State v. Carson & Colorado Railway Co.

By the Court,

Sweeney, J.:

This is an action brought by the State of Nevada, plaintiff, against the Carson and Colorado Railway Company, et al., defendants, for disputed taxes alleged to be due to plaintiff on the property of said defendants for the year 1905. In January, 1905, the state board of county assessors met with the state board of revenue in Carson City, Nevada, in accordance with an act of the Legislature of the State of Nevada (Stats. 1901, p. 61, c. 50, and as amended by Stats. 1903, p. 95, c. 69), and fixed the valuation for the purpose of taxation upon the main line of the Carson and Colorado Railway Company at $3,500 a mile, and the side track at $1,250 a mile. Thereafter, when the county assessor of Esmeralda County came to assess the railroad property of defendants, he placed the same valuation thereon as fixed by the state board of county assessors. When the county board of equalization of Esmeralda County met as required by law in September, it raised the valuation on the 88 miles of the 146 odd miles of said railroad property of said defendants in Esmeralda County, which had been broad-gaged, to $8,500 a mile on the main track and $2,500 a mile on the side track, making a total raise in the valuation as fixed and .assessed by the state board of county assessors and county assessor of $489,150. This raise in valuation by the county board of equalization on the property of defendants gave rise to the present cause of action, which said action was duly tried before the District Court of the First Judicial District in and for the County of Esmeralda, and resulted in a judgment in favor of the State of Nevada against the defendants for the sum of $36,335.43, taxes and penalties, together with costs of suit.

From an order of the lower court denying a motion for a new trial, and from said judgment rendered in this ease, defendants appeal, alleging that said judgment is erroneous for the following reasons:

First — That because the state board of county assessors fixed the valuation upon said railroad of defendants at $3,500 a mile for the main line and $1,250 a mile for the side line, and that the county assessor had assessed the property at the same figure, the county board of equalization had no authority to add to the valuation as fixed by. the state board of county assessors and as assessed by the county assessor.

.Second — That no legal notice was given to the Carson and Colorado Railway Company by the county board of equalization before the increased valuation was added to its lines, nor were they given an opportunity to appear before said board and show cause why such raise should not be made.

Third — That the changes and additions made in the assessment roll were not made by the person legally authorized to make them, but were made by the clerk of the board of equalization, when, as alleged, the statute requires the auditor to make any additions to said assessment roll after they have been made by the county board of equalization.

Fourth — That at the time said increase in the valuation of the property assessed to the Carson and Colorado Railway Company was made by the county board of equalization the property did not belong to the Carson and Colorado Railway Company, the same having been sold to the Nevada and California'Railway Company.

Fifth — That after the lien attaches upon property in this state, which is on the first Monday in March, as alleged by' counsel for appellants, the enhanced value of property cannot be assessed; that whatever property is subject to taxation must be in existence on or before the first Monday in March.

Sixth — That the assessment of property- in this state fixes on the-first Monday in March at the time of the levy of the tax, and that property must be assessed at the valuation of this date, and, further, that no property coming into existence or into the state after this date can be placed on the assessment roll for that year.

Seventh — That the defendants paid to the county treasurer of Esmeralda County the sum of $14,886.94, the amount due on said valuation of said road as fixed by the state board of county assessors and county assessor, which said sum was refused by the county treasurer as payment in full for all taxes due to said plaintiff from said defendants.

It is seriously and urgently contended by counsel for the respondent on this appeal that the act of our legislature to provide for a more uniform valuation and assessment of property in this state as approved March 16, 1901 (Stats. 1901, p. 61, c. 50), and as amended by the legislature of 1903 in the statutes of that year (p. 95, c. 69), which said acts created the state board of county assessors and which limit the powers of the county boards of equalization, are, for many reasons assigned, unconstitutional, and which contention, if true, asserts respondent's counsel, would thoroughly justify said board of equalization in adding the increased valuation in question to the assessment roll. After very careful consideration and study of the law involved in this case, we have concluded that it will be unnecessary, for reasons hereafter disclosed, to pass upon or consider the constitutionality of the acts in question.

