14 Nev. 140 | Nev. | 1879
By the Court,
The respondents, sitting as a board of equalization, made an order adding to the assessed value of petitioner’s property. He seeks by certiorari to have that order set aside and declared void upon the ground that the board had no jurisdiction to act. It is alleged that the order was made without any complaint of undervaluation, either oral or written, having been laid before the board. Upon presentation of the petition we ordered the writ to issue, and the respondents have made their return thereto, which shows that no written complaint was filed, and that there is nothing in the minutes of the board to show that even an oral complaint was made. The return is, however, accompanied by an affidavit of the chairman of the board to the effect that such a complaint was made, but 'that a recital of the fact was inadvertently left out of the minutes of their proceedings.
The petitioner objects to the consideration of this affidavit on the ground that' it is not a part of the record. The objection is probably well founded as the case stands; but we think very respectable authority might be found for ordering the board to amend its record so as to conform to the facts, and to make a return of its record as amended.
It was claimed by petitioner, at the time of presenting his petition, that section 32 of the revenue law (C. L. 3156), which excludes all except certain enumerated defenses in tax suits, would prevent him from relying upon the want of jurisdiction in the board to raise his assessment. But this is a mistake. The concluding sentence of that section, “and no other answer shall be permitted,” must be understood with this qualification, that it does not exclude the direct denial of any allegation of the complaint necessary to be proved in order to entitle the state to recover. The assessment is one of the facts which the state is bound to prove, and if the commissioners had no jurisdiction to raise petitioner’s assessment, their act was void, and can be collaterally attacked. (People v. Reynolds, 28 Cal. 108; People v. Flint, 39 Id. 670; People v. Goldtree, 44 Id. 323; Beck v. Commissioners of Washoe, recently decided in this court.)
We have not noticed the other point relied upon by the petitioner, that is, that the clerk failed to publish a list of the persons the valuation of whose property had been raised by the board, for the reason that in our opinion it does not affect the question of jurisdiction. The publication of such notice is one of those acts “between the assessment and commencement of suit” which are expressly declared to be “directory merely,” and a nonperformance of which is not ground of defense in a tax suit unless it has actually injured the defendant. (C. L. 3156; State v. C. P. R. R., 10 Nev. 61.)
The writ having been improvidently issued is hereby set aside and the proceeding dismissed.