State v. Central Pacific Railroad

10 Nev. 87 | Nev. | 1875

By the Court,

Beatty, J.:

This case is in most respects similar to the preceding case of the same title. It isa suit for the taxes assessed against the property of defendant in Washoe County for the year 1871, amounting to something over thirty-six thousand dollars. The State had judgment and the corporation appeals. In this case the assessment wrns not reduced by the board of equalization ancl no part of tbe tax was paid. "When the delinquent list went into the hands of the district attorney the whole of the tax was charged to him, and it became his duty under the law to bring suit for the amount of the tax and the penalty for delinquency. He did not bring the suit, however; but, on the contrary, reported to the board of commissioners that the tax had been compromised by the board of commissioners by their order dated December 11, 1871 (quoted in our opinion in the preceding case); and thereupon, by order of the board, an indorsement was made on the report of the district attorney in regard to this tax as follows: “Stricken off by order of the board of commissioners. J. S. Shoemaker, Clerk.”

It has been shown that the order of the board making this compromise was without authority and void and constituted in itself no reason why the tax could not be collected. But it is claimed that an order striking the taxes from the delinquent list upon the report of the district attorney that, for any cause, they could not be collected, was authorized by the provisions of section forty of the revenue law, and that this order was made in pursuance of those provisions. Supposing the commissioners to have believed there were good reasons why the tax could not be collected, and to have acted on such belief in pursuance of the provisions of section forty, how are the rights of the parties affected thereby? In order to preserve a correct account of the fiscal affairs of the county the tax collector is charged by the auditor with the total amount of tax appearing on the assessment-roll. He is credited with the amount of his collections and the amount returned delinquent, and so his account is balanced. When the delinquent list is passed over to the district attorney he is charged with the total amount of taxes appearing to be delinquent. He is credited with the amounts collected by him with or without suit, and with such further amounts as upon his report the commissioners may determine cannot be collected. The sole object of section forty is to provide a means of balancing the account between the auditor and district _ attorney. The delinquent taxpayer can claim no advantage from it. When tbe district attorney bas reported a tax non-collectible, and bis report is adopted by tbe board, be is relieved from tbe charge against bim on that account; but if, after be makes bis report, be finds that tbe tax can be collected, be not only bas tbe right but it is bis imperative duty to commence suit, as be did in this case; and tbe fact that be bas been credited with tbe amount of tbe tax by tbe auditor is no concern of tbe delinquent. It should be stated in this connection that, before this suit was commenced, tbe law forbidding the'district attorney to commence suits except in the cases where the commissioners authorized it, bad been repealed, leaving to tbe district attorney tbe same authority be bad before its enactment, to sue for all delinquent taxes where tbe amount delinquent exceeded three hundred dollars. We conclude that in any view tbe district attorney bad authority to commence this suit.

Tbe only additional point made in this case is that tbe judgment should have been credited with twenty thousand dollars of tbe money paid in pursuance of tbe attempted compromise of tbe taxes of 1869, 1870 and 1871. Tbe testimony in this case, as in case No. 690, shows that no part of tbe sum of twenty-two thousand three hundred and fifty-five dollars paid by tbe defendant was specially appropriated to tbe taxes for 1871, and that it bad been wholly applied under tbe defense of payment to tbe taxes of 1869 and 1870, for tbe collection of which separate suits bad been prosecuted. If, at tbe time tbe money was paid, it was not appropriated to tbe payment of any particular taxes, tbe State bad a right to apply it as it chose, and even if it bad been originally paid by defendant on tbe taxes of 1871, tbe State could at defendant’s request have afterwards changed tbe application of tbe payment, and allowed it as a set-off to other claims. By pleading payment in tbe suits for tbe taxes of 1869 and 1870, and proving and obtaining credit for this identical sum of money, tbe defendant is precluded from claiming that it was originally appropriated to tbe payment of tbe taxes of 1871.

Tbe judgment and order appealed from are affirmed.