintiff followed the requisite procedure in applying to the board of equalization for reduction of the assessor’s valuation, but met with no success. No charge is made of any actual fraud or malicious abuse of power on the part of either the assessor or the board of equalization, but it is earnestly contended that the assessment is so grossly excessive and discriminatory as constructively to constitute fraud. The assessment not being wholly void, this action, though cast in the form of an action to recover a tax paid under protest, is properly a proceeding to review the decision of the board of equalization. The function of the trial court, therefore, was to determine whether a correct method of valuing the usufructuary interest was pursued, and whether there was substantial evidence before the board in justification of the assessment made.” (Italics added.) And again at page 246:
“In the proceeding before the board the burden of proof was on the plaintiff, and the decision of the board upon the evidence adduced cannot be collaterally assailed by new evidence on the point in a different tribunal. (Wild Goose Country Club v. County of Butte, 60 Cal.App. 339, 341 [ 212 P. 711 ].).
“What has just been said applies with equal force to the contention that there was such gross inequality and arbitrary discrimination as to invalidate the assessment. At the hearing before the board it was admitted by the assessor that leasehold interests in land held in private ownership were not separately assessed, a single assessment in such case being made of the freehold with all lesser interests.'’ (Italics added.)
In my opinion the judgments should be reversed with direction to the trial court to dismiss the actions.
Respondents ’ petition for a rehearing was denied December 28, 1944. Carter, J., and Schauer, J., voted for a rehearing.