It appears from the record in this case that the state board of county assessors convened in January in accordance with law, and placed a valuation on the main track of defendants at $3,500 a mile and on the side line at $1,250 a mile. At this time of the year, be it remembered, said Carson and Colorado Railroad was narrow-gaged; that thereafter the county assessor assessed the said railroad property at the same figure as fixed by the state board of county assessors. In September, when the county board of equalization convened, they raised the valuation on the 88 miles of broad-gaged road of defendant to $8,500 on the main track and $2,500 on the side track. During the intervening period, between the date of the fixing of the valuation by the state board of county assessors and the date of the convening of the county board of equalization, 88 miles of the 146 odd miles of the railroad of said defendant in Esmeralda County were changed into standard, broad-gaged road, which materially enhanced the value of said property of said defendant; this necessarily being so because of the fact that in broad-gaging a narrow-gage road new rails of a heavier weight, new ties, new culverts, and, in fact, all materials used in the replacing of the narrow-gage material are of a heavier and superior value.

Section 1 of an act of our legislature entitled "An act to amend an act entitled 'An act to provide for a more uniform valuation and assessment of property in this state,’ approved March 16, 1901,” which is the section in question, which is urged by appellant as inhibiting the county board of equalization from equalizing any property upon which a valuation has been placed by the state board of county assessors, and which section, among others, is alleged to be unconstitutional by the respondent, reads as follows:

" The county assessors of the several counties of this state shall meet for a period not exceeding ten days in the office of the governor at Carson City, Nevada; on the second Monday in January of each year, and shall at such meetings establish a valuation through the state of all railroads and rolling stock of such railroads, of all telegraph and telephone lines, of all electric-light and power lines, of all cattle and' sheep, and upon all other kinds of property which in the judgment of said assessors can be valued and assessed more uniformly by said assessors, acting collectively, than by the several county assessors, acting separately; provided, that in fixing such valuation the location and situation of such property shall be considered; and, provided further, that nothing herein shall be considered as to impair the right of the board of equalization of any county to equalize taxes on all property, the valuation of which has not been fixed at the annual meeting of the county assessors as provided in this section; but the said county board of equalization shall not have the power to equalize any property upon which a valuation has been placed by said board of county assessors; provided, any taxpayer under the provisions of this act shall not be deprived of any remedy or redress in a court of law relating to the payment of taxes.” (Stats. 1903, p. 95, c. 69.)

Section 1084 of the Compiled Laws, pertaining to the assessment of property in Nevada, provides, among other things, that "between the date of the levy of taxes and the first Monday of September in each year, the county assessor, except when otherwise required by special enactment, shall ascertain, by diligent inquiry and examination, all property in his county, real or personal, subject to taxation, and also the names of all persons, corporations, associations, companies, or firms, owning the same; and he shall then determine the true cash value of all such property, and he shall then list and assess the same to the person, firm, corporation, association, or company owning it.”

Section 1081 of the Compiled Laws of Nevada provides that "all property of every kind and nature whatsoever, within this state, shall be subject to taxation,” excepting certain property of widows, cemeteries, lodges, churches, and certain lands belonging to the United States, and other state and municipal authorities, mines and mining claims, under certain conditions.

Section 1079 of the Compiled Laws reads as follows: "Every tax levied, under the provisions or authority of this act, is hereby made a lien against the property assessed, and a lien shall attach upon the real property for the tax levied upon the personal property, of the owner of such real estate, which lien shall attach upon the day on which the taxes are levied in each year, on all property then in this state, and on all other property whenever it reaches the state, and shall not be satisfied or removed until all the taxes are paid, or the property has absolutely vested in the purchaser under a sale for taxes.”

It is the theory of the law of taxation and revenue in this state that all tangible real and personal property shall be assessed each year once at its full cash value. We have found no authority in this state in conflict with the doctrine laid down in the case of State of Nevada v. Earl, et al., 1 Nev. 397, wherein this court in referring to this theory said: "The true theory of the statute is that each piece of tangible real or personal property within the state between the first Monday of May and the first Monday of November, each inclusive, should be taxed once at its true value, and only once.”

