State v. Nev. Cent. R. R. Co.

The facts sufficiently appear in the opinion. This is an action for taxes assessed against defendant for the year 1900. Plaintiff recovered judgment for the full amount claimed, together with penalties, etc. Defendant appeals.

Error is assigned upon the introduction in evidence of the delinquent list, upon the ground that it was not certified to by the auditor.

Section 1106, Comp. Laws, provides: "On the first Monday in December the ex officio tax receiver, at the close of his official business on that day, shall enter upon the assessment roll a statement that he has made a levy upon all the property therein assessed, the taxes upon which have not been paid, and shall immediately ascertain the total amount of taxes then delinquent, and file in the office of the auditor the list of all persons and property then owing taxes, verified by the oath of himself or deputy, which shall be completed by the second Monday in December, and shall be known as the delinquent list. * * *"

By Section 1118 the delinquent list is made primafacie evidence in any court to prove the assessment, property assessed, the delinquency, the amount of taxes due and unpaid, and that all the forms of law in relation to the assessment and levy of such taxes have been complied with.

This was the mode of proof adopted in this case, and was in strict conformity with the provisions of Section 1106 and Section 1118, Comp. Laws, and did not require certification by the auditor.

Under the provisions of Section 1118, a copy of the delinquent list may be used for the same purpose, and in that case the statute provides that the auditor, in whose custody the original is, may certify to the copy.

In connection with this assignment it was urged that the delinquent list does not comply with the requirements of Section 1093 of the revenue law, in that it does not follow the form prescribed by the statute for the assessment roll in numerous particulars, and that the rate of taxation was higher than allowed by law.

All these matters were prima facie established by the delinquent list, and no attempt in evidence made to impeach it, nor to show that any substantial right of defendant was affected by the failure of the officers to follow the statutory form.

Section 3285, Comp. Laws, provides that no exception shall be regarded upon motion for new trial or on an appeal unless the exception be material and affect the substantial rights of the parties.

In People v. Moore, 1 Idaho, 662, relied upon by appellant, the assessment was made under a statute authorizing the officer, when the taxpayer does not own sufficient real estate within the county to secure the payment of the tax, to seize and sell sufficient of the assessed property to satisfy the taxes and costs.

In cases of this nature, where the remedy is special and summary, statutes are strictly construed; and the owner has a right to insist upon a strict performance of all the material requirements of the statute, and especially those which are designed for his security, and the non-performance of which may operate to his prejudice. (21 Enc. Pl. Prac. 394.)

"When process is extraordinary and in derogation of the common law, the steps leading to it must all have been taken; and, if it issued under any other circumstances than those under which the statute gives it to the officer issuing it, he will be a trespasser." (Desty, Taxn., p. 762, et seq.)

"A remedy is provided by statute for the enforcement of the tax by distress, and sale of goods of the taxpayer; and the rule of the common law is that, when a statute creates a right and provides a particular remedy, it is exclusive of all common-law remedies. But this doctrine only applies to those to whom the statute is a rule of action." (Burroughs, Taxn., 253; State v. W. U. Tel. Co.,4 Nev. 347.)

Touching the business of the road for the purpose of determining its value, the testimony upon the part of the state tended to show a profit of $17,090. It is claimed that this amount should be reduced by miscellaneous account, $2,827.29; overcharges, $2,512.15; and taxes, $3,237.85; aggregating the sum of $8,577.29. Admitting this contention in its entirety for the purposes of the case, there would still remain sufficient evidence of valuation to support the judgment.

This conclusion is reached in this way: The testimony concerning the current rate of interest varied from 4 per cent per annum to 18 per cent per annum. Mr. Stokes, the president of the defendant corporation, testified that the rate of interest in New York was from 4 to 6 per cent; and other witnesses testified that large sums of money, such as the assessment in this case, could not be successfully placed in the State of Nevada, but such loans could be made only in the money centers of the country. Defendant's property was assessed for the sum of $174,663. The profit of the road, after making these deductions, amounts to the sum of $8,512.71. This sum, capitalized at the rate of 4 9/10 per cent, approximates, for all practical purposes, the amount of the assessment.

The judgment and order denying a motion for new trial are affirmed.

ON PETITION FOR REHEARING.