State v. Central Pacific Railroad, No. 1127

No. 1127 | Nev. | Jan 15, 1883

By the Court,

Belknap, J.:

This action is brought to recover judgment against the defendant corporation for taxes assessed against it in Lander county, for the year 1881, amounting to the sum of twenty-nine thousand seven hundred and sixty-nine dollars and eighteen cents.

The defense is based upon an alleged reduction of the assessment of defendant’s propertjr by the board of equalization, whereby the total amount due was reduced to the sum of fifteen thousand two hundred and sixty dollars and three cents.

Evidence offered in support of this defense was excluded by the court, and judgment rendered in favor of the state for the full amount demanded, including penalties and costs, aggregating the sum of forty-three thousand three hundred and ninety-one dollars and fifty-four cents.

From the judgment and an order overruling a motion for a new trial defendant appeals.

Before examining the assignment of errors contained in the statement, certain preliminary objections to the consideration of the record are made by the respondent, and tiñese will be disposed of first.

These objections are founded upon the failure of defendant to appear at the hearing of the motion for a new trial, and its failure to except to the order of the court denying the motion. It is contended that such failure to appear operated as an abandonment of the motion.

The case was tried on the sixth day of 'March, 1882. The statement on motion for new trial was filed on the sixth day of April following, and upon the twenty-ninth day of the same month the clerk of the court appended his certificate to the effect that no amendments had been filed. Thereafter, and on the first day of May succeeding, the motion for new trial was, at the instance of the attorney for the State, taken up and overruled by the court.

These facts, of themselves, certainly 'show no intention on the part of the appellant to abandon its motion. But, from the fact that the motion was based upon errors in law and insufficiency of evidence, and that defendant made and filed its statement without delay, 'it would seem that defendant desired a pro forma ruling of the district court upon the questions which arose upon the trial, in order to perfect a record by which those questions could be reviewed by this court. It is a matter of frequent occurrence in the practice before the district courts of this state to formally submit, without argument, motions for new trial, based upon questions of law which have been discussed upon the trial. It is, of course, unnecessary to reargue matters upon which the court is fully advised, and upon which its mind is concluded. It is, however, urged that the supreme court of the state of California has decided this question in accordance with the contention of respondent, and Mahoney v. Wilson, 15 Cal. 42" court="Cal." date_filed="1860-07-01" href="https://app.midpage.ai/document/mahoney-v-wilson-5434314?utm_source=webapp" opinion_id="5434314">15 Cal. 42, and Frank v. Doane and Green v. Doane, 15 Cal. 302" court="Cal." date_filed="1860-07-01" href="https://app.midpage.ai/document/frank-v-doane-5434369?utm_source=webapp" opinion_id="5434369">15 Cal. 302 and 303, respectively, are cited to this effect.

These cases were decided under a statute of that state, adopted in the yea'r 1851, which did not require á particular specification of errors. Subsequently, and at the session of the legislature of 1863, the state of California adopted the practice act of which ours is substantially a copy. Under the amended act, which requires — as ours does — the moving party to specify the particular errors upon which he relies for a new trial, it was held in Carder v. Baxter, 28 Cal. 99" court="Cal." date_filed="1865-04-15" href="https://app.midpage.ai/document/carder-v-minturn-5435774?utm_source=webapp" opinion_id="5435774">28 Cal. 99, that a refusal to argue the motion by the moving party was not an abandonment of it. The decision was placed upon the ground that the statement set forth specifically the grounds of the motion. Such a designation of alleged errors is sufficient to relieve the motion from the charge of abandonment. The onty difference .between that case and this one, upon this point, is that there the motion was called up by the moving party, while here it was taken up at the request of the party opposing the motion. But this difference is immaterial, as such motions may be called up by either party.

The section of our practice act touching new trials was borrowed by this state from the state of California. Before its adoption by our state, the statute was construed in the above mentioned case. In such cases the construction is deemed adopted with the statute.

The case of People v. Center et al., recently decided by the supreme court of California (9 Pacific Coast Law Journal), is also cited by respondent upon this ground. In that case the moving party neglected for the spa.ce of nine months after the settlement of the statement on motion for new trial to have it engrossed and filed, and the court held that the motion was properly dismissed for want of prosecution.

