State v. Ernst

• Decision Date: 31 May 1901
• Citation: 65 P. 7,26 Nev. 113
• Parties: STATE v. ERNST et al.
• Court: Nevada Supreme Court

65 P. 7

26 Nev. 113

STATE v. ERNST et al.

Supreme Court of Nevada

May 31, 1901

Appeal from district court, Nye county; A. L. Fitzgerald, Judge.

Action by the state against Ernst & Esser and others for delinquent taxes. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

W. D Jones and Trenmor Coffin, for appellants.

F. L Butler, Dist. Atty., P. W. Bowler, and Peter Breen, for the State.

MASSEY C.J.

This is the statutory form of action to recover a judgment for taxes alleged to be delinquent in Nye county for the year 1897. The verdict of the jury and the judgment of the court were for the respondent. This appeal was taken from the judgment and from the order denying the motion for a new trial. A great number of errors have been assigned, but it is necessary to consider and determine one only, and that one presents the question of the validity of the action of the board of county commissioners of said county acting as a board of equalization, raised by the answer and proof. It appears that the appellants Ernst & Esser, a co-partnership, by George Ernst, a member thereof, returned in the year of 1897 a statement of the taxable property of said firm to the assessor of said county, upon which, and apparently other sources of information, the assessor made an assessment against that firm for that year, and carried the same upon the assessment roll. On the 22d day of September, 1897, the board of equalization made an order to the effect that the Monitor Land & Live-Stock Company, one of the appellants herein, a corporation organized and existing under the laws of the state of California, be added to the assessment list of Ernst & Esser, and directed the assessor to add to the assessment of Ernst & Esser and the said Monitor Land & Live-Stock Company certain lands and personal property described therein, including 10,000 head of sheep at $1.50 per head, and certain other described land owned by one M. S Eisner. It appears from the assessment roll that the order was literally complied with. Prior to this action, but on the same day, it appears that witnesses were called before the board, sworn, and examined as to the ownership of the sheep and it was shown by their testimony that said sheep were owned by the Monitor Land & Live-Stock Company. It further appears, and is not disputed, that the Monitor Land & Live-Stock Company had no interest in, or claimed any in, the property included in the statement of Ernst & Esser, and assessed by the assessor to said firm. It further appears that the Monitor Land & Live-Stock Company was the sole and exclusive owner of the sheep, and that neither the firm of Ernst & Esser nor M. S. Eisner had or claimed any interest in said sheep, other than such interest George Ernst may have had in the same as one of the stockholders of said corporation. It is not claimed or pretended that either the firm of Ernst & Esser or the Monitor Land & Live-Stock Company owned or claimed any interest in the land added to the assessment as the land of M. S. Eisner. Under these facts the jury returned a verdict for the gross amount of the tax against all appellants, and judgment was rendered thereon accordingly. The appellants contend that the order of the board of equalization of September 22d is absolutely null and void, and, if this contention is tenable, then the order and judgment should be reversed.

The board of equalization in this state is a creature of the statute. It possesses only limited and special powers, and in the exercise of those powers its action must comply with the provision of the statute creating it. It can only exercise such powers as are expressly granted. State v. Board of Washoe Co. Com'rs, 5 Nev. 319; State v. Ormsby Co. Com'rs, 6 Nev. 95; State v. Central Pac. R Co., 9 Nev. 89; Id., 21 Nev. 270, 30 P. 693. It is made the duty of the county assessor by our statute to ascertain by a diligent inquiry and examination during a certain period of each year all real and personal property in his county subject to taxation, to determine its true cash value, and list and assess the same to the person, firm, corporation, association, or company owning it, and in certain contingencies he may assess the same to unknown owners. Comp. Laws, § 1084. The assessor is also required to prepare a tax list or assessment roll containing certain matters, and, when so prepared, and verified by his oath, he is required to turn the same over to the clerk of the board of county commissioners for the subsequent action of said board sitting as a board of equalization. Comp. Laws, §§ 1093, 1095, 1096. A subsequent section (section 1098) specifically defines the powers of the board of equalization. It declares that: "The board shall have power to determine the valuation of any property assessed and may change and correct any valuation either by adding thereto or deducting therefrom such sum as shall be necessary to make it conform to the actual...