The trial judge, following the decision of this court inFirst National Bank v. Board of Commrs., 40 Idaho 391,232 P. 905, incorporated in his *Page 545 judgment an assessment-roll of certain property of appellant and fixed the value of said property for taxation purposes. If this is error, and it seems to me it is, responsibility for it rests with this court rather than with the trial judge, for in that case the court said:
"Granting that the assessor and the county board of equalization are constitutional officers whose powers cannot be usurped, it does not follow that the district court in reviewing and reversing or modifying their acts under the provisions of this statute is usurping their powers."
Thereupon this court held, in effect, that a trial judge might, as in that case it did, assess bank stock. Furthermore, being dissatisfied with the result of the trial court's assessment, it proceeded, itself, to reassess the stock for purposes of taxation. It having held, in effect, courts may, on appeals from acts and orders of county boards of equalization, assess property, it is not easy to imagine what powers of assessors and boards of equalization this court had in mind as being free from invasion and usurpation by the judiciary.
The construction placed on the statute providing for appeals from acts and orders of boards of equalization by this court inFirst National Bank v. Board of Commrs., above cited, violates art. 2 of the Constitution of Idaho, which is as follows:
"The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted."
That language is too clear to invite or permit interpretation or construction. The assessment of property is a duty belonging exclusively to officers of the executive department of government, and that article of the Constitution, if obeyed, prohibits officers of the judicial department from performing that duty. *Page 546
In the light of this constitutional provision Idaho Code Annotated, sec. 30-1111, which provides that on appeal from boards of county commissioners "the matter must be heard anew and the act, order or proceeding so appealed from may be affirmed, reversed or modified," adopted by see. 61-1911 for the government of courts in appeals from acts, orders and proceedings of boards of equalization, must be so construed, when applied to appeals from the last-mentioned boards as to limit the power to modify assessments so that the modification shall not consist of making the assessments anew.
The power of the court is limited by the Constitution to interpreting the law fixing the duties of assessors and boards of equalization, and to directing them to make assessments and equalizations accordingly. The judgment and discretion of courts as to values, for purposes of taxation, cannot be substituted for the judgment and discretion of executive officers designated by the Constitution to assess property and to equalize the assessment thereof.