23 P. 502 | Nev. | 1890
The facts are stated in the opinion. Appellants Ford Merritt are copartners in the business of stock-raising. They are the owners of real estate and personal property, consisting principally of sheep, in Eureka county. They have no real estate in Nye county. Merritt resides in California. The home ranch, where appellant Ford resides, is in Eureka county, and is the principal place of business of the copartnership. The sheep are controlled, cared for and managed at their home ranch. In the early spring the sheep have been annually driven away from the home ranch, in charge of herders, into Nye county, to graze upon the public domain of said county for a period of about two months, and were then returned into the county of Eureka, where they remained in the vicinity of the home ranch. In January, 1889, fourteen thousand head of the sheep were so driven into Nye county temporarily, and there grazed upon the public domain until the early portion of March, when the herders, as was the usual custom, commenced to drive them back into Eureka county; and, while the herders were so driving them, the respondent, assessor of Nye county, finding them at the commencement of the assessment season — which begins on the first Monday in *449 March and ends on the first Monday of September in each year — assessed them as personal property subject to taxation in Nye county for the year 1889. He demanded immediate payment to him of the amount of taxes on said personal property; and appellants refused to pay the same, or any portion thereof, and notified respondent that said property belonged in and was assessable in Eureka county, and was not assessable in Nye county. Thereupon the respondent seized upon and took possession of one thousand four hundred head of said sheep, and sold sufficient thereof to satisfy the claim for taxes, and the costs and expenses of the assessment, levy and sale. Appellants, in order to regain the possession of said sheep, were compelled to pay, and did, under protest, pay the sum of eight hundred and one dollars, that being the amount of the tax, costs and expenses. The sheep were immediately driven into Eureka county and were thereafter there assessed, and the taxes due thereon made a charge against the real estate of appellants in Eureka county. This suit was instituted to recover the money paid under protest to respondent. The district court granted a nonsuit, and gave judgment in favor of the respondent upon the grounds: (1) That, upon the facts stated, the property was subject, under the law of this state, to taxation in the county of Nye; (2) that the respondent, in assessing the property and collecting the tax, acted judicially, and could not therefore be held liable in this action.
This case cannot, in our opinion, be distinguished in principle from that of Barnes v. Woodbury,
The court also erred in holding that respondent acted judicially, and could not be held personally liable. In support of the views expressed by the court, counsel for respondent cites several New York cases, including, among others, Barhyte v. Shepherd,
As long as the assessor acts within the scope of his authority, he is protected by the law; but, to bring him within this rule, he must be careful not to assume a jurisdiction which the law does not confer upon him. If he assumes an authority to decide upon the rights of others in cases which the law has not confided to his judgment, he is in general responsible to the same extent as if he possessed no official character whatever. "The office protects him only when he keeps within the limits which have been prescribed for his official action. When he exceeds those, he lays aside his official character, and must rely for his protection on the same principles behind which citizens in private life must defend themselves." (Cooley, Tax. 553.) The judgment of the district court is reversed, and the cause remanded; and the court is directed to enter judgment in favor of appellants for the sum of eight hundred and one dollars and costs.