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sonal or mixed, the death of either party between the verdict and the judgment should not thereafter be alleged for error, provided the judgment be entered within two terms after the verdict. But that does not apply to the present case, which comes within the principle that every personal action dies with the person unless some statute revives it.

Revivor, as Cotton, L. J., has explained, goes on the principle that there is a continuing interest which devolves upon some one, but here the object of the suit is gone. The Legislature might have authorized the continuance of divorce proceedings for some collateral purposes, though their main object is gone, but it has not done so. The case appears to be clear on principle, and if authority were wanted, Grant v. Grant, 2 Sw. & T. 522, is enough to show that the appeal must fail.

FRY, L. J. I am of the same opinion, and feel no doubt on the case. The only decree that could be asked for would be that the marriage should be dissolved, or that it should be deemed to have been dissolved, from the date of the decree nisi. Neither alternative is possible. As regards the first, no power can dissolve a marriage which has been already dissolved by the act of God. As regards the second, the court cannot pronounce a decree declaring that the marriage was dissolved at an earlier date, because the statute gives it no such power, but only authorizes it to pronounce a decree "declaring such marriage to be dissolved."

For these short reasons, I agree that the appeal must be dismissed with costs. Appeal dismissed.

COUNTY-LIABILITY FOR BOARD AND LODGING OF PRISONERS OUT OF JAIL.

KANSAS SUPREME COURT, JULY 9, 1886.

essary to his recovery; that thereupon the sheriff and his deputies, with the knowledge and consent of the defendants, removed the wounded prisoner, who was then expected to live only a short time, to the residence of the plaintiff which was about one-fourth of a mile from the place where the prisoner was shot, aud that the sheriff then requested the plaintiff to give the prisoner such treatment, nursing and medicines as his condition required.

It was alleged that the plaintiff, at the instance and request of the sheriff, took charge of and attended upon and nursed the prisoner from the 25th day of November, 1883, till the 25th day of February, 1884, during which time he furnished and provided fuel for the benefit of the prisoner, and beyond what was necessary for the personal use of the plaintiff, of the value of $12; and that he expended for medicines and remedies for the prisoner the sum of $118.65, which it is alleged were necessary, and were prescribed by the attending physician; and that he attended and waited upon the prisoner for the period of ninety days, and that his services were necessary and reasonably worth $3 per day, and of the aggregate value of $270; after which time the sheriff again took charge of the pris oner and conveyed him to the county jail. He alleges that the articles furnished, money expended, and the services rendered were necessary for the recovery of the prisoner, and were furnished, expended and rendered at the request of the sheriff, and with the knowledge, consent and approval of the defendants; that in 1884 Cyrenius B. Hendricks was convicted of murder in the first degree, and sentenced to suffer death, and that he is now in the penitentiary awaiting the execution of that sentence; that Cyrenius B. Hendricks has no estate, property or means of any kind to pay the plaintiff's claim, and that he will lose the same unless paid by Chautauqua county; that on the 5th day of January, 1885, the plaintiff duly presented his claim to the county commissioners for allowance, which was rejected, and he avers that it is now due and unpaid. The defendaut demurred to the petition upon the

HENDRICKS V. BD. OF CO. COM'RS OF CHAUTAUQUA ground that it did not state facts sufficient to consti

COUNTY.*

The duty of keeping the county jail, and supplying the prisoners committed thereto with board and lodging, devolves upon the sheriff, and to him alone is the county liable for the same.

Under section 331 of the Criminal Code, the board of county commissioners may allow a moderate compensation for medical services, fuel, bedding and menial attendance furnished for prisoners committed to the county jail, which shall be paid out of the county treasury; but the allowance of such claims is wholly discretionary with the county board, and the liability of the county for the same can only arise upon an order made by the county commissioners wher duly convened and acting as a board. RROR from Chautauqua county.

ERROR

McBrian & Pile, for plaintiff in error.

