Appellant alleges, in substance, that he is the owner of some sixty thousand acres of land in the county of San Miguel and that the county assessor erroneously and mistakenly classified the grazing lands thereof under classes "C", "D", "E", "F" and "G", which classifications, when applied, were to be assessed under the uniform assessment program of the state tax commission, at $2, $1.75, $1.50, $1.25 and $1 per acre, respectively; and that they had no lands which according to their value, should have been classified under any of the aforementioned classes except possibly five thousand acres properly to be classified as "G" lands and that the remainder of his lands should have been assessed as class "H" at a value of $.75 per acre.
The complaint does not charge the taxing authorities with fraud nor does it set up any injustices or inequitable conduct which would invoke the aid of a court of equity once we determine that the courts do not act as assessors of property as we have many times held. And the error or mistake here relied upon is not the kind which may be corrected through the proceedings set out in sections 141-306, 141-307, N.M. Comp. Laws 1929. Appellant relies upon the fact that his lands have been overvalued for the purposes of taxation for the year of 1938 because erroneously classified as of a higher grade of grazing lands than the facts warrant. The relief sought is clearly for overvaluation and there are absent from the complaint any allegations which would take it from out the rule heretofore announced by this court. In re Blatt, 41 N.M. 269, 284, 67 P.2d 293, 110 A.L.R. 656; Morris v. State, by State Tax Comm., 41 N.M. 385, 69 P.2d 924; Scholle v. State Tax Comm., 42 N.M. 371, 78 P.2d 1116, and others.
Appellant had notice of the value fixed by the assessor, took statutory appeal to the county board of equalization, and, from a decision there affirming the value so fixed, he took his further appeal to the State Tax Commission where the assessment was likewise affirmed. He exhausted his remedy, under the circumstances, to have reduced the assessed value of his property. It is not *Page 109 enough that appellant show that his assessment as finally fixed is higher than other lands similarly situated. To be afforded relief the assessment must have been in an amount in excess of the actual value of the lands in question, or some other injustices of which the courts will take notice must be relied upon; and appellant does not so complain. See cases above cited.
We have said that assessments may not be reduced or cancelled by the court for mere overvaluation; and this is the ground appellant relies upon, though he mistakenly confuses the act of overvaluation with the act of erroneous classification, which is, after all, simply the fixing by the assessor of a value for the land, which, in the mind of the appellant, is too high.
Cases could arise where an assessment would be, because of the magnitude of the overvaluation, so inequitable as to amount to constructive fraud from which the courts would grant relief; but this is not such a case. It cannot be said that the amount of overvaluation here complained of (admitting it was properly pleaded), not having been sufficient to shock the conscience of the trial court, should, nevertheless, shock the conscience of this court. I do not believe the facts relied upon show an assessment so excessive as to be constructively fraudulent.
Moreover, it may also be said that the allegation that the assessments and classifications complained of are "erroneous", considered alone, is clearly a conclusion of the pleader. It is none the less so when joined to what follows, viz., "in that petitioner herein has no land which should have been classified as Class `C'," etc., since the addenda are themselves mere conclusions and the averment of two conclusions does not allege a single fact. Whether the plaintiff actually has any land which should have been classified in classes "C" to "F", inclusive, or not to exceed five thousand acres which should have been placed in Class "G", is determinable by unalleged facts. Hence, these allegations are not to be taken as admitted by the demurrer. Abreu v. State Tax Commission, 29 N.M. 554, 224 P. 479; Town of Farmington v. Mumma, 35 N.M. 114, 291 P. 290, and cases cited.
I am not unmindful of the case of In re Morrow's Will, 41 N.M. 723, 73 P.2d 1360, wherein the seemingly inconsistent decisions of this court on the effect of pleading conclusions are clarified and reconciled. Nevertheless, within the test laid down in that case, as the true one, it is my view that the conclusions here pleaded are not to be taken as admitted by the demurrer.
The most that can be gleaned from the complaint, fairly appraised, is a charge of overvaluation through erroneous classification. Even this charge rests on conclusions pleaded which, as already stated, are not to be taken as admitted by the demurrer. Abreu v. State Tax Commission, and In re Morrow's Will, both supra. In any event, a mere mistake of judgment on the part of taxing officials is not to be relieved against in equity. First State Bank v. State, 27 N.M. 78, 196 P. 743; Bond-Dillon Co. v. *Page 110 Matson, 27 N.M. 85, 196 P. 323; W.S. Land Cattle Co. v. McBridge, 28 N.M. 437, 214 P. 576; State v. Persons, 29 N.M. 654,226 P. 886; Morris v. State, 41 N.M. 385, 69 P.2d 924; In re Blatt, 41 N.M. 269, 67 P.2d 293, 110 A.L.R. 656; Scholle v. State Tax Commission, 42 N.M. 371, 78 P.2d 1116. Actual fraud is nowhere charged. Nor, as we have hereinbefore said, do we have the case of an assessment "so excessive as to be constructively fraudulent" within the quoted statement as employed in the Blatt case, since the only allegations relied upon to show excessive valuation are conclusions of the pleader, as we have just held.
I am not prepared to say that such discrepancy between value fixed and that which ought to have been fixed, even if properly pleaded, is so great as to require this court upon review to disturb the discretion in this respect exercised by the trial court. For the reasons stated, I dissent.
SADLER, J., concurs.