State ex rel. Thompson v. Board of Equalization of Washoe County.

if there were nothing in the context of the statute itself to warrant

such presumption.

However, so far as this case is concerned, it might very safely be admitted that the employment of the word proceedings, in this statute, was intended to authorize the court or officer to whom the writ is issued to certify facts not committed to writing, but held in remembrance until required to be returned, for there is no such certificate here. Certainly, if a certificate of such fact could be received at all, it must be made upon the knowledge of the person making it, otherwise it would not be his certificate in its full intent and meaning. A person who simply certifies to a fact, and in the same certificate states that it is done upon information derived from another, really only certifies to the information or knowledge of another. He does not certify to the fact of his own knowledge. In this case, that there might be no mistake, the clerk makes the statement that the certificate is made upon affidavits presented to him for the purpose of enabling him to make it. This cannot be a compliance with the statute, which requires the tribunal to whom the writ is issued, or its clerk, to certify the record and proceedings.

But it is argued, if this certificate is rejected, the demand of the assessor and the statement of the railroad company should also be disregarded, because not shown to have been used by the board, or to have been on file at the time of equalization; and as a consequence, the board would be shown to have jurisdiction to equalize, as there would be no proof of a refusal to comply with any demand of the assessor. However, it seems to us the clerk's certificate that "the demand, statement of A. N. Towne, statement of the assessor, and the protest of Thompson, are true and correct copies of original papers among the files of tax papers of Washoe County for the year 1870, now on file in my office," serves to show that they were on file at least. It is true, he afterwards certifies that he was not present during the entire sitting of the board, and therefore does not know what papers were used. Nevertheless, this certificate warrants the conclusion that the papers mentioned were filed, as they are certified to be copies of original papers among the files of the office. It is not as definite in this respect as it should

State ex rel. Thompson v. Board of Equalization of Washoe County.

be still, the papers being taken from among the files, warrant the conclusion that they were themselves filed. If on file, they are of course a part of the records of the board, and must be presumed to have been before it.

By the papers thus returned, then, it appears a demand was made, and that it was not complied with by the railroad company; the case is thus brought directly within the statute, that no equalization shall be made when no statement is furnished, and also within the case of The State v. The County Commissioners of Washoe County, 5 Nev. 317.

Again, it is argued that the failure to furnish a statement within the time designated by the law does not deprive the board of jurisdiction, because it is claimed the statute only imposes the penalty where the person applying therefor has neglected to make a statement without legal excuse. This language of the statute is said to confer a discretion upon the board to determine whether there is a legal excuse or not; and, if it determine there is, although it may err in judgment, it is not ousted of jurisdiction. Counsel, we think, has entirely misapprehended the purport of the section of statute referred to. It reads thus: "If any corporation, company or person owning such railroad fail, neglect or refuse, after being notified, to furnish a statement for assessment and taxation, as provided in this act, the county assessor may proceed to make the assessment in the same manner as in other cases, as provided in the act to which this act is supplemental; and any person upon whom a demand is made for a statement, as in this act provided, failing, neglecting or refusing to furnish the statement as required, without legal excuse, shall be subject to the same punishment as in other cases of such failure, neglect or refusal, as provided in the act aforesaid." The punishment inflicted in cases of the neglect or refusal mentioned is imposed by Section 6 of the original Act of 1866; whilst the power of the board to equalize taxes is regulated by Section 15. The first imposes a punishment on the individual-the other simply prescribes the jurisdiction of the board of equalization, depriving it of the authority to equalize, when the person applying for that purpose has failed to comply with the demand for a statement. Nothing is clearer than that the legal excuse mentioned in the Act of 1869 is only to

State ex rel. Thompson v. Board of Equalization of Washoe County.

be considered in the criminal prosecution, and not before the board of equalization. The punishment shall be inflicted where there is no legal excuse for the neglect or refusal to comply with the demand of the assessor. The prohibition upon the board to equalize the tax of a person in default is not spoken of in the original act as a punishment; it is simply declared that in such case there shall be no equalization. The punishment imposed by Section 6 is one thing-the power and jurisdiction of the board is an entirely different thing. Because the punishment is only to be inflicted where there is no legal excuse for the neglect or failure of a person to make a statement, it by no means follows that the power of the board of equalization is thereby changed; that, notwithstanding Section 15 expressly prohibits an equalization of the tax of a person who has neglected or refused to comply with the demand, still, that they may, under this section of the supplemental act, claim the jurisdiction, whenever it may conclude there was a legal excuse. It is too manifest to admit of argument, that the legislature in the supplemental act simply intended to allow the showing of a legal excuse as a defense in cases of criminal prosecutions, and not to extend or interfere with the jurisdiction of the board of equalization. Section 15 of the Act of 1866, to which we must look for the jurisdiction of the board, gives it no discretion whatever, but imperatively declares that, where the person complaining of the assessment has refused to give the assessor his list, under oath as required, no reduction shall be made by the board of equalization in the assessment made by the assessor.

