The facts sufficiently appear in the opinion. Action to recover taxes due for the year 1896, amounting to $1,242, and penalties and costs.
The property described, about which there is contention as to value, consists of a certain quartz mill and certain hoisting works belonging to the Alta Silver Mining Company, situated in the Town of Gold Hill, Storey county. The assessor placed the value of the mill at $10,100 and the hoisting works at $20,000. The company, in the statement to the assessor, put the value of the one at $5,000 and of the other at $10,000. The board of equalization reduced the assessor's valuation of the quartz mill to $6,000, and of the hoisting works to $18,000. By the answer it is alleged that said assessment of $24,000, as equalized by said board, is in excess of the true cash value of said property, and that the true cash value thereof is the sum of $15,000.
The jury found the value of the property to be $24,000. Judgment was given for said sum of $1,242, with the penalties and costs. This appeal is taken from the judgment and from the order of the court below denying appellant's motion for new trial.
Counsel for respondent moved for an order of this court *Page 235 dismissing the appeal on the ground of the insufficiency of the undertaking: First: "In this, that said undertaking was executed before the notice of appeal therein had been filed or served." Second: "In this, that the residence or occupation of the sureties named and executing said undertaking are not set forth therein."
The record shows that the notice of appeal was filed on the 21st day of September, 1897, and afterwards, on the same day, it was duly served. It also shows that the undertaking was filed on the same day, and in the absence of any showing to the contrary it will be presumed that it was properly filed, that is, that it was filed after the filing and service of the notice or cotemporaneously therewith. The undertaking being signed by the sureties and their affidavits thereto being taken on the 20th day of September, it is claimed that it was executed before the filing and service of the notice of appeal, but the undertaking was not executed till it was delivered to the clerk for filing.
Section 342 of the civil practice act is cited by counsel in support of their contention that the undertaking is insufficient because the residence and occupation of the sureties are not set forth therein. That section has reference to an undertaking given to stay execution. Whether it is sufficient for that purpose or not, is not a matter for inquiry before this court. It is sufficient under section 341 to perfect the appeal. That section does not require the residence nor the occupation of the sureties to be set forth in the undertaking or otherwise. (State ofNevada v. California M. Co., 13 Nev. 203.) The motion is denied.
The Levy: It appears that the board of county commissioners of said county for the fiscal year 1896 levied, among other taxes, upon all the property within the limits of said town, an ad valorem tax of $140 upon each one hundred dollars value of said property for the purposes of said town, and likewise a tax of twenty cents for the purpose of the fire department of said town.
The question as to the authority of the board to levy said twenty-cent tax is presented by the record for the determination of this court.
It is claimed that the authority to levy this tax of twenty *Page 236 cents is given by "An act to create a fire department fund" (Stats. 1862, 328), and amendments thereto, (Stats. 1881, 110), of which act section 1 provides: "The county commissioners of the various counties of the State of Nevada are hereby empowered to levy and collect a tax of not exceeding one-half of one per cent, upon the assessed value of property within an unincorporated town for the benefit of the fire department in such town."
Counsel for appellant contends that the said act of 1865 did not apply to Gold Hill, because at the time it was an incorporated town, and hence that the amendment of 1881 does not apply because the original act did not and does not so apply. The amendment of 1881 simply raised the limit of the levy from one-quarter of one per cent to one-half of one per cent.
It is true that the act of 1865, at the time it was passed, did not apply to Gold Hill, because that town was then an incorporated town.
The act applied to a class of towns, to wit: unincorporated towns. Gold Hill was disincorporated in 1881 by special act of the legislature, and thereupon became an unincorporated town. When it became of that class the act of 1865 became applicable to it, the same as it became applicable to all towns of that class which have sprung up since the passage of that act and not incorporated. We are of opinion that said levy was legally authorized.
The Evidence: The insufficiency of the evidence to justify the verdict of the jury is one of the grounds on which the motion for new trial was made. E. D. Boyle and A. J. McCone were the only witnesses examined who gave an intelligent opinion as to the value of the property in question. These witnesses showed themselves to be thoroughly familiar with the property and competent in every respect to testify to its value. The highest value in 1896 either of them placed the property at was $16,500. We find no evidence in the record to justify a higher valuation, and therefore hold that the evidence does not justify said verdict.
Penalties — Tender: The defendants tendered to the tax collector the sum of $77950 in full payment of all the taxes for the year 1896, claiming that the same was in excess of *Page 237 the true amount due of legal taxes assessed upon the true cash value of defendant's property. The tender was set up in the answer. To this part of the answer the plaintiff demurred and moved the court to strike it out. The demurrer was sustained and the motion granted. Defendants excepted, and assigned the action of the court as error. In support of the action of the court the case of State v. CarsonSavings Bank, 17 Nev. 146, is cited. In that case the amount of the tax assessed against the bank was $1,34958. The bank tendered $66950 in full payment, claiming the same to be all that was legally due. The question in that case was whether certain bank deposits were assessable to the bank. The bank claimed that they were not, and tendered the whole tax, except the amount assessed on said deposits. This court held that said deposits were properly assessed to the bank. The bank claimed it was not liable for the thirty-five per centum penalties on the amount it had tendered. The court said: "The facts are these: There were due one thousand three hundred and forty-nine dollars and fifty cents. Defendant tendered six hundred and sixty-nine dollars and fifty cents in full payment and satisfaction. The tender was made on condition that it should be received in full satisfaction. Certainly the county treasurer had no authority to receive the money with that condition attached. If defendant's theory of the law had been found correct, the tender would have been sufficient. But the law being otherwise, the tender of a part, made on condition that it be received for the whole, does not relieve defendant from the payment of the entire penalties."
The court recognized the right of a taxpayer who may be sued for a tax to contest the same on any legal ground, and to tender the amount he may deem to be legal and proper, and if he shall prevail in his contention and the court shall find that he has tendered the full amount properly assessable against him, he shall not be subject to penalties. In this view we fully concur.
The judgment and order from which the appeal is taken are reversed.
The trial court upon a new trial will ascertain the amount of taxes due, based on the true cash value of the property as *Page 238 then found, and will determine whether the amount of said tender equals or exceeds the amount of the taxes so found; if so, enter judgment for the taxes without any penalty or costs; if not, enter judgment for the taxes and also for the statutory penalties and costs.