B. S. Henderson, for defendant in error. JOHNSTON, J. F. E. Hendricks brought this action against the board of county-commissioners of Chautauqua county, and in his petition alleged substantially that on November 25, 1883, the sheriff of Chautauqua county and his deputies arrested one Cyrenius B. Hendricks, and that while they had him in custody at a point fifteen miles from Sedan, where the county jail was located, he was shot and so severely wounded that he could not be removed or taken to the county jail, and that his condition resulting from the wound was such that it was impossible for him to receive the treatment and attention in the county jail actually neo*11 Pacific Reporter, 450.

tute a cause of action against it. The demurrer was sustained by the court, and the plaintiff is prosecuting this petition in error to reverse that ruling.

The facts stated in the petition fail to show a liability of the county of Chautauqua in favor of the plaintiff. The statute provides that jails shall be established and kept in every county, at the expense of the county, for the safe-keeping of the prisoners lawfully committed. The sheriff of the county is required to keep the jail, and is responsible for the manner in which it is kept, and he is required to supply the prisoners with proper food and drink at the expense of the county. Sections 1, 3, 10, chapter 53, Comp. Laws,

1879.

In another chapter the liability of the county for the boarding and lodging of prisoners is fixed and limited. The sheriff is allowed forty cents per day, exclusive of fuel, lights, furniture and bedding, where a jail is provided, and sixty cents per day where no jail in provided. Sess. Laws 1881, ch. 701, § 1.

The county commissioners are not compelled to allow or pay more than the fees above named for every thing included within the terms "boarding and lodging," nor is the county liable to any other officer or person for the same than the sheriff. The duty and responsibility of keeping the jail, and supplying and caring for the prisoners, is devolved by law upon the sheriff. The care and safe-keeping of the prisoners is committed to him, and in regard to their board and lodging, the board of county commissioners deals only with him. The only statute authorizing the payment of compensation by the county board provides that it shall be paid to the sheriff, and to him alone is the

county liable for supplying board and lodging for the prisoners. Atchison Co. v. Tomlinson, 9 Kans. 167.

It appears that the prisoner was held and cared for by the plaintiff at the request of the sheriff, outside of the jail, although there was a jail at the county seat. Where the jail is overcrowded or insufficient, or where for some other good reason the prisoner cannot be properly kept and supplied in the jail, as was the case here, he may be temporarily held and supplied outside of the jail. In such a case the county would doubtless be liable for the statutory compensation. Where the jail is insufficient for the safe-keeping of prisoners, the sheriff may employ such guards as are actually necessary, and for the service of such guards "the board of county commissioners shall allow the sheriff reasonable compensation, to be paid out of the county treasury." Laws 1881, ch. 107, § 1.

The liability of the county for the services of these guards, or for the temporary restraint and maintenance of the prisoners outside of the jail, is to the sheriff, and therefore while the sheriff has a right to claim compensation for holding and supplying the prisoner outside of the jail, the plaintiff has not.

The items of the plaintiff's account, and for which he sues, do not fall within the service and supplies of which mention has been made, and which are to be furnished by the sheriff as board and lodging. There is another section however, which does include them. It reads as follows: "Whenever the tribunal transacting county business of any county in which the offender shall have committed any crime for which he is imprisoned may be satisfied of the necessity of so doing, they may make an allowance for boarding the prisoner, and may allow a moderate compensation for medical services, fuel, bedding and menial attendance for any prisoner, which shall be paid out of the county treasury." Crim. Code, § 331.

Under this authority, the tribunal transacting county business "may make an allowance for medical services, fuel, bedding and menial attendance furnished for prisoners to any person who furnishes the same, and is not confined to dealing with the sheriff alone. The authorization of or allowance for such services is however discretionary with the board. The board "may allow a moderate compensation" when it is "satisfied of the necessity of so doing." The county cannot be held liable because the service and supplies were furnished upon the request of the sheriff, nor by reason of the individual consent or action of the members of the county board. Roberts v. Commissioners of Pottawatomie Co., 10 Kans. 29. The liability of the county can only arise upon an order made by the county commissioners, duly convened and acting as a board. The petition alleges, it is true, that the prisoner was placed by the sheriff in charge of the plaintiff with the knowledge and consent of the county commissioners, and that the supplies were furnished and the services rendered by the plaintiff at the request of the sheriff, and with the knowledge, consent and approval of the county commissioners. This is insufficient to bind the county. It is nowhere alleged that the county board consented that the plaintiff should be employed, or should furnish the supplies, at the expense of the county. Physicians and nurses might have been employed, and medicines furnished, at the instance of the sheriff, the compensation to be paid by the prisoner, or by his friends, and the consent of the commissions to such action would of course create no liability against the county. According to the petition, the only formal presentation of the matter to the county board was when the claim was presented in January, 1885, at which time the board, as it had the option and right to do, refused to make the allowance and rejected the claim. It is clear that the petition, as it now stands, does not state a cause of action in