Viewing these various provisions of our statutes bearing on taxation and the manner of assessment, we are of the opinion that there is no material conflict, and that all of these statutes can readily be reconciled. The railroad property of appellant when assessed by the state board of county assessors was a narrow-gage road. The assessor of Esmeralda County at the time he made the assessment of this property assessed said property at the same valuation placed on it by the state board of county assessors, and in consequence his assessment, as far ns it went, is valid. If the road had been changed from a narrow-gage to á broad-gage road at the time he made the assessment, it, or so much of it as had been broad-gaged, under our construction of the law, should have been assessed, and it would have been his duty to have assessed the increased valuation in said road, or, in the event it was not broad-gaged at the time he made his assessment, if the road was broad-gaged any time before he completed his tax list or assessment roll on or before the second Monday in September and turned same over to the clerk of the board of county commissioners, he should have added .this increased valuation to his assessment roll. Having failed to do this, as in the present case, the county board of equalization had the full authority under the law to add to the assessment as made • by the state board of county assessors and the county assessor the increased valuation due to improvements, betterments, and additions which occurred since the date of the assessment, and under these circumstances it became the duty of the board of equalization to equalize any property which had been assessed at an undervaluation of its full cash value. (State v. Meyers, 23 Nev. 274, 48 Pac. 51.)

We think it is a reasonable construction to place upon the amendment of 1903 above quoted that the inhibition upon the county board of equalization, equalizing the valuation of property which has been fixed by the state board of county assessors, only applies when such property remains in substantially the same condition, and that it does not apply to property which has materially changed in form and value since the meeting of the state board. Any other construction does violence to the general policy of our revenue laws. The valuation as placed by the county board of equalization on the said road is not pleaded in the answer of defendant as excessive, nor is it shown anywhere in the record to be excessive.

If appellant had desired to raise the issue of excessive valuation, it should have prepared its answer in accordance with section 1124 of our Compiled Laws, which section provides just what defenses may be set up in tax suits. Neither is it claimed by the defendant that this increased valuation made in the property of the railroad was ever subjected to taxation before during the year 1905, nor that said increased valuation was ever assessed by the state board of county assessors, and it could not have been, because at said date of assessment by said state board of county assessors it was a narrow-gage road.

We are of the opinion that all property must be assessed which comes into existence in the State of Nevada either in the nature of additions, betterments, or improvements, or being new property coming into the state during the time intervening between the first Monday in March and the first Monday in September, inclusive, of each year so long as said property has not before been subjected to taxation for said year; that if property which is assessed in January by the state board of county assessors enhances in value because of betterments or improvements, as is the case in the present instance, before the first Monday in September, the assessor should assess the valuation on said property as assessed by the state board of county assessors plus any additional or increased valuation which accrues to said property, and that, if he fails to do so, the county board of equalization are authorized to equalize the property at its full cash value, to the end that no property in the state may escape taxation once during the year.

Many, if not the majority, of the states have constitutional or statutory provisions fixing a day certain in each year with reference to which the valuation of real and personal property shall be fixed, as, for example, the statute of the State of California, following a similar constitutional provision of said state, provides: "The assessor must, between the first Mondays of March and July of each year, ascertain the names of all taxable inhabitants and all property in his county subject to taxation, except such as is required to be assessed by the state board of equalization, and must assess such property to the persons by whom it was owned or claimed, or in whose possession or control it was at 12 o’clock m. of the first Monday of March, next preceding.” Many authorities are cited by counsel for the appellant, based upon such constitutional or statutory provisions, holding that property which is not within the state upon the day fixed, or improvements made upon the property subsequent to such day, is not liable to assessment for that year. But, as there is no such constitutional or statutory provision in this state, these authorities are inapplicable. (State v. Earl, 1 Nev. 397.) All property in the State of Nevada not exempt from taxation which is in this state on the first Monday in March; and all property coming into the state not exempt from taxation after the first Monday in March to and including the first Monday in September, is subject to taxation for that year, and a lien attaches to all taxable property which is in the state on the first Monday in March, and also attaches immediately to all taxable property coming into the state after the first Monday in March to and including the first Monday in September. (Comp. Laws, 1079.)

