State v. Ernst & Esser

The facts sufficiently appear in the opinion. 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 copartnership, 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 and 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 and Live Stock Company *Page 124 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 and Live Stock Company. It further appears, and is not disputed, that the Monitor Land and 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 and 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 and 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. Comrs.,5 Nev. 319; State v. Ormsby Co. Comrs.,6 Nev. 95; State v. Central Pac. R. Co.,9 Nev. 89; Id., 21 Nev. 270, 30 Pac. 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 *Page 125 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 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 cash value of the property assessed, whether said valuation was fixed by the owner or assessor, except that in case where the person complaining of the assessment has refused to give the assessor his list under oath, as required by this act, no reduction shall be made by the board in the assessment made by the assessor. * * * The recorder of the county shall be also present and attend on the board with an abstract of all unsatisfied mortgages and liens remaining on record in his office, arranged in alphabetical order, for which service he shall receive no compensation, and the board of equalization shall make use of such abstract and all other information that they can procure from the recorder in the recorder's office, or otherwise, in equalizing the assessment roll of the county, and may require the assessor to enter upon such assessment roll any mortgage or lien, or other property which has not been assessed, and the assessment and equalization so made shall have the same force and effect as if made by the assessor before the delivery of the assessment roll by him to the clerk of the board of county commissioners. * * *" (Comp. Laws, 1098.) Two powers are conferred upon the board by the provisions of this section: First, it is authorized to determine the true cash value of the property upon the tax roll as made by the *Page 126 assessor; second, to require the assessor "to enter upon such assessment roll property which has not been assessed." It can make but two changes in the roll as prepared by the assessor — change the valuation, and the necessary change required by the entry of property not assessed. The language used is plain and clear. No authority is given to the board of equalization, either expressly or impliedly, to add the name of the Monitor Land and Live Stock Company to the assessment of Ernst Esser, and thereby create a liability, as in this case, against the company, for property properly assessed in its owner's name, where the person whose name has been added by the order makes no pretense to the ownership of the property. It was, in effect, an assessment by the board of equalization of the Monitor Land and Live Stock