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H. W. Bragg, for libellee.

S. Lincoln and J. R. Smith, for libellant.

GARDNER, J. The question raised on this case is whether the connivance of the husband to one act of adultery is a bar to a prior act with another particeps criminis. The libellant contends that the adultery of the libellee with Pease having been found, the only things which can bar the libellant are condonation of that adultery, connivance at that adultery, or the commission by the libellant of some offense which is in itself ground for a divorce. Neither condonation of the adultery with Pease, nor connivance at it, are set up in the defense.

The statutes enumerate various causes which will entitle an aggrieved party to an absolute divorce from the bonds of matrimony. Pub. Stat., ch. 146, § 1. It is well settled that a suitor for divorce cannot prevail if open to a valid charge, by way of recrimination, of any of the causes of divorce set out in the statute. Cumming v. Cumming, 135 Mass. 386. Recrimination as a bar to divorce is not limited to a charge of the same nature as that alleged in the libel. Handy v. Handy, 124 Mass. 394. It is sufficient if the recrimination charges any of the causes for divorce so declared in the statute. The general principle which governs in a case where one party recriminates, is that recrimination must allege a cause which the law declares sufficient for a divorce. Lyster v. Lyster, 111 Mass. 327; Cumming v. Cumming, ubi supra; Clapp v. Clapp, 97 Mass. 531; Hall v. Hall, 4 Allen, 39.

Lyster v. Lyster was a libel for divorce on the ground of desertion. The libellee was justified in leaving the libellant because of his cruel and abusive treatment and gross and confirmed habits of intoxication. The court held that ill treatment and misconduct of the husband of such degree, or under such circumstances, as do not amount to cruelty for which the wife would be entitled to sue for a divorce, might justify her in leaving his home, and prevent his obtaining a divorce for her desertion, if she did so. His decision is in accordance with the great weight of American authority. It is not a case of recrimination. The libellee justifies her act in leaving her husband by reason of his ill treatment. The general rule that recrimination must allege a cause which the law declares to be sufficient for a divorce, it is not affected by it.

Our divorce statutes make no provision respecting connivance, collusion, condonation, or recrimination, and this court has assumed that the Legislature intended to adopt the general principles which had governed the ecclesiastical courts in England in granting divorces from bed and board, so far as these principles are applicable and are found to be reasonable. Robbins v. Robbins, 140 Mass. 528; S. C., 5 N. E. Rep. 837.

This assumption does not go so for as to embrace the recent statute law of England in relation to divorce. Under the English Divorce Act, 20 & 21 Vict., ch. 85, a divorce will not be granted if the court find that during the marriage the petitioner has been accessory to or conniving at the adultery, or had condoned the adultery complained of. It has been repeatedly held under this statute that connivance on the part of the husband will in point of law bar him from obtaining relief on account of the adultery which he has allowed to take place. Volenti non fit injuria is the principle upon which the rule has been founded. Rogers v. Rogers, 3 Hagg. Ecc. 57; Phillips v. Phillips, 1 Rob. Ecc. 151.

Under this principle, it is not always necessary to show active connivance. If it is proved that there has been a long course of criminal conduct on the part of the wife, of which the husband was cognizant, or of which by law and presumption he must be supposed to have been cognizant, he cannot secure relief. Crewe v. Crewe, 3 Hagg. Ecc. 123. The conduct of the husband, after being informed of the adultery of his wife, his refusal to interfere with her, or to institute proceedings against his wife for a divorce, or long delay in so doing, may not in themselves be connivance, but may be evidence of it. A total indifference to such adultery may lead to the inference of original consent. If there was consent there was no injury, and the husband cannot ask for relief where he has not been injured.

