ments for selling liquor to minors had been found against him, he still retained as his bar tender the man who is proved to have freely and without inquiry sold liquor to minors. The protection of minors against the terrible evils which ensue from contracting in early life the habit of indulgence in strong drink, and the happiness of parents, as well as the good of society in general, require that this dangerous traffic in ardent spirits should be carefully guarded, and not placed or suffered to remain in the hands of men who will disregard the law, or allow it to be disregarded by their employés, or knowingly retain. in their service as bar tenders persons who violate the law. Upon a consideration of the whole case, the court is of opinion that the corporation court did not err in revoking the license of the plaintiff in error, and that its judgment should be affirmed." DODD et al. v. FRANCISCO et al. (Supreme Court of New Jersey, 1902. 68 N. J. Law, 490, 53 Atl. 219.) On certiorari. DIXON, J. This certiorari brings before the court the proceedings of the state board of health respecting an application for permission. to locate a cemetery in the town of Bloomfield, Essex county. The application was first presented on December 24, 1900, to the council of the town, and being approved by that body was then presented to the local board of health, which on March 5, 1901, refused to give its consent. Thereupon the applicants appealed to the state board of health, and on June 28, 1901, that board passed a resolution by which the action of the local authorities was reversed and the desired permission was granted. This resolution was set aside by this court at the term of February, 1902, because the parties interested had not been heard before the board itself; the only hearing given to them having been had before a committee of the board. Afterwards, on April 22, 1902, the counsel of the respective parties were notified that on May 8, 1902, at 2 o'clock p. m., in the state house, the state board of health would meet to consider the application, and at that time and place counsel representing the applicants and the opponents appeared and were fully heard by the board, as were also all individuals who desired to express their views. The result of the board's deliberation was another resolution, passed May 22, 1902, to the same effect as that of June 28, 1901, which resolution is now before us for review. 7 See, also, Traer v. State Board of Medical Examiners, 106 Iowa, 559, 76 N. W. 833 (1898). But see People ex rel. Silkens v. McGlyn, 62 Hun, 237, 16 N. Y. Supp. 736 (1891), no proof other than character and standing of complainants. The statute under which these proceedings were taken is the sixth section of a supplement to the cemetery act, approved March 25, 1885. Gen. St. p. 354. * * * The third, fifth and sixth reasons assigned for annulling the resolution present two questions-First, whether the board was bound to examine persons under oath touching the matters stated and controverted at the hearing before it; and, second, whether the board had a right to consider a report made to it by its committee while the first appeal was pending. In the opinion delivered by Mr. Justice Garretson in the case above cited it is said: "The board of health was acting judicially upon the application before it, and all parties were entitled to be heard by the board in a legally organized meeting of the board." This expression is referred to by counsel for the prosecutors as indicating that it was the duty of the board to examine witnesses as to disputed questions of fact. But we do not so understand it. Its import is merely that the functions of the board were such as required the exercise of the judgment of the board itself, and hence that parties interested had a right to present and discuss before the board the matters on which its judgment should rest. Nor do we find · either in the statute relating to cemeteries or in that establishing the state board of health (Gen. St. p. 1634), any indication that the board was to proceed as courts do in suits inter partes. There is nothing suggestive of a power to summon witnesses, to administer oaths or to compel the giving of evidence, either oral or written. Moreover, the matters to be considered by the board respecting the propriety of locating a new cemetery are of so general and public a nature that they can be decided more intelligently by observation and discussion than by testimony. In this respect the board resembles boards of assessment, whose proceedings involve the exercise of judicial functions (Peckham v. Newark, 43 N. J. Law, 576), but whose judgment is to be founded on facts obvious to their senses or ascertained by inquiry and examination, who, although not authorized to call witnesses and examine them upon oath, should, as do surveyors and freeholders in road cases, visit the premises in controversy and avail themselves of every accessible means of information likely to aid them in reaching a proper determination. State v. Jersey City, 24 N. J. Law, 662, 665. We therefore conclude that the board was not bound to receive evidence under oath. What has been already said indicates also that in our judgment it was not erroneous for the board to consider the report of its former committee regarding the matter pending before the board. The report was a means of information accessible not only to those who were members of the board when the report was presented, but also to new members. As a part of the discussion proper in the deliberations of such bodies, the report was at least the statement of persons * * 8 who had made special investigation and presumably formed impar- SECTION 25.-IN CONNECTION WITH REVENUE TOMLINSON v. BOARD OF EQUALIZATION. (Supreme Court of Tennessee, 1889. 88 Tenn. 1, 12 S. W. 414, 6 L. R. A. 207.) LURTON, J.* * The complaint made in the petition is that it [the board of equalization] refused to hear witnesses offered by complainant in support of his complaint as to an excessive assessment as to valuation. In this, did they "exceed their jurisdiction," or "act illegally"? To determine this, we must not only consider the language of the act defining their duties, but consider the general nature and scope of the powers conferred upon them. They are styled a "board of equalization." They are charged, primarily, with the duty of "examining" and "equalizing" assessments. This duty they are expected, most manifestly, to perform, not upon testimony, but upon a "comparing" the assessments in one district or neighborhood with another-one piece of property with the assessment upon another of equal value. Clearly, this is to be done upon their own knowledge of the comparative valuations, and the end to be reached is an equalization whereby discriminations in favor of one, or against another, are to be corrected. In addition to this, they are to correct mistakes made by the assessor, and eliminate from the list property exempt under the law from as sessment. Finally, they are empowered to