(Dissenting). — I do not believe the statute authorizes or permits an appeal from the superior court to this court in this kind of cases, and therefore must dissent. The general statute on appeals to this court (paragraph 1227, subd. 1, Civil Code), is broad enough to cover a special proceeding in tax matters, such as this one, if it be held — as I think it should be — that it was “commenced in a superior court.” While the tax statute (paragraph 4887, Civil Code) describes the proceeding for a review of the order of the board of equalization as an appeal from the board to the superior court, it is not in fact an appeal, but an original proceeding. Rowand v. Little Vermilion Special Drainage District, 254 Ill. 543, 98 N. E. 969. The case of Mohave County v. Stephens, 17 Ariz. 165, 149 Pac. 670, restricted too much the right of appeal as applied to special proceedings generally, and should be modified or overruled when a proper case for it arises.
But the judgment in the Stephens case, denying the county the right of appeal from the superior court on the ground that the tax statute by its very terms prohibited it, is correct. Paragraph 4885, Civil Code, makes the decision of the county board of equalization as to the value of any property final so far as the county is concerned, and only permits the taxpayer to question it as provided in paragraph 4887. This last paragraph grants the right to any taxpayer dissatisfied with the amount of his assessment, upon conditions therein named, to take it into the superior court for review, but it is limited to the taxpayer. There is no provision anywhere, either in direct terms or by implication, allowing the county or the state to appeal, — I suppose upon the theory that the agencies selected by the legislature to fix the valuation of property will fully and amply protect the interests of the government by fixing Values, as the law requires, at its full cash value. Somewhere *514along the line these taxing agents selected by the legislature must finally determine the question of valuation. The one designated by the legislature in this state is the superior court, when in a proper case a dissatisfied taxpayer is permitted to invoke the ajd of that court. The only question that the superior court may review or examine is as to whether the valuation fixed by the county board of equalization is too high or too low. As Judge COOLEY said in Auditor v. Pullman Palace Car Co., 34 Mich. 59, the superior court is “an appellate tax tribunal, and nothing more. Its conclusions would not be a judgment, but only an assessment.” Before this court should convert itself into an appellate tax tribunal, granting, for the sake of argument, that the legislature could so constitute it, it ought to be required to say so by direct and plain language. If the determination of the superior court were properly before us, we would not and could not pass upon the question as to whether it had assessed the taxpayer’s property for too little or too much. The legislature has appointed its agents for that purpose, and the supreme court is not one of them.
Paragraph 4887 was incorporated in the Laws of Arizona for the first time in 1901, as paragraph 3875, Revised Statutes of 1901. The territorial legislature evidently construed it as not permitting an appeal to' anyone except the dissatisfied taxpayer, for in 1907 it passed an act “ to provide for the taxation of mines and mining claims and the ores or mineral products from the same,” and therein amended paragraph 3875, so that “in the event of the territory or the owner of any such productive mine or mining claims being dissatisfied with the valuation fixed by the assessor or by any county board of equalization, such owner or the territory . . . shall have a right to appeal from the valuation as fixed- to the district court.” Section 12, c. 20, Laws of 1907. In the revision of the Laws of 1913 this provision allowing appeals by the state was left’ out, and paragraph 3875 was carried forward in the revision, word for word, as paragraph 4887. The meaning of such action or omission is too plain to require comment. In 1913 a special mine tax law was passed (chapter 12, Title 49, Civil Code),- the general provisions of which as to the right of appeal are the same as those contained in paragraph 4887, and therein it was provided that the state of Arizona shall have the same right of appeal from the action of the state tax *515commission or county assessor fixing the valuation of mines or mining claims as a taxpayer. Paragraph 4993, Civil Code, The life of this law was limited to the years 1914 and 1915, but it indicates that in the legislative mind no appeal could be had by the taxing power, state or county, under paragraph 4887.
It must be admitted that the taxing power of the state is vested .in the legislature alone. The assessment of taxes is not a judicial act; it partakes of no element of a judicial character; it is a legislative act; it requires the exercise of legislative power. The legislature may appoint its agents to assess, equalize, and levy 'taxes, and whether the agent be an assessor, a board of equalization, or a superior court, in each case it exercises administrative or legislative functions, and not judicial functions. If a hearing be granted a taxpayer before any one of these agents, the law may stop there, and the taxpayer may not be heard thereafter to complain of an excessive valuation. That this is so is evidenced by the holding in the main opinion that the decision of the state tax commission in fixing valuations is final. The legislature could have made the decision of the assessor or the county board of equalization final if it had so chosen, and it did, in my opinion, make the decision of the superior court on the question of valuation final in those cases appealable to that court from the county board of equalization.
In Mayor of Baltimore v. Bonaparte, 93 Md. 156, 48 Atl. 735, it was held, notwithstanding the statute specifically allowed an appeal to the court of appeals, none could be entertained when the only question involved was the valuation of property for taxation purposes, as such was not a judicial but an administrative duty.
“As a general rule, statutes upon the subject of appeals do not embrace proceedings by courts, boards, or officers under special acts when the latter do not include a provision authorizing an appeal.” 3 O. J. 225, §42.
The tax statute, paragraph 4887, does not authorize an appeal by the county or state. Neither is permitted to take into the superior court the question of valuation of property. They cannot initiate such a proceeding, and certainly it was never thought they could prosecute an appeal from a decision of the superior court fixing valuations.
*516I think this appeal should he dismissed for want of jurisdiction. The state, however, is not without a remedy, if it be the law does not provide for an appeal from an order of the state tax commission fixing valuation of property for taxation — and in that I think the majority opinion is correct-then the superior court possessed no jurisdiction of the subject matter, and the judgment entered wa¿ null and void. In that event, the state’s remedy was by certiorari and not by appeal. 2 Cooley on Taxation, p. 1400; 11 C. J. 134, § 96.