It has also been held that a husband who connives at an act of adultery by his wife, cannot complain of any subsequent act, whether with the same or another particeps criminis. Gipps v. Gipps, 3 Swab. & T. 116; Stone v. Stone, 3 Notes of Cas. Adm. & Ecc. 282. It has been held that the same principle, above stated, extends to any act of adultery subsequent to the one directly connived at, because the husband, having consented to the fall of the wife from virtue, cannot complain of acts naturally arising from such fall. It has been doubted whether the general doctrine that connivance at one adultery is a bar to any subsequent adultery, either with the same or another particeps criminis, should govern all cases. The doctrine may be carried too far, and thus deprive a man of all hope, however repentent he may be, and however he may strive to win his wife to repentance. 2 Bish. Marr. & Div., $ 44.

In Hodges v. Hodges, 3 Hagg. Ecc. 118, it was held that a husband proceeding against his wife for her gross adultery committed after a separation of five years from him, resulting in the birth of children, baptized in his name, was not barred, although before the separation he had connived at her adultery with men other than the one with whom this was committed. This case has been doubted and overruled. Stone v. Stone, 3 Notes of Cas. 278; Rogers v. Rogers, 3 Hagg. Ecc. 57. See also Hedden v. Hedden, 21 N. J. Eq. 61.

The libellee relies upon the language used by Lord Stowell in Lovering v. Lovering, 3 Hagg. Ecc. 85. In that case an apprentice was continued in the house with the husband's permission, after he knew of great and indecent familiarities between the apprentice and his wife, and until she was guilty of adultery with another. The court found that the facts amounted almost to consent, and was a degree of delinquency which rendered him unworthy of a remedy; that the husband had connived at another adulterous act, nearly contemporaneously committed, with another person. The wife made no defense. "The ecclesiastical law," said Lord Stowell, "requires two things: that a man shall come with pure hands himself, and shall have exacted a due purity on the part of his wife, and if he

bas relaxed with one man he has no right to complain of another." The language of the court was applicable to the facts of the case, and cannot be referred to a state of facts not existing. It could not refer to a prior act of adultery. The facts of the case did not authorize such reference. Whatever misconduct the court found must have been such as conduced to the subsequent or contemporaneous adultery. When his lordship said, "If he has relaxed with one man, he connot complain of another," he said in substance, "If he has relaxed with the apprentice, he cannot complain of the man who contemporaneously committed adultery with his wife." This case is no authority for the doctrine contended for by the libellee.

We have been referred to no case where the court has held that connivance was a bar to a divorce for a prior adultery. The English statutes and decisions seem to require that the adultery complained of must in some way be the result of or connected with the connivance charged or the divorce will not be barred; as where a wife sets up in defense her husband's connivance at an adultery with a different person prior to the adultery charged, she must prove the prior adultery. Stone v. Stone, ubi supra; Harris v. Harris, 2 Hagg. Ecc. 376.

The equity which deprives the suitor of a right of justice in a court of equity is not general iniquitous conduct, unconnected with the matter in suit, but evil practice or wrongful conduct in the particular matter or transaction in respect to which judicial protection or redress is sought. Woodward v. Woodward, 4 Atl. Rep. 424. We find no authority for laying down the rule, that under all circumstances, connivance at one adultery is an absolute bar to a divorce for a prior adultery, and we feel inclined to say that it is not a reason for refusing a divorce under any state of facts. The character of the connivance, under some circumstances, may be so open, gross and revolting that the court may find that no injury has been done the husband, and that therefore there is nothing to redress; that the husband has entirely abandoned all right to claim that his wife should be chaste; and that he had thus consented to her prior adultery. He may come before the court with such impure hands that upon the soundest considerations of public policy his divorce should be refused. On the other hand, the circumstances of the connivance may be of such a character, having no connection or relation with the prior adul tery, as not to operate as a bar or otherwise against the right of the husband to find relief.

