William Shear, Appellant, vs. County Commissioners of Columbia County, 14 Fla. 146

WESTCOTT, J., delivered the opinion of the court. Illegal assessments — that is, assessments wherein, independent of the exercise of a discretion as to value, there appears error in matter of law — are the assessments for which a party has a remedy by petition under

Section 4 of

Chapter 151 of the laws of Florida. This

section provides a remedy for an illegal assessment, without reference to the provisions of any particular act prescribing the mode cmd manner of making assessments. The 79th

Section of

Chapter 1713 of the Laws of Florida enacts that “ all acts and paits of acts heretofore passed relating to asssessment and taxation are hereby repealed.”

Chapter 1713 is

an act prescribing the mode and manner of making assessments. This general clause, repealing all laws relating to assessmenss in a law changing or regulating the method of assessment, cannot be held to repeal laws prescribing a remedy for illegal assessments under any and all laws. It might as well be contended that wherever a certiorari would lie to set aside an illegal assessment anterior to this law, it would not now lie to correct an illegal assessment under it. There cannot readily be imagined

an act erroneous in point of law, whether it be that of an executive, legislative, or judicial officer, for which there does not exist a remedy. On the other hand, the general rule is that for the erroneous exercise of either a judicial, legislative or executive discretion, there does not exist a remedy through the medium of judicial supervision and review. As to pure legislative and executive discretions, judicial officers cannot, as a matter of course, control them. An instance of the exercise of a pure legislative discretion is to be found in

an act which the Legislature deems advisable to adopt as a remedy for a conceived evil. This remedy, however inadequate to accomplish the result desired, cannot be disregarded by a judicial tribunal, unless in conflict with organic or constitutional provisions. This is also true of executive discretions. It is doubtful even whether the Legislature could authorize judicial tribunals to review the exercise of such discretions, legislative or executive. They are discretions belonging to different departments of the government.

As to judicial discretion, I conceive the rule to be that it is within the power of the Legislature to provide for the review of a discretion of this character, and that in the absence of such legislation, the exercise of a pure judicial discretion, by an inferior tribunal will not be reviewed. There are perhaps exceptions to this rule, but the case at bar is not one of them. In the case of Carter vs.

Bennett, 4 Fla., 356, the Supreme Court, speaking of reviewing orders of the court upon motions for new trials, based upon a consideration of the facts, remark that such practice is wholly unknown in England, and in the United States courts, and that the State courts are about equally divided thereon. In that case, this court refused to review the exercise of discretion by the Circuit Court in the matter of a motion for a new trial where the error alleged was as to conclusions of fact.

This .decision caused the act of 1853, (Chapter 521, Laws of Florida,) by which this court is authorized and required to review such exercise of discretion in the matter of granting new trials. Whether, in the absenee of legislation, this court or the Circuit Court can review a conclusion by the County Commissioners as to the value of land, in any form of proceeding, I think is doubtful. As to this particular case, I have no doubt. The statute invoked (Chapter 151, Laws of Florida,) provides a remedy by petition in case of an illegal assessment.

The judgment authorized in such a proceeding is that the assessment is not “ lawfully made.” The office of a petition under this law may be compared to that of a writ of error at common law, a certiorari in the nature of a writ of error, or to the effect of a motion in arrest of judgment, in an ordinary common law case. For instance, if the proceeding of the County Commissioners was the subject of a writ of error or a certiorari in the nature of a writ of error, (a question upon which I. express no opinion,) the return would be a record of the proceeding alleged to be illegal.

Upon that return, no question as to an erroneous exercise of a discretion vested by the law could be raised, and the court would be restricted to the consideration of questions of law arising upon that record. There are many cases of discretion vested in County Commissioners which are not subject to review. The petition in this case sets forth an illegal assessment, in this, that the value fixed is too high; that the “ full cash value ” is not the sum assessed. The issue made is as to this fact. Testimony is taken and the court determines that the value fixed by the County Commissioners is not excessive.

The case, as settled by the court, contains this conclusion of fact. I think the judge went beyond the authority conferred by the statute in attempting this review of the exercise of a discretion as to values vested in the County Commissioners. I think the purpose of the petition upon its face, and its legal effect, is to seek a review of conclusions of fact rather than to correct an illegality. I do not think the petition makes a case coming within the provisions of the statute, and for this reason I think the court should have refused to act upon it.

In speaking of the discretion exercised by the County Commissioners in fixing the value upon lands, the Supreme Court of Massachusetts remark: “ No judicial officer, in determining a matter legally submitted to his discretion, can ever be required to be governed by the dictates of any judgment but his own. "We are clearly of opinion that in refusing to abate the petitioner’s taxes, the commissioners acted judicially upon a subject of which they had final jurisdiction, and in which the exercise of their discretion cannot be revised by any other tribunal.

If the commissioners erred in their proceedings in matters of law, the petitioner may have a writ of certiorari. If this will give him no adequate redress of any grievance which he may have sustained, it is the fault of the law and not of the court.” 19 Pick., 299. To the same'effect are the decisions of all the State courts that we have been able to examine. The case is remanded, with directions to dismiss the petition.