Plaintiffs challenge the jurisdiction of the board to assess the property in question on the ground it is non-operating property. This court held in Lansdon v. State Board ofCanvassers, 18 Idaho 596, 111 P. 133, that:
"A 'writ of review' brings up the record of the tribunal, board, or body whose acts are to be examined, and is issued for the purpose of reviewing the law applicable to the case, instead of examining the facts of the case, except in so far as an examination of the facts is necessary in the determination of the single question of jurisdiction. The purpose of the review is to determine primarily the law applicable to the case, rather than facts of the case."
Section 61-601, I. C. A., provides:
"The operating property of all railroads, . . . . wholly or partly within this state, shall be assessed for taxation for state . . . . purposes, exclusively by the state board of equalization."
In Ada County et al. v. Bottolfsen, Governor, et al., ante, p. 64, 97 P.2d 599, 601, we held that:
"Under the provisions of that section the board has the power to and must determine whether property is, or is not, used in the operation of a railroad and whether property is, or is not, within the definition of Section 61-113, I. C. A., necessary to the maintenance and operation of a railroad in the conduct of its business. If the Board determines the property is 'operating property' within the definition of the statute, then, and in that case and in that case only, it has power to assess it; otherwise, jurisdiction to assess is vested under the provisions of Section 61-603, I. C. A., in the assessor of the county in which the property is located. In other words, the statute, Section 61-601, supra, vests original jurisdiction in and makes it the duty of the Board to determine whether property is or is not 'operating property.' " (Italics mine.)
In support of its jurisdiction to assess the board pleaded its record as follows: *Page 379
"ANNUAL MEETING STATE BOARD OF EQUALIZATION 1939 FIRST DAY
Boise, Idaho August 14, 1939
The annual meeting of the State Board of Equalization convened in a regular session in the Governor's office at 10.00 o'clock A. M. on the above named date. All members and the Secretary were present as follows:
Governor C.A. Bottolfsen, Chairman T.W. Taylor, Attorney General Mrs. Myrtle Enking, Treasurer George Curtis, Secretary of State Calvin E. Wright, Auditor Byron Defenbach, Secretary.
. . . .
A petition prepared by Willis C. Moffatt, attorney for certain taxpayers and filed on their behalf, was presented to the Board. The petition involved the question of taxation on certain lands which the Oregon Short Line Railroad Co. desires to retain utility assessment; the petitioners asking that part of said property be assessed locally. No discussion and no action taken.
. . . .
No further business to be considered, the Governor asked the meeting be recessed until 10.00 o'clock A. M. Tuesday, August 15th. There being no objection, the session adjourned by unanimous consent until time and date suggested by Governor Bottolfsen.
ATTEST: (signed) BYRON DEFENBACH Secretary
APPROVED: (signed) C.A. BOTTOLFSEN Chairman
. . . .
STATE BOARD OF EQUALIZATION. REGULAR SESSION 1939 Fourth day August 17, 1939
The meeting was called to order in the Chamber of the House of Representatives at 10.00 o'clock A. M., with Governor Bottolfsen presiding. *Page 380
. . . .
Mr. Maurice H. Greene and Mr. Willis C. Moffatt, attorneys, appeared for Ada County and certain Boise taxpayers, asking a change in classification of real property and buildings constructed on Citizen's right-of-way. Counsel for the Union Pacific answered the complaint. The Governor stated that the Board would take the matter under advisement and render an opinion later.
. . . .
There being no further business, the meeting adjourned until 10.00 o'clock Friday morning, August 18th.
ATTEST: (signed) BYRON DEFENBACH Secretary
APPROVED: (signed) C.A. BOTTOLFSEN Chairman
. . . .
STATE BOARD OF EQUALIZATION, REGULAR SESSION 1939 FRIDAY
Eleventh Day August 25, 1939
The Board met in executive session in the Governor's office at 9:30 A. M., with all members present. The Board took into consideration the matter of the various railroad companies, fixing their final assessment for the year 1939 as follows:
Oregon Short Line Railroad Company and Ore- gon Washington R. R. and N. Co..........$51,774,222.00
. . . .
