Petition for Rehearing.
(194 Pac. 428.)
On petition for rehearing. Petition Denied.
Mr. Walter H. Evans, District Attorney, and Mr. Samuel H. Pierce, Deputy District Attorney, for the petition.
Mr. Robert Krims and Mr. A. P. Dodson, contra.
JOHNS, J.In the former opinion and on its own motion the court dismissed this case for want of jurisdiction. In its petition for a rehearing, appellant county contends:
“That the jurisdiction of this court in the present case may be sustained on three grounds: (1) That the Supreme Court is vested, by the provisions of the Constitution, with authority to revise all final decisions of the Circuit Courts; (2) that the appellate powers generally conferred upon the Supreme Court by Section 548, L. O. L., are unaffected by any provision of the statute relating to appeals from the board of equalization; and (3) that this court, having entertained appeals of this character for a long period of time, is now justified in refusing to alter its practice.”
On the first point, it cites In re North Pacific Presbyterian Board of Missions v. Ah Won et al., 18 Or. 339 (22 Pac. 1105), and Mitchell v. Powers, 16 Or. 487, 492 (19 Pac. 647). Apparently, such decisions sustain appellant’s contention. In June, 1902, Section 1 of Article IV of the Constitution was amended by an initiative vote of the people. Kadderly v. Portland, 44 Or. 118 (74 Pac. 710, 75 Pac. 222), was decided after that amendment. In that case, on page 156 of 44 Or., on page 723 of 74 Pac., this court held:
“There is no common-law right of appeal. The right is wholly statutory unless expressly secured by the Constitution. The Constitution of Oregon, Article VII, Section 9, does not guarantee a right of appeal from every finding by an inferior court or tribunal. While this section confers upon the Circuit Courts appellate jurisdiction, it leaves the regulation of the mode of proceedings on an appeal and the limitation of the cases wherein an appeal may be taken to be provided. by statute. Whenever the legislature determines this question, and fixes the rule in any particular case, the question is thereby settled whether or *424not the right to prosecute an appeal exists. The supervisory control conferred upon the Circuit Courts is exercised in this case, as it is in the case of all other inferior tribunals and courts, by writs of review, mcmdamios, injunction, etc., and in fact it is this right of supervisory control which plaintiffs are now invoking in this case.”
Upon the second point, appellant cites Section 9 of Article VII, of the Constitution, which provides:
“All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other court, shall belong to the Circuit Courts; and they shall have appellate jurisdiction and supervisory control over the County Courts, and all other inferior courts, officers, and ■tribunals.”
As pointed out in the Kadderly case, such supervisory control is exercised “by writs of review, mandamus, injunction, etc. ” It also cites Section 548, Or. L., which defines a judgment or decree, and Section 549, Or. L., which provides that any party to a judgment or decree may appeal therefrom.
3. It must be conceded that a county assessor is not a court, and that in the lowering or raising of valuations upon property a county board of equalization is not acting or sitting as a court. The assessor simply places a valuation upon a person’s property for the purpose of taxation, and upon a proper petition the board either modifies or approves his action. Section 4299, Or. L., provides for an appeal from the action of the county board to the Circuit Court, and specifies the manner in which it shall be taken. In its decision on the appeal, the Circuit Court simply ascertains the value of property for assessment purposes. It may well be doubted whether the placing of *425such value is a judgment or decree, within the meaning of either Section 548 or 549.
4. Far greater power is conferred upon the board of control, now the state water board. It is authorized to make findings as to the date and amount of the appropriation of water, its beneficial use, and where it shall be used, which, in the absence of objections, become final. Section 5745, Or. L., of the act creating that board, provides:
“Appeals may be taken to the Supreme Court from such decrees in the same manner and with the same effect as in other cases in equity, except that notice of appeal must be served and filed within 60 days from the entry of the decree.”
A like provision is made in the Public Utilities Act, Section 6086, Or. L., which provides:
“Either party to said suit, within 60 days after the entry of the judgment or decree of the Circuit Court, m'ay appeal to the Supreme Court.”
As stated in the former opinion, Section 4299, Or. L., provides for an appeal by the property owner to the Circuit Court from the valuation of his property as fixed by the board of equalization; but that is a summary, special proceeding, and the act does not provide for an appeal by either party from the decision of the Circuit Court to this court. It provides, among other things, that, at the trial, “either the appellant or the county as appellee shall be entitled to the compulsory attendance of witnesses and the production of books and papers.” The word “appellant” applies, and is confined, to the property owner, and the word “appellee” is limited to the county and clearly implies that it does not have the right of appeal to this court.
It is true, as appellant’s counsel point out, that there have been three decisions of this court in this class of *426cases, and that each of them was decided on the merits: Northern Pacific Ry. Co. v. Clatsop County, 74 Or. 250 (145 Pac. 271); In re Weyerhaeuser Land Co., 85 Or. 434 (165 Pac. 1164); Douglas Land Co. v. Clatsop County, 87 Or. 462 (169 Pac. 790). In the Weyerhaeuser case the county was the appellant, and in the other two it was the property owner. The question of the right of appeal from the Circuit Court was not mentioned, discussed, or decided in any one of those cases, and is not stare decisis. After a careful consideration of appellant’s clear and concise petition, a rehearing is denied,
Appeal Dismissed. Rehearing Denied.