It is contended by appellant that they did not receive any notice of the intended raise to be made on the property of appellant, and were given no opportunity to be heard before said board of equalization in the consideration of the additional valuation added to its property. The record discloses the following testimony given by Mr. Atchison, clerk of the county board of equalization: "Mr. John Gr. Atchison continued in direct examination: (By Judge Mack): Q. As deputy county clerk and acting for the clerk, at the time the board of equalization was in session, did you give the defendant any notice of the intended raise by the board of equalization in the assessment of the defendant? A. Yes, sir. Q. How did you give that notice? A. There was a printed form which is used for that purpose, and I sent one to the secretary of the Carson and Colorado Kailway Company, at Carson City, and another notice to San Francisco. Mr. Pyne has showed me a copy of a notice since he, has been in town, and it might be possible we notified the San Francisco office in the name of the Carson and Colorado Railway Company; but the other notice was sent to the Carson and Colorado Railway Company, Carson City, to Mr. Yerington. Q. Have you a copy of that notice? A. No, sir. Q. Can yon give, from memory, the substance of the notice? A. I can, except the printed form. Q. Did yon see the printed notice? A. Yes, sir. Q. Did you affix the seal to it? A. Yes, sir; affixed the seal. Q. To whom did you send the notice? A. I sent the one to Carson City to E. B. Yerington, secretary of the Carson and Colorado Bailway Company. The second was sent to E. B. Byan, San Francisco. It is nearly a year ago, and it seems to me I asked ,Mr. Henley, at that time, the course to pursue, knowing it was an important case. Q. In the notices was the fact set forth that the board of equalization was going to make the raise? A. Yes, sir. Q. Was a time fixed for them to appear and show cause? A. Yes, sir. ' Q. Was any notice published in the paper relative to it? A. Not that I know of.” It also appears from the transcript, pages 24, '46, 47, that notice of the added valuation was published in the Walker Lake Bulletin in accordance with section 1098 of Nevada Compiled Laws, which said section is merely directory. (State v. Washoe County, 14 Nev. 140; State v. Northern Belle, 15 Nev. 385.) While there may be some conflict in the testimony as to whether or not proper and regular notices were duly given the defendant, yet we deem the finding of fact by the court upon this question conclusive, and this in accordance with a well-defined line of authorities holding that a finding of fact will not be disturbed where there is substantial evidence to support it.

And, for the same reasons that the previous error is not reversible and an additional legal reason hereafter given, appellant’s contention that at the time of the action of the county board of equalization when .it added the increased valuation complained of the property in question belonged to the Nevada and California Bailroad Company, we deem the finding of fact of the lower court against appellant’s contention conclusive, and it will not be disturbed. Appellant failed to allege in its answer that at the time of the assessment by the state board of county assessors or county assessor the property in controversy was not the property of the Carson and Colorado Railway Company. Section 1124 of our Compiled Laws, in defining what defenses may be interposed in tax suits wben denying title of property, expressly states that the defendant must deny "all claim, title, or interest in the property, assessed at the time of the assessment,” and in consequence this assignment of error cannot avail- it anything on this appeal. The county board of equalization has no assessorial powers, but equalizes the assessment by adding to or deducting from the assessment as made by the assessor.

The error assigned by appellant that the changes and corrections made in the assessment roll by the county board of equalization must be done by the auditor, instead of the clerk of the board of equalization, is not well taken. Section 26 of an act entitled "An act to amend an act to provide .revenue for the support of the government of the State of Nevada and to repeal certain acts relating thereto,” etc., approved February 25, 1893 (Stats. 1893, p. 48, c. 48), reads: "During the session, or within five days after the adjournment of the board of equalization, its clerk shall enter upon the assessment roll all the changes and corrections made by the board, and shall immediately deliver said corrected roll, with his certificate attached, to the county auditor.” As this is the latest expression of the legislative will upon this point, though seemingly in conflict with the statute directing the auditor to place the changes and alterations on the assessment roll, it was not error for the clerk to have made the changes and alterations as made by the county board of equalization on said assessment roll. As it is not claimed that the alterations and corrections by the clerk of said board were erroneously made, and it affirmatively appearing that they truly represent the altei’ations and corrections as made by the county board of equalization, even conceding that the auditor should have made the alterations and changes, no material harm to appellant could arise, nor is any claimed to have arisen, from this particular assigned error, and would therefore not be so serious an error as to warrant a reversal of the judgment on this score.

The assessment and added valuation of said property having been legally made, the county treasurer was right in refusing to accept $14,886.94 tendered in full payment for the taxes due on the property of the defendant for the year 1905. .

For the foregoing reasons, the judgment of the lower court is affirmed.