In each case motion was regularly made and seconded, the question put by the Chairman and carried unanimously.
The Board spent the rest of the day in discussion of the various valuations but made no final decisions. At 4:30 P. M., recess was taken until Saturday morning, August 26th, at 9:30 in the Governor's office.
ATTEST: (signed) BYRON DEFENBACH Secretary
APPROVED: (signed) C.A. BOTTOLFSEN Chairman."
While it was alleged in the application (Ada County v.Bottolfsen, supra) and therefore recited in the opinion that *Page 381 the board assessed the several tracts of land described in such application, its record shows the board made only a final assessment in the sum of $51,744,222, but upon what particular property does not appear. Even though Ada County had not filed a petition with the board August 14, 1939, requesting it to refrain from assessing these tracts, the board would have levied the final assessment against the Short Line, just as it did against the property of other railroads not involved in this controversy. Bearing that in mind and also that the record shows the chairman "stated that the Board would take the matter [assessing the property described in the Ada County petition filed August 14, 1939] under advisement and render an opinion later," it is evident the board intended and fully understood it was necessary to "render an opinion" as to whether the property in question was or was not operating property of the Short Line, but overlooked the matter of determining that question. But whether the board overlooked determining the question or concluded it was unnecessary, the above-quoted record clearly shows it did not determine the property in question was operating property, nor did it determine such property was necessary to the maintenance and operation of the Oregon Short Line Railroad Company in the conduct of its business. Not having done that, the entry of a final assessment against the property of the Short Line was premature in so far as it could be said to affect the property in question here. Substantially the same situation arose in Stearns v. Graves etal., ante, p. 232, 99 P.2d 955. In that case an action excontractu was united with an action ex delicto. A demurrer was interposed to the complaint upon that ground. The trial court, without passing upon the demurrer, rendered and entered final judgment of dismissal of the action on the contract. On appeal this court held the rendition and entry of the judgment of dismissal was premature in that the court had failed to first rule on the demurrer.
This court held in Orr v. State Board of Equalization, 3 Idaho 190,28 P. 416, that:
"The State Board of Equalization, in exercising the functions conferred upon it by law, is exercising judicial functions." *Page 382 (See, also, North West Light etc. Co. v. Alexander, 29 Idaho 557, 566, 160 P. 1106).
The board, sitting as a constitutional tax-assessing tribunal, has exclusive original jurisdiction to determine whether property is operating property and necessary to the maintenance and operation of a railroad. In other words, the board has exclusive original jurisdiction to determine any and all controversies between, for instance, a railroad and a county (as in the case at bar), as to whether property is non-operating property and therefore assessable by a county, or operating property, and, consequently, not assessable by a county. In the controversy before the board, brought here for review, the question was squarely presented as to whether the property described in Ada County's petition was or was not operating property of the Short Line. In that controversy the board was sitting as a constitutional tax-assessing tribunal. As such tribunal it was its duty to decide the controversy.
As we held in Ada County v. Bottolfsen, supra, "if the Board determines the property is 'operating property' within the definition of the statute, then, and in that case and in that case only, it has power to assess it." In other words, where, as in the instant case, a county claims the right to assess railroad property on the ground it is non-operating property and that the state board of equalization is therefore without jurisdiction to assess it, the board must first determine the character of the property. If it determines the property is operating property, then it may assess; otherwise not.
Of course, this constitutional tax-assessing tribunal (state board of equalization) is not required to render its decision with all the precision and detail of a court of equity (for instance, make findings of fact and conclusions of law). In fact, it is not required to render judgment at all, as courts do. It may employ any method of determining a tax controversy it chooses, — for example, an order, or an appropriate resolution — the method usually employed by boards. No order or resolution having been entered by the board determining the controversy between the Short Line and Ada County, it follows this matter should be remanded with directions to the board to do so, in that this court cannot, *Page 383 in the first instance, decide the controversy — the statute vests original jurisdiction in and makes it the duty of the board to first determine whether property is, or is not, operating property.