hear and adjust complaints from any party feeling aggrieved on account of excessive taxation, where in their judgment justice demands it. How are they to "hear and adjust" such complaints? Petitioner's contention is that they must hear witnesses produced by him; that he has a right to examine such witnesses, and cross-examine such as are produced against him. In other words, that the act contemplates a regular trial, according to the ordinary course of law, and the decision according to the weight of the proof. We have seen that, with reference to the primary duty of the board-that of equalizing assessments-the act contemplates no 8 The rest of the opinion is omitted. See ante, p. 76. Only a portion of the opinion of Lurton, J., is printed. issue of fact or hearing of evidence, but that the equalization is to be brought about by a comparison of assessments and the knowledge they have of the relative values of different pieces of property. Can the law contemplate any very different method of correcting an excessive assessment? The knowledge of relative values-of comparative values-which they have as citizens and freeholders, and which they obtain from an examination and comparison of the assessment lists, will, in the vast majority of cases, enable them to act justly upon the complaint. But cases may occur where these means are, in their judgment, unsatisfactory. In such case, the act declares that the "board shall have the right to summon before them witnesses, who shall be disinterested freeholders; and the sworn testimony of three such witnesses concerning same will be sufficient evidence upon which such board may act." The "board shall have the right" to summon before them disinterested freeholders is the language of the act. Does this power conferred make it their duty to either have witnesses brought by the party making complaint, or require them in all cases to summon witnesses upon such complaint being made; or is the hearing of witnesses a matter wholly in their discretion? We think the statute means no more than it plainly discloses. To hold that it was the duty to permit the examination of witnesses offered by a complainant would imply a duty to the state and county to hear and examine witnesses to sustain the assessment. All this would imply a trial, and a judgment upon weight of proof. The question of valuation is altogether a matter of opinion. Before questions of opinion the greatest diversity may be expected. The sessions of this board terminate in two weeks; and at the end of that time they are required to return the assessment lists, and their corrections, to the clerk of the county court. In populous counties the assessments reach into the thousands. That each taxpayer should have the right to come with his witnesses, and have them heard, and be heard by counsel, would result in such delay and embarrassment as to amount to a great public peril with regard to the assessment of the public revenues. No legislative body could have seriously contemplated such a tribunal to determine a mere question of an excessive valuation for purpose of assessment. Occasional instances of excessive assessments may occur; but they had better be borne than that such a court should be created to settle them. The taxpayer in the first instance may make his representations to the assessor. If he overassess him, he may carry the matter to a board of disinterested freeholders, acting under oath. If they upon their own knowledge, agree with the assessor, and, upon a "comparison," find no case for a reduction of or purpose of equalization, the chances are that the assessment is not far wrong. If he cannot induce the board to think that it is a case where they ought, for their own enlightenment, exercise the power they have to summon witnesses of their own selection, he must submit. The board was not "exceeding its jurisdiction," or "acting illegally," in refusing to have the witnesses offered by petitioner; and it had a right to refuse to summon witnesses of its own selection, if it deemed that justice did not demand evidence from witnesses. * * 10 * 'AUFFMORDT v. HEDDEN. (Supreme Court of United States, 1890. 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674.) In Error to the Circuit Court of the United States for the Southern District of New York. Action to recover an alleged excess of duties, paid under protest. BLATCHFORD, J.11 * * * Section 2930 of the Revised Statutes, under which the principal question in the case arose, was as follows: "If the importer, owner, agent, or consignee of any merchandise shall be dissatisfied with the appraisement, and shall have complied with the foregoing requisitions, he may forthwith give notice to the collector, in writing, of such dissatisfaction, on the receipt of which the collector shall select one discreet and experienced merchant to be associated with one of the general appraisers wherever practicable, or two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question, to examine and appraise the same, 10 Compare Ekiu v. United States, 142 U. S. 651, 663, 12 Sup. Ct. 336, 35 L. Ed. 1146 (1892). Under statutory provisions, assessing board may be required to hear witnesses. People ex rel. Bronx Gas & Electric Co. v. Feitner, 43 App. Div. 198. 59 N. Y. Supp. 327 (1899); People ex rel. Manhattan Co. v. Barker, 152 N. Y. 417, 46 N. E. 875 (1897). As to the former practice of accepting the tax-payer's oath as conclusive upon the amount of his assessment, see People ex rel. Buffalo, etc., Co. v. Barker, 48 N. Y. 70, 74-77; Inhabitants of Newburyport v. County Commissioners, 12 Metc. (Mass.) 211. The same practice is commonly followed with regard to the qualifications of electors, so far as the action of election or registration officers is concerned. "Practically, the law leaves it to the conscience of the person offering to vote to decide whether he can or will do so when his right is challenged. The inspectors cannot do more than to make use of the machinery provided by the law to test the voter's legal qualifications, and they cannot decide upon the truth or falsity of the answers to their questions. The law provides for the punishment of a person who falsely personates a registered voter; and the proposed elector, who is challenged for that cause, if he persists in his attempt to vote, may accomplish his purpose, but at the peril consequent upon false swearing and of false personation. If, with all the safeguards with which popular elections are legally and naturally surrounded, frauds are perpetrated, the tribunals are open, and laws and a system of procedure exist for the punishment of the offenders, and for the rectification of consequent errors, in behalf of an individual whose legal rights are affected; and legislative bodies are judges as to the qualifications, returns, and elections of their members." People ex rel. Stapleton v. Bell, 119 N. Y. 175, 23 N. E. 533 (1890); Gillespie v. Palmer, 20 Wis. 544 (1866), post, p. 302. 11 Only a portion of the opinion of Blatchford, J., is printed. |