SHAW, J.,
dissenting.—I dissent from the judgment annulling the order for increase of the petitioner’s assessment. The claim is that the increase was made by the board of equalization without giving him any notice thereof as required by section 872 of the Municipal Corporation Act and without affording him any hearing on the question.
Upon the filing of the petition in the district court of appeal an order was made for the issuance of an alternative writ of review, requiring the respondents to show cause on a day stated why the alternative writ should not be made final. The respondents filed in that court an answer to the application and also a return containing a copy of the record of the proceedings of the board of equalization which are sought to be reviewed. We cannot take the failure in the answer to the original application to deny averments therein as an admission of the facts not denied. The application and answer
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served their purpose when they resulted in the making of a return of the record sought to be reviewed. The only matters we can consider here are the record included in the return and such evidence as may properly be introduced upon the question of the jurisdiction of the tribunal whose proceedings are under review. The inquiry is confined to the question of its jurisdiction and power to act in the matter. The evidence to be considered is the evidence which was introduced before the tribunal in question and such evidence should be included in the return either as originally filed or as amended under the order of the reviewing court. The rule is that where the record speaks, its statements are conclusive, but if it is silent on any point, the evidence shown by the return to have been taken by such tribunal on the subject may be considered, but evidence
dehors
the record is not admissible to contradict it. These propositions are settled by the following decisions:
Whitney
v.
Board of
Delegates, 14 Cal. 500;
Hoffman
v.
Superior Court,
79 Cal. 476, [21 Pac. 862] ;
Pedrorena
v.
Superior Court,
80 Cal. 145, [22 Pac. 71]
; Borchard
v.
Board of Supervisors,
144 Cal. 14, [77 Pac. 708] ;
Los Angeles
v.
Young,
118 Cal. 298, [62 Am. St. Rep. 234, 50 Pac. 534] ;
Schwarz
v.
Superior Court,
111 Cal. 112, [43 Pac. 580];
Reynolds
v.
County Court,
47 Cal. 605;
Imperial W. Co.
v.
Board of Supervisors,
162 Cal. 22, [120 Pac. 780];
Roe
v.
Superior Court,
60 Cal. 93; 4 Ency. of Plead. & Prac. 277, 286; 6 Cyc. 822.
The board met as a board of equalization on.August 21, 1911. Notice of that meeting was duly given by a general notice published in a newspaper. On that day the board instructed the assessor and tax-collector to prepare an abstract of the city assessment-roll for the use of the board. Thereafter, the board adjourned from time to time until September 7, 1911. The minutes of the last named date contain the following statement: “The following raises in the assessment-roll for the year 1911 were approved by the board.” Then follows a list giving the property assessed, the names of the owners respectively, the amount of the original assessment and the amount of the raise, naming about 200 taxpayers. The minutes then proceed as follows: “The board then decided to meet at 8:00 p. m., Thursday, Sept. 21, 1911; Friday, S.ept. 22, 1911, and Monday, Sept. 25, 1911, in order
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to give all the above taxpayers a chance to show cause why their assessment should not be raised to the figures given. The city clerk was instructed to send notices to all the above named property owners, showing the amount their respective assessments were raised to and what the raise was on. The clerk was instructed to divide the cards so that about an equal number would be instructed to appear on each of the above mentioned dates.” Thereupon the clerk issued and mailed the notices, that to the petitioner being as follows:
“Notice to Taxpayers.
“Auburn, California, September 11, 1911.
“The assessment on your property has been raised by the City Board of Equalization, as follows:
“L. Huntley: (Here is inserted a description of the lots, the amount of the original assessment óf each lot, and the amount to which each was raised.)
“The Board of Equalization will be in session at 8 p. m., Sep. 25,1911, at the city offices to adjust all assessments where cause is shown.
“ (Signed) L. F. Morgan, City Clerk.
“By order of the City Trustees.”
The petitioner did not appear on September 25, 1911, or at all, before the board, although it is conceded that he received the notice in time to have appeared and objected. The board heard objections from some forty-three taxpayers of the city and after several adjournments and the making of a number of reductions in proposed “raises,” the hearings were concluded on October 9th, at which time the minutes show that the following occurred: “Trustee Davis moved that the assessed valuations be accepted as they now stood after the changes made by the board. The motion was seconded by Trustee Predom and carried unanimously.”
It is a general rule, even in the absence of a statute,' that mere informalities in the record of proceedings for the assessment of taxes, if the jurisdiction or power exists, are not sufficient to invalidate them.