In the case at bar the presiding justice ruled that the record of the former suit was not a bar to maintaining the libel if the libellant proved that the adultery charged in the present suit was committed prior to the adultery charged in the former suit, and not known to him at the time he brought the former libel. Upon inspection of the record of the former suit, and examination of the evidence reported, we do not find the connivance found by the court in that case to be of such a character as to bar the libellant from a divorce for the adultery charged in the libel at bar. Exceptions overruled.

CONSTITUTIONAL LAW-COUNTY INDEBTED

NESS-CRIMINAL EXPENSES.

MISSOURI SUPREME COURT. APRIL TERM, 1886.

POTTER V. DOUGLAS COUNTY. The Constitution of Missouri provides that no county shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income

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and revenue provided for such year without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. Held, that this is no limitation upon the incurring of expenses in the administration of the criminal laws of the State. A jailer's bill for the keeping, boarding, clothing, etc., of prisoners should therefore be allowed as a charge against the county, although at the time it is presented the revenue of the county for the year is exhausted.

F. S. Heffernan, for appellant.

N. E. Ide, for respondent.

SHERWOOD, J. Plaintiff brings the action to recover of defendant the sum of $459 on account of services performed by him as sheriff and jailer of Greene county, in keeping, boarding, clothing and taking to court certain prisoners committed to the jail of that county by the sheriff of defendant, under the provisions of section 6090, Revised Statutes. The bill of plaintiff for these services, though approved by the Circuit judge and the prosecuting attorney, the County Court of defendant, on its presentation, refused to pay or pass upon. The case was tried on an agreed statement, as follows: 1. It was agreed and admitted that the various counts as charged in plaintiff's petition are just and true, and remain unpaid. 2. That at the time the fee bill charged in said petition was presented to the County Court the revenue for said year was expended, and the same could not be paid without issuing warrants in excess of the income of revenue for said year. 3. It is agreed that the revenue derived in said county under the existing laws does not exceed $2,500 per year, and does not more than pay the expense for the first eight months of each year. Wherefore the plaintiff and defendant submit this case on the above facts as the testimony in said cause. Whereupon the court refused to declare the law to be in favor of plaintiff's recovery, and thus refusing, gave judgment for defendant.

The only point then for discussion is the liability of defendant in such circumstances as already set forth. The section of the statute to which reference has been made makes it the duty of the sheriff or jailer of a county to receive prisoners from another county, where there is no jail, or an insufficient one, and safely keep them, subject to the order of the judge of the court for the county whence such prisoners are brought. And sections 6091, 6092, make it the duty of the sheriff or jailer where the prisoners are thus confined to have them before the Circuit Court of the county appointed for their trial, while section 6093 announces a penalty for failure thus to bring the prisoner before the proper court for trial, and renders such sheriff, etc., liable to imprisonment for contempt, and also to a civil action for damages; and section 6095 permits such sheriff, etc., for such failure, etc., to be removed from office and rendered incapable thereafter of holding the

same.

These sections are to be considered in connection with section 12 of article 10 of our Constitution, providing that "No county, city, town, township, school district or other political corporation or subdivision of the State shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose."

It is manifest if that section of the Constitution applies in cases of this sort, the predicament in which those counties are placed which have neither jails nor sufficient revenue is a most lamentable one; bereft, as they would be, of all means for the safe-keeping of that dangerous class of persons whose violations of law cause their arrest. And in similar circumstances

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the same views must hold, even if the provisions of section 6088, Revised Statutes, be resorted to, and a guard employed in the county where the arrest occurs; for the like objections could be taken to the employment of such guard, thereby causing an indebtedness to accrue.