It is also claimed that the statement .on motion for new trial should be disregarded because it was not used in the court below. The civil practice act, at section 197, provides the manner in which the statement shall be prepared and. authenticated, and thereafter declares that “ the statement thus used * * * shall constitute * * * the papers to be used on appeal.” Stress is laid upon the words “ thus used” as contemplating a presentation in some way of the statement to th.e attention of the court. But the statute does not necessarily contemplate such action. When it speaks of the statement being used, it means employed as the record of the proceedings upon which the motion is grounded; and whenever a statement is prepared and settled it is “used” within the meaning of that word in the statute.

, Whilst these questions have been considered upon their merits, appellant has objected to their consideration for the reason that the facts upon which they are founded do not properly appear of record. They are brought to our knowledge by the opinion of the district judge, filed after the decision of the motion for a new trial and during the term of court at which the decision was made.

It is apparent, from an examination of the various provisions of our practice act relating to the making of records upon which rulings of the district courts maybe reviewed, that both parties to the litigation may participate in the making of the record. If this theory of the law is to be observed, we ought not to receive as a fact any statement which the opposite party has not had any opportunity of amending or correcting. The requirement that a written opinion shall be filed by the court in' granting or refusing a new trial is as follows: * * * “ The court or judge granting or refusing a new trial should state in writing generally the grounds upon which the same is granted or refused.” (Sec. 1259, Comp. L.)

This provision has always been held to be directory, and separate and distinct from the “ findings of fact ” provided by the statute. It was suggested in Corbett v. Job, 5 Nev. 205, that it was intended to embrace the reasoning or argument for the decision of the motion, and this, we are convinced, is its only office. The requirement being directory, the district court may or may not put the grounds of his decision in writing. Certainly the legislature never intended that facts not appearing in the statement on motion for new trial depended for the presence in the record upon the pleasure of the judge before whom the cause was tried. Our statute secures this right to every litigant who pursues its plain provisions.

In passing upon the question of a new trial we are confined to the statutory statement, and if either party is entitled to present any matter arising subsequent to the judgment, and which cannot properly be presented, by the statement on motion for new trial, it must be done by statement on appeal.

In Caldwell v. Greeley, 5 Nev. 262, the appellant sought to review the action of the district court in refusing to allow an amendment to the specification of errors contained in the statement, and for this purpose presented the minutes of the court made after .the submission of the motion. The court held that the question could be presented only by statement on appeal.

The remaining objection to the consideration of the record is that the appellant failed to except to the order of the court overruling its motion for a new trial.

The purpose of an exception was considered by the supreme court of California, in Smith v. Lawrence, 38 Cal. 27. In that case the appellant took no exception to an order sustaining a demurrer, and refusing to amend, judgment was entered against him.

The court said: “The office of an exception, reserved in the manner provided by the statute, is to cause the question of law, which was presented to and decided by the court, to be made a matter of record, so that it may be re-examined by the court on motion for a new trial, or be reviewed by the appellate court. The action of the court upon a demurrer usually is, and, in all cases, should be, entered of record; and the making of the same thing a matter of record a second time, by reserving an exception, would subserve no useful purpose. There is no more room to indulge the presumption of an acquiescence in the decision, because no exception was taken, than there would be that the losing party acquiesced in a judgment, because he took no exception to the order for judgment. * * * An exception is not necessary unless a bill of exceptions or a statement, under our system of practice, is requisite, in order to present for review the question of law upon which the decision passed, which the party insists is erroneous, and neither a bill of exceptions nor a statement is required when the record already presents the question of law and the decision of the court.”

These views are as applicable to the matter in hand as they were to the questions before the California court. The statement on motion for new trial and the order of the court thereon present the matters for review, and under these circumstances no exception was necessary. Moreover, an order overruling a motion for new trial is a matter occurring after the rendition of final judgment, and for this reason it does not appear to be the subject of an exception within the definition of that term as contained in the practice act. The definition is as follows: “An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, court or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision.” * * *

At the trial of the cause it appeared that the minutes of the board of county commissioners, sitting as a board of equalization, failed to show that any complaint had been made by the defendant of the assessor’s valuation of its property. This being a jurisdictional fact, it devolved upon defendant, contending that the assessment had been reduced, to show that such complaint had been made. For the purpose of proving this fact defendant offered the commissioners themselves as witnesses. The court properly excluded their testimony.