(La Grange etc. Co.
v. Carter, 142 Cal. 562, [76 Pac. 241].) Where the board or officer has power to do the act, the language in which the action is recorded will not be construed strictly for the purpose of holding the proceedings invalid. The court should endeavor by a view of the entire proceedings to ascertain to a common cer
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tainty what was done by such board, and if, with reasonable certainty, it appears that it was acting within its powers and regularly according to law, the proceedings will not be invalidated merely because the words used to describe the acts are not strictly and technically correct, or not as accurately expressive of the intent as other words which might have been used if the orders had been -drawn by one well versed in the use of language. As was said in the case just cited, if the courts were to adopt a strict rule of construction, with respect to boards of equalization and other inferior tribunals, “and hold them to exact and apt expressions framed in'proper legal terms and set aside all acts not so expressed, it would result in nullifying most of the acts of such boards.” In that case an order stating that the assessment of the company, naming it, “stand as raised,” but not otherwise describing the property or stating the amount to which it was raised, or declaring that it was raised, was held sufficient, when explained by reference to a preliminary order to show cause, in which the description and proposed increase were set forth. In
Savings & Loan Soc.
v.
San Francisco,
146 Cal. 679, [80 Pac. 1089], it was said that a notice to a taxpayer to show cause why its “assessment” should not be increased, was sufficient to authorize the board to add other property thereto. In
Farmers etc. Bank
v.
Board of Equalization,
97 Cal. 325, [32 Pac. 312], a notice to “show cause why your assessment on solvent credits should not be increased from $2,774 to $275,000,” was held to authorize the addition of other property to the assessment, as well as an increase of the valuation of that already listed.
Measured by the rules established by these decisions I think the proceedings of the board and the notice given show a compliance with the provision of the Municipal Corporation Act authorizing a board of equalization to raise an assessment upon notice to the property owner. It is evident from the entire record that the “raises,” so-called, originally made by the board, were not intended as the final action of the board, but were made provisionally until a hearing could be had, and for the purpose of stating the amount as a proposal to the taxpayer which he could submit to or appear and object to, as he might desire. After the raises were approved by the board on September 7th it proceeded to fix the times and
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place when and where the taxpayers were to be given, as the minutes state “a chance to show cause why their assessments should not be raised to the figures given.” The clerk was directed to send notices accordingly. This plainly indicates that the “raises” previously made were not then finally adopted by the board, but were only proposed increases to which the taxpayers should have an opportunity to object, but which were not to become final, if at all, until after any objections made should be duly considered and either allowed or overruled. There can be no doubt that the actual proceedings and intent of the board were in all respects in accordance with the statute.
The real objection is that the notice sent-to the respective property owners did not sufficiently inform them of the facts. But this objection disregards the aforesaid rules applying to proceedings of this character. The notice clearly informed the property owner that he would have an opportunity to object to the proposed assessment at the time and place stated. While the opening clause declares that the assessment
“has been
raised,” the concluding clause informed him that the board would be in session at the time stated, “to adjust all assessments where cause is shown.” This clearly means that he would have an opportunity to then and there show cause why the assessment should not be raised to the figure named, and to make any objection which he might have to make thereto and that the same would be adjusted after hearing and considering such objections. While it did not expressly declare that the increase was only a proposed increase, it did not declare that it was final, and it did advise him that he would have the opportunity to be heard and give evidence to prevent his assessment from being raised to the figure stated. He could not reasonably have believed otherwise. In fact, the assessment was not finally approved until after the time when he might have appeared and objected. He did not choose to attend at the time specified or to make any showing. The notice was in ample time to enable him to appear if he so desired and was sufficient to inform him that he might have done so. Having neglected to appear, I think the sound rule is that he should be bound by the order.
The objection that no evidence was taken goes to the proposition that the board did not take evidence aside from the
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knowledge of its members, as to the value of the property. This is an inquiry into the merits of the decision upon which the order was based and not as to the jurisdiction therefor. The rule is settled that in
certiorari
the reviewing court will not consider the merits of the judgment or order reviewed. (See eases first above cited; also
Winter
v.
Fitzpatrick,
35 Cal. 272;
Central Pac. R. R.
v.
Placer County,
43 Cal. 367;
Quinchard
v.
Board of Trustees,
113 Cal. 668, [45 Pac. 856].) The statute empowers the board to raise assessments “of its own motion” and it does not require that the evidence of value shall be recited in its orders. In
Farmers’ etc. Bank
v.
Board of Equalization,
97 Cal. 325, [32 Pac. 312], the court said that where there is jurisdiction of the person and subject matter, the sufficiency of the evidence on the merits is not open to question. I am of the opinion that the record shows no defect sufficient to justify a judgment annulling it.
Angellotti, J., and Sloss, J., concurred.