After carefully considering the subject, I am not of opinion that the constitutional prohibition should be ruled to apply to instances like the present. For this conclusion these are my reasons:

I do not regard section 12, supra, as applying here, because the effect of such construction would be destructive of the peace and good order in every county embraced within the provisions of section 6090 aforesaid, for it would be an impossibility to submit to a vote of the people of the county concerned, the question of an unascertained and unascertainable indebtedness to be incurred in the future as the exigencies of the case might demand. Who could foretell how many criminals would be arrested in the course of the ensuing year? If this could be done, is it not glaringly obvious that no question as to the amount of the indebtedness could possibly be submitted to the people for the sanction of their suffrages? The maxim, "lex non cogit ad impossibilia," may appositely be invoked in the present case; a maxim equally invocable whether the law be statutory or organic. It is not to be intended that those who framed or those who by their votes adopted our Constitution, contemplated or sanctioned any such mischievous and destructive result. That Constitution, as its preamble fitting recites and declares, was established "for the better government of the State," and the idea is not to be tolerated that the framers and the adopters of that organic instrument would insert a clause therein which would in many a county destroy those restraints and those protections which the law in its wisdom has with fostering care thrown around peace-loving and law-abiding people, and turn them over without let or hindrance to the ravages and revenges of that class against whom its denunciations are leveled and its penalties and punishments are commanded to be enforced. Such a construction, destroying as it would, the very fundamental safeguard and bulwarks of organized government and society, would be to attribute to the framers of the Constitution a most palpable absurdity; and by an absurdity is meant that which is to be regarded to be morally impossible, which is contrary to reason, or in other words, which could not be attributed to men in their right senses. State v. Hayes, 81 Mo. 574; Fusz v. Spaunhorst, 67 id. 256; Smith Cont., §§ 486, 465, 518.

At the present term of the court, in the case of Kunce v. Earle, the section of the Constitution under discussion was examined, and held to apply to a case where, without a vote of the people, a debt was incurred for making additions to a court-house. But the ruling in that case supports the ruling in this one; for there the amount of the indebtedness could be ascertained, and being ascertained, and being in excess of the "income and revenue provided for such year," it was properly ruled that "the assent of two-thirds of the qualified voters," etc., was a sine qua non to the validity of the indebtedness.

But another reason also occurs why that section cannot apply to the case at bar. The inhibition of the Constitution, it will be observed, is levelled against a county becoming indebted, i. e., through the ordinary channel, the action of the County Court, the financial agent of the county. But here the indebtedness was not so incurred. It was created entirely independent of any action of the County Court; created by the sheriff of the county pursuant to the command of section 6090, supra. The law itself gave license to the incurring of such a debt; it was incurred by operation

of law, and the fact that the county would ultimately have the debt to pay cuts no figure in this discussion. We reverse the judgment and remand the cause. All concur.

NEW YORK COURT OF APPEALS ABSTRACT.

CERTIORARI-STATE BOARD OF ASSESSORS-EQUALIZATION-VALUATION OF PROPERTY.-In a case where the General Term has exercised its discretion with respect to the allowance or denial of a writ of certiorari to review the equalization of property by the State assessors, under section 2127, Code of Civil Procedure, and has refused to grant it, on the ground that it ought not, under all of the circumstances of the case, to be issued, this court has no jurisdiction to review its determination. People, ex rel. v. Board of Com. of New York, 97 N. Y. 42. But in a case where that court has exercised its discretion with respect to the allowance or denial of the writ, and has refused to grant it on the ground that it ought not, under all of the circum