The statute requires that a full and complete record of all the proceedings of the board of county commissioners shall be kept, and that all their proceedings shall be entered in the records. (Sec. 3074, Comp. Laws.) Where such a requirement exists the record is the proper evidence of the official doings of the board. (City of Lowell v. Wheelock, 11 Cush. 391; Harris v. Whitcomb, 4 Gray 433; Morrison v. Lawrence, 98 Mass. 219" court="Mass." date_filed="1867-11-15" href="https://app.midpage.ai/document/morrison-v-city-of-lawrence-6415186?utm_source=webapp" opinion_id="6415186">98 Mass. 219; Louisville v. McKegney, 7 Bush, Ky. 651.)

Appellant also sought to establish the same fact by a record of the board of equalization, amended by the board of county' commissioners, wherein it is recited that the omission in the original record to state the fact that- a complaint had been made regarding the valuation of defendant’s property was an inadvertence, and that in truth such complaint had been made. Thereupon, and on the thirtieth day of November, 1881, the record was amended so as to conform to the truth. The board of county commissioners constitute a board of equalization. While acting in the latter capacity they are spoken of in the statute (sec. 3139) and in the decisions as the board of county commissioners meeting or sitting as a board of equalization. In acting as a board of equalization they do so as the board of county commissioners, and all of their proceedings as a board of equalization are inseparable from their action as the board of county commissioners.

So that, the proceedings of the board of equalization, are, in fact, the proceedings of the board of county commissioners. And when the commissioners amended the record in this case they simply amended the record of their own proceedings as county commissioners, sitting as a board of equalization. This thejr had the undoubted right to do. (Dillon on Mun. Cor., 3d Ed., secs. 294-6, and eases there cited.)

The next question arises upon the ruling of the court in refusing to admit in evidence the written statement of the general superintendent of defendant pertaining to its property. This document was first proven to have been delivered to the assessor at the proper time.

It is made the duty of railroad companies to furnish the assessor, for the purpose of enabling him to make his assessment, a written statement “setting forth the length of said road in such county and the value thereof, with a list of the property, real and personal (except rolling stock), pertaining thereto; also, the whole length of said road within the state, and the number and value of all locomotives and cars, commonly known as rolling stock, used on said road within this state, and an apportionment of the value of such rolling stock to such county” * * * (Stat. 1875, p. 105.) No power exists in the board of equalization to reduce an assessment when the corporation complaining has refused to furnish such statement. (Sec. 3139, Comp. Laws.)

The introduction of the statement in evidence was objected to upon the ground that it did not in form and substance comply with the requirements of the statute, and because the fact that such statement was made should be shown by the records of the board of equalization.

This paper is entitled as follows: “Statement of A. N. Towne, general superintendent of the Central Pacific Railroad Company, showing the amount, character and valuation of all property belonging to, or in custody, or under the control of said railroad company, and subject to taxation within the county of Lander, in the state of Nevada.”

It states the whole length of said railroad in the state of Nevada, and in each county of the state; the number of miles of main and side track in Lander county, and its value; the number of miles of telegraph line in Lander county, and its value, and the number and value of the rolling stock used on the road, and Lander county’s proportion of the value of the same. It sets forth a list of the lands of the corporation according to government subdivisions, and the value of the improvements upon its real estate, and contains a list of personal propei^r other than rolling stock.

The first objection made to the statement is that it does not meet the requirements of the act of 1875, in that it does not set forth an itemized list of personal property, other than rolling stock. It contains this item: “ Office furniture and fixtures of a movable nature.” We think this is a sufficient compliance with the requirement to furnish a list of personal property. It was not intended that this list should contain a description in detail of the various articles of personal property. If an itemized list of such property were to be exacted from the taxpa3mr in making his statement, and from the assessor in making his assessment, the enforcement of our revenue laws would become difficult and expensive.