There being no discretion in the board in regard to this matter, and no showing of jurisdiction, the action of the board was unauthorized, and must therefore be annulled, and judgment entered accordingly.

State v. Central Pacific Railroad Company.

THE STATE OF NEVADA, RESPONDENT, v. THE CENTRAL PACIFIC RAILROAD COMPANY, APPELLANT.

TAX SUIT-FRAUD IN ASSESSMENT AS MATTER OF DEFENSE. Where, in a suit against the Central Pacific Railroad Company to recover taxes under an assessment made in the absence of a legal statement, defendant set up in answer that the assessment was made by the assessor, fraudulently and contrary to his official judgment, at a sum nearly three times greater than the fair value of the property; Held, that such answer stated good matter of defense and was not demurrable.

MEANING OF ALLEGATION OF "FAIR VALUATION."

Where, in answer to a tax

suit, the defense was fraud in the assessment, and it was alleged that in a certain statement furnished the assessor, (but which was informal) the property was set down as of the value of $6,000 per mile, which was a fair valuation thereof, and so known and believed by the assessor": Held, that this amounted to an allegation that $6,000 per mile was a just and fair value, and consequently that an assessment of $15,000 per mile was excessive.

LIBERAL CONSTRUCTION OF PLEADINGS. The old common law rule, that a pleading must be construed most strongly against the pleader, is replaced by the broader, more sensible and just rule of the code, that it shall be liberally construed with a view to substantial justice between the parties.

FRAUD IN ASSESSMENTS. As the law requires an honest and just estimate of value to be placed upon property for the purposes of taxation, an excessive valuation made by an assessor contrary to his official judgment and with intent to injure, is a fraud against which the law will afford relief.

FAILURE TO FURNISH STATEMENT-EXORBITANT VALUATION. The fact that a taxpayer fails to make a statement as required by law, does not authorize the assessor to impose a valuation which he knows to be exorbitant and unjust.

APPEAL from the District Court of the Third Judicial District, Washoe County.

This was an action against the Central Pacific Railroad Company and its real estate in Washoe County, to recover $16,402.50 alleged to be due for taxes for the year 1869, and ten per cent. thereon as damages for non-payment. The valuation of the property of the company was the same referred to and involved in the case of The State v. Commissioners of Washoe County, 5 Nev. 317.

S. W. Sanderson, for Appellant.

I. Fraud in the assessment is one of the defenses allowed by the statutes of this state in actions of this character. Under this pro

State v. Central Pacific Railroad Company.

vision, any act on the part of the assessor, of either omission or commission, which misleads the taxpayer, or allows him to suppose, contrary to the truth, that he has secured to himself the benefit of statutory provisions intended for his security and protection against unequal and oppressive taxation, must amount to fraud. The suppressio veri or suggestio falsi of equity jurisprudence must amount to fraud under this statute. In this case, the appellant was deprived of its legal right to an equalization of the assessment in question, by the action of the assessor; and, further than this, the assessor, in willfully assessing the property, contrary to his official judgment, at a higher figure than its actual value, perpetrated a gross fraud upon the appellant.

II. The property in question is exempt from state taxation. 12 U. S. Stats. at Large, 489; Cooley.v. Board of Wardens, 12 How. 299; Gilman v. Philadelphia, 3 Wallace, 713; Crandall v. The State of Nevada, 6 Wallace, 35.

III. It is not claimed that the National Government has an exclusive jurisdiction in all respects over this road. Such a claim would be untenable. Its jurisdiction is limited to such matters as affect its right of construction, maintenance, repair, and unembarrassed, unobstructed, and unburdened use for all purposes for which said road has been constructed, leaving the jurisdiction of the state untouched as to all matters which are not calculated to retard, impede, burden, or in any manner control its full operation. Nor is it claimed that the interest of private individuals in the road cannot be taxed by the state; but it is not conceded that the stock of the corporation can be taxed by the state.

L. A. Buckner, Attorney General, and Robert M. Clarke, for Respondent.

I. The answer is insufficient, inasmuch as it does not state the facts which constitute the alleged fraud. 1 Van Sandtford's Pleading, 355; 15 Cal. 414; 30 Cal. 572.

II. The alleged excessive valuation does not constitute fraud under the statute. 10 Wend. 186. Equalization is the remedy for excessive valuation. 4 Nev. 251. But this remedy is forfeited