of

stances of the case, to have been issued, this court has no jurisdiction to review its determination, and so it has been repeatedly held. People, ex rel. v. Board of Tax Com. of New York, 85 N. Y. 655; People, ex rel. Vanderbilt, v. Stilwell, 19 id. 531; People, ex rel. Davis, v. Hill, 53 id. 547. In the opiniou referred to in the order for the grounds of the decision of the court below, that court alleged no want of power to authorize the writ, but stated many, and as we think, sufficient, reasons why, upon all of the facts of the case, the writ ought not to have been issued. In arriving at the value of real property in a particular locality for the purpose of equalizing appraisements for taxation, the State board of assessors is not required to adopt as its basis the considerations inserted in deeds of transfer in that locality. No rule of law requires the true consideration to be inserted in conveyances of real estate, and it is within the common knowledge of all conveyancers that the amount stated therein is often determined by fanciful, capricious and arbitrary considerations which render it utterly unreliable as evidence of value. It is frequently depressed by forced and and unnatural sales, and enhanced by fictitious values placed upon property transferred in exchange or deeded in settlement disputed claims or given from considerations of affection, liberality and duty, and is at the best, but the opinions of the grantors and grantees of its value, or a declaration by them of the price placed by them upon the property. Such prices have usually been held inadmissible as evidence of value in actions relating to the property, for the reason that they are liable to be influenced by too many causes aside from the actual value to be regarded as competent evidence of that fact. Roe v. Hanson, 5 Lans. 305. Prices obtained upon public sales are for obvious reasons considered some proof of the value of the property sold, and are receivable as evidence upon the question of value. Campbell v. Woodworth, 20 N. Y. 499. The usual method however of proving value in legal proceedings is by the testimony of witnesses who express their opinions under oaths as to such value, based upon their knowledge of the subject-matter and familiarity with the circumstances bearing upon the question. Clark v. Baird, 9 N. Y. 183; Greenl. Ev., § 440, n.; Whart. Ev., §§ 447, 448, 449; Lawson Expert Ev. 435; De Witt v. Barly, 17 N. Y. 340. It is not claimed that the State assessors have neglected to perform the duty imposed upon them, by visiting the various counties of the State and making inquiry as to the value of real estate therein, and the ratio of assessment to value prevailing in the several counties. Although the information thus obtained might not have

been digested in writing, it was still available to inform their own judgments and to be made the subject of oral communication to, and discussion by, the board of equalization when acting upon the questions to be adjudicated. The law assumes that the several officers charged with the duty of determining the values of property for the purposes of taxation in the State are either competent from their own knowledge and experience to properly discharge such duty, or that they will by their own voluntary action fit themselves for its due and proper performance. No special education is required to enable a witness to testify as to the value of real estate. It does not involve any question of science or skill, and no reason exists why any person of ordinary intelligence and judgment cannot qualify himself to estimate with reasonable accuracy the value of such property by making special inquiry and examination respecting it wherever it may be situated. Lawson Expert Ev. 436; Swan v. County of Middlesex, 101 Mass. 173. The valuation of property is necessarily a matter of opinion among men, and must under all circumstances be finally determined by the judgments of individuals, and the scheme of the statute seems to be to leave its decision to the officers selected for that purpose, and that their determination shall be conclusive evidence of such value for the purposes of taxation. The law does not specify the degree of knowledge or information which the members of the State board shall possess to entitle them to discharge their duty, and the only statutory condition to the exercise of their authority seems to be the possession by them of the assessment rolls returned by the several counties of the State. Except for the provision of the statute authorizing parties whose property is assessed to appear before the town, ward or city assessors and make affidavit as to the circumstances and value of the property assessed to them respectively, no provision is made for the hearing of such parties by any of the administrative bodies engaged in perfecting the valuations of taxable property, and it is to be implied by irresistible inference therefore that the law contemplates that such bodies shall proceed in the performance of their duties upon their own knowledge, information and judgment, and so far as they may be deficient therein that they will in their own way inform themselves of such facts as it may be necessary to know in order to discharge their duties intelligently. While there is no want of power in the courts to review such determinations by certiorari, yet a judicial view of conclusions based mainly, if not exclusively, upon the mental operations and the individual knowledge and qualifications of the persons composing the tribunal referred to, is obviously impracticable, if not impossible. Reasons founded upon the personal knowledge and experience of individuals, or conclusions reached by the exercise of their intellectual faculties cannot be recorded and reproduced in such a manner as to enable an appellate tribunal intelligently and fairly to review the correctness of their judgment. Inherent and insuperable difficulties exist in the very nature of the process by which their conclusions are reached, which renders any appellate jurisdictton over their determination impracticable and ineffectual. There must from necessity reside somewhere the power of making a final disposition of questions of value for the purpose of taxation, and the State has made the judgment of the members of its board of equalization the ultimate determination of such value; and a court has not the power to substitute its own opinion for that of the tribunal specially authorized by law to form and declare one. July 27, 1886. People, ex rel. Mayor, etc., v. McCarthy. Opinion by Ruger, C. J.

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