Again, it is urged -that the statement is defective, in that it does not contain a list of all of the property of the defendant in Lander county, but only purports to contain a list of its property pertaining to its road.

Under section 6 of the revenue act (sec. 3130 Comp. Laws, Stát. 1881, p. 64), it is made the duty of all persons and corporations to furnish the assessor, on demand, with a written statement, under oath, of all his, or its, personal property or real estate within the county.

It is said that this section must be construed in connection with the statute of 1875, above referred to, and that the statement should contain not only a list of the property, real and personal, pertaining to the road, but a list of all of the property of the party. The -statute of 1875 relates only to railroad property, and the defendant strictly complied Vith its requirements in so far as the contents of its statement is concerned. If the defendant had sought a reduction upon the valuation of property of a general nature, and not appertaining to its road, the position assumed by the respondent would have defeated a reduction; but no question affecting property of that nature arises in this case. The reduction was asked, and made, only upon the valuation of the road and road bed and rolling stock; in other words, upon the road itself and property necessarily pertaining thereto.

Objection is also made to the affidavit of the general superintendent. The affidavit is as follows:

“ State oe California,

City and County of San Francisco,

ss'

“A. N. Towne, being first duly sworn, deposes and says: My name is A. N. Towne, and I am the general superintendent of the Central Pacific Railroad Company; that the length of said railroad in said Lander county is twenty-six and seventy one-hundredths (26 70-100) miles, and the value thereof is one hundred and sixty thousand two hundred dollars, and the within statement sets forth a list of the property, real and personal (except rolling stock), pertaining thereto; also, the whole length of road within this state, and the number and value of all locomotives and cars, commonly known as ‘ rolling stock,’ and on said road within - this state, and an apportionment of the value of such rolling stock to said county, estimated according to the proportion which the portion in said county bears to the whole length of said railroad within this state; and that I make such statement in pursuance of an act, approved February 27, 1875, entitled ‘An act supplementary to an act entitled an act to provide revenue for the support of the government of the state of Nevada,’ approved March 9, 1865, and the acts amendatory thereof, and to define the manner of assessing railroads proper in the state.’

A. N. TOWNE.

“[seal. 3 Subscribed and sworn to before me, this third day of June, A. D. 1881.

“CHARLES J. TOLBERT,

“ Commissioner of Deeds for the state of Nevada, residing in the city of San Francisco, state of California.”

The verification, it will be observed, was made in the state of California: The words “ this state,” as they occur in the body of the affidavit, strictly considered, refer back and relate to the words “ state of California” as their antecedent. But the affidavit is appended to the statement, -which purports to contain a list of the property of the defendant in Lander county, and in the state of Nevada, and the number of miles of track in the counties of Washoe, Lyon, Churchill, Humboldt, Lander, Eureka and Elko; and the affidavit declares that it is made in pursuance of an act of the legislature of the state of Nevada. Evidently it was intended to verify the contents of the statement relating to property in the state of Nevada, and this intention is so clear that we think the instrument should be received in accordance with its manifest intent, and not defeated by a strict grammatical construction.

We are now brought to the question whether the fact that the statement was delivered to the assessor should have appeared upon the records of the board of equalization. The statute provides that the clerk of the board of county commissioners ‘ ‘ shall keep a full and complete record of all the proceedings of the board, and all their proceedings shall be entered on the records.”

The reason that the record must show that a complaint has been made concerning the valuation of property is that the making of a complaint is a proceeding before the board. But the delivery of the statement by the property owner to the assessor is not in any sense a proceeding of the board. It is a matter entirely outside of the board and between parties foreign to it. It is certain that the board is not authorized to reduce the assessment of one who has neglected to make the .statement required by the statute. But suppose the fact existed, although the board were entirely ignorant of it, would not a reduction made under such circumstances be good ? We have no doubt it would.

Appellant further assigns as error the refusal of the court to grant a non-suit, and its refusal to give certain instructions.

The court was clearly right in refusing the non-suit. The instructions will not be considered, because no exception was taken to the refusal to give them.

Judgment and order overruling motion for new trial reversed ■and cause remanded.