(concurring.)
The peremptory writ of mandamus should be refused. However, I do not concur in the opinion of Judge PoffeN-barger, but will endeavor to give briefly my own reasons for the conclusion which I have reached. The case, as I regard it, does not call for a construction of the statute as to what shall be included under the designation “leasehold” on the *504personal property books. Ample reasons exist for refusing the writ without going into that question.
The first question arising is whether or not such case is made by the alternative writ as shows a clear legal right to mcmdamus. The” petitioner bases his right to the writ, not on the ground that the assessor has not acted, but because the valuation is so low that it amounts in reality to no assessment. There is no legal principle better settled and sustained by greater unanimity of authority than that mandamus will not lie to control the judicial or discretionary powers of an officer. It will lie to compel the exercise of such authority, but will not lie to control the exercise of it or compel a particular decision. Board of Supervisors v. Minturn, 4 W. Va. 300; Satterlee v. Strider, 31 W. Va. 781; State ex rel. County Court v. Herrald, 36 W. Va. 721; State ex rel. Miller v. Buchanan, 24 W. Va. 362. “ Mandamus will not lie to control the discretion of any court, board or officer, when the act is either judicial or guasi-judi-cial in its nature. The propriety of its action, in such case, however erroneous and improper, cannot be questioned or controlled by mandamus. ” Roberts v. Paul, Judge, 50 W. Va. 528; Eubank v. Boughton, 98 Va. 499.
The fundamental rule which underlies the entire jurisdiction by mcmdamus is that in all matters requiring the - exercise of the officer’s judgment, or resting in the sound discretion of a person, upon whom a duty is imposed by law, the writ will not lie to control that discretion. Officers will be set in motion by mcmdmius, but when matters are officially entrusted to their discretion, or judgment, courts will not interfere with the exercise of that discretion or judgment, nor attempt by mandamus to control or dictate the judgment to be given. An assessor valuing property acts quasi-judicially. He exercises his judgment and discretion as to the value of the property, and when he has once acted, his discretion in this regard cannot be reviewed by mamdamus. This principle is so elementary, and finds such universal support by the decisions of the various courts of the country that it is entirly useless to speak further with reference to it. But some of the authorities to support this position, in addition to the ones already cited, are: High, Extraordinary Legal Remedies, (3rd Ed.) section 842; Spelling on Injunc*505tions, (2nd Ed.) section 1384; People ex rel. Peabody v. Atty. Gen. 22 Barb. (N. Y.) 114; State ex rel. Ross v. Robinson, 1 Kan. 188; Shober v. Cochran, 53 Md. 544; Swan v. Gray, 44 Miss. 393; State ex rel. Lilienthal v. Deane, 23 Fla. 121; Territory ex rel. Gramburg v. Nowlin, 3 Dak. 349; American Casualty &c. Co. v. Fyler, 60 Conn. 448; State ex rel. Smith v. Board of Liquidators, 23 La. Ann. 388; State ex rel. Scully v. Ry. Co., 23 La. Ann. 332; Freeman v. Selectmen of New Haven, 34 Conn. 406; U. S. v. Commissioners, 5 Wall. (U. S.) 563; U. S. ex rel. Tucker v. Seaman, 17 How. (U. S.) 225.
It is claimed, however, that while the assessor has acted, yet that the valuation is so low as not to amount to an assessment, and that it is a fraud upon the State; and it is upon this theory that the petitioner endeavors to escape from the rule which prohibits the control of the judicial or discretionary powers of an officer by mandamus. Who is to determine whether or not the property is assessed too low? The assessor is a sworn officer, and in discharging his official duties he is acting under oath, and is presumed to have acted honestly and fairly, and the valuation fixed by him is presumed to be the true assessable value. There may be varied opinions as to the value of the property, and the assessment made may appear to some to be extremely low,yet the assessor is the person selected by law to discharge this duty, and he is clothed with discretionary powers. He it is who exercises his judgment as to the value of the property, and when he has done so, no court has the right to review his decision by compelling him to place a different value thereon. Where an assessor has acted in good faith, and is not guilty of fraud or collusion, no court has the power to compel him to place a valuation upon the property different from that at which he assessed it, no matter how low the assessment. To do so would be robbing him of that discretion which is vested in him by law. If the writ should be granted, what would be the second assessment? Will this Court think it amounts to no assessment, or will we think the property is assessed too high? And so, when the third or any future assessment is made, what will be our conclusion? Where will we draw the line? Shall we require the assessor to place such valuation upon it as in our opinion is the true assessable value? To do so would *506practically amount to converting' this Court into an assessment board. No longer would the assessor have the right to exercise his judgment and discretion. The necessary conclusion is that he must continue to add to his valuation until it reaches such sum as in the opinion of the Court is the fair cash value of the pi’operty. Suppose he places a clearly excessive valuation upon the property. Would this Court require him to reduce it? But it may be said that 'the owner has a right to appeal and ask for a reduction, where the assessment is excessive, and the State has no such right, where the valuation is too low. This cannot be urged as a reason why mandamus will lie. Such writ will not be permitted to usurp the place of a writ of error or appeal, and because the Legislature has made no provision for the State to appeal from a personal property assessment is no reason for controlling the judicial and discretionary powers of the assessor by mandamus. It may be that when an officer acts in such manner as that his acts amount to no assessment whatever, and the Court can say that the officer has made no assessment — has not placed a valuation upon the property, that mandamus will lie to compel him to act; but when he has once exercised his discretion, as is shown by the pleadings in this case, mandamus will not lie to compel him to change his decision. The alternative writ does not show that the officer has not acted, but it distinctly avers that he has done so. It appears that he has placed a material value upon the property. No charges of fraud, bad faith or collusion are made, except the general allegation that the low valuation is a fraud on the State. Nor does it sufficiently appear from the writ that the assessment amounts to no assessment.
Therefore, it is extremely doubtful whether the alternative writ, on its face, shows that the petitioner is entitled to the relief which he asks. This case may be disposed of upon another ground, however, without deciding this question. Admitting that the alternative writ states such a case as would entitle the petitioner to the peremptory writ, the assessor makes return by which all the material allegations of the writ are denied. He avers that he exercised his best judgment in endeavoring to place a true and correct valuation on the property. Upon this issqe the burden is upon the petitioner. The only material evidence furnished by the State *507to make her case is that the property, some time before the assessment, had sold for a sum greatly in excess of the valuation placed upon it by the assessor. In determining the valuation of the property, the price for which it sold may be considered as evidence, but certainly it is not conclusive proof. It cannot be said because a purchaser was willing to pay and did pay a certain sum for this property, that the assessor-should accept this as a criterion for his assessment. It is supposed to be in the opinion of the purchaser worth 'what he paid for it, but the assessor may not be willing to accept the judgment of the purchaser as to its value, and say under his oath that that is the true assessable value of the property. He has not said so, but acting under his oath he has said otherwise. The assessment made by him is presumed to be correct. I am unwilling to arbitrarily disregard the sworn statement of an officer in valuing property without better proof. If' these assessments are so low, and the assessor acted fraudulently, and in bad faith, it seems that the proof would be abundant to establish this fact. I do not regard the evidence of the sale as sufficient to overturn the assessment made by the assessor. And not only is this so, but the proof must be such as to show that the property was placed so low as to amount to no assessment, even according to the claim of the petitioner, and when this is urged as the basis for mandamus, it ought to be established by clear and full proof, to entitle the State to overthrow the assessment and brand the assessor with falsifying and making a colorable assessment. Therefore, granting the right to the writ upon the pleadings, yet when I come to the proofs I am forced to the conclusion that the case has not been established, and for this reason I would deny the writ.