State v. Shaw

• Decision Date: 04 April 1892
• Docket Number: 1,344.
• Citation: 29 P. 321,21 Nev. 222
• Parties: STATE v. SHAW et al.
• Court: Nevada Supreme Court

29 P. 321

21 Nev. 222

STATE v. SHAW et al.

No. 1,344.

Supreme Court of Nevada

April 4, 1892

Appeal from district court, Eureka county; A. L. FITZGERALD, Judge.

Action by the state against D. S. Shaw and others to collect delinquent taxes. Judgment for defendants. Plaintiff appeals. Reversed.

Rives & Judge and Thomas H. Wells, for appellant.

Peter Breen and Thomas Wren, for respondents.

BIGELOW J.

The respondents object to the consideration of the order changing the place of trial from Nye county to Eureka county, upon the ground that such an order can only be reviewed upon a direct appeal therefrom. Under our present practice act, however such an order is not now appealable. Gen. St. § 3352. It is properly brought before the court upon an appeal from the judgment, under section 3360, as an intermediate order involving the merits and necessarily affecting the judgment. When Table Mountain G. & S. Min. Co. v. Waller's Defeat S. Min. Co., 4 Nev. 218, was decided, the statute made such orders appealable. The objection is therefore untenable.

2. After careful consideration, we are of the opinion that the sections of the practice act providing for a change of the place of trial are not applicable to actions to recover delinquent taxes. Such an action is against both the personal defendant and the real estate assessed. As to the latter, it is an action in rem to enforce a lien for the taxes. Summons is served upon it, and all persons having any interest in it must, without further notice, come in and make defense, or they will be precluded from so doing. For the venue of such an action, title 2 of the practice act makes no provision, except the general one in section 20, that all other cases not previously enumerated shall be tried in the county where the defendant resides. In tax actions one of the defendants--the real estate--must always be situated where the assessment is made, and where Gen. St. § 1105 provides that the action may be brought. The same section further provides that the jurisdiction of the court shall be determined solely by the amount of delinquent taxes, without regard to the location of the property or the residence of the persons to whom the property was assessed. While not clear or happily expressed, this indicates an intention to exclude, in tax cases, the ordinary rules concerning venue. We are further strengthened in this view by the fact that there can seldom or never be any sufficient cause for changing the place of trial of such an action. It is essentially local in its nature. The property and the books and records upon which the validity of the tax depends are in that county, and generally the witnesses will be found there. A change of the place of trial must necessarily involve the county in considerable additional expense, which would often be greater than the amount of tax involved, and of which expense much could never be recovered from the defendants. Contemporaneous construction is also entitled to weight. Our revenue law, copied from a California statute, has been in force here over 30 years, and yet, so far as our knowledge goes, no attempt has ever been made, either here or in California, to change the venue of such an action. While the record on appeal is very defective upon this point, it sufficiently appears that the place of trial was changed over the plaintiff's objections, and its motion to remand the case was overruled. Under the circumstances, this motion should have been granted. Rogers v. Watrous, 8 Tex. 62.

3. The evidence in the case shows that the defendant Shaw, in 1889, owned and resided upon a ranch in Eureka county, about 12 miles north of the Nye county line. He was the possessor owner of several pieces of real estate in Nye county, known as "ranches," upon which were situated cabins and corrals used in the care and management of a band of cattle running in their vicinity. No one, however, lived upon these places, and the cattle were cared for and managed from the ranch in Eureka county. That year the defendant was assessed in Nye county upon his possessor claims to the ranches, valued at $600, and for 1,000 head of cattle, valued at $11,000. This action is brought to recover the taxes due thereon. The cattle were also assessed, and the taxes paid, in Eureka county. The defendant admitted that the sum of $21 was due and owing upon the real estate, but notwithstanding this admission judgment was rendered in his favor. No reason is stated, and we are unable to conjecture, why the state was not entitled to judgment for that amount, in any event.

The principal contention, however, is concerning the cattle; the defendant claiming that as his home ranch, from which the cattle were cared for and managed, was in Eureka county, they were, under the law as held in Barnes v. Woodbury, 17 Nev. 383, and Ford v. McGregor, 20 Nev. 446, 23 P. 508, only subject to taxation in the latter county. But we are of the opinion that there is a broad and plain distinction between these cases and the one at bar. Subject to the constitutional requirement that the rate shall be uniform and equal, the legislature has full control over the assessment and taxation of property. "It may be assessed and taxed in the county where it is situated or elsewhere, and the taxes made payable where the assessment is made, where the property is situated, or such other place as the legislative will may have directed." Welty, Assessm. § 51; Dubuque v. Railroad Co., 47 Iowa, 196. The power of the legislature, for purposes of taxation, to separate the situs of personal property from the owner's domicile, is undoubted. Tappan v. Bank, 19 Wall. 490; Swallow v. Thomas, 15 Kan. 68. Generally, in other revenue systems, it is provided that personal property shall be taxed where the owner resides, if he be a resident of the state. But, in pursuance of this authority to regulate the matter as it may please, our legislature has adopted the more equitable rule of taxing it where it is located, where it receives the protection of the law, and where the expense of such protection must be incurred. With the exception of money, gold-dust, and bullion, which may, at the owner's option, be assessed where he resides, the assessor, without regard to the owner's residence, is to ascertain and assess all the property in his county subject to taxation. Gen. St. §§ 1082-1084. This being the system of assessment and taxation established by the legislature, it must be followed, without regard to whether we consider it the best that could be adopted. The only duty of the court is to ascertain and declare the legislative will, whatever it may be. St. Louis v. Ferry Co., 11 Wall. 429.

It being, then, the legislative will that personal property shall be assessed in the county where it is situated, without regard to the owner's residence or any other consideration, the only question that is left in any case is to determine where it is so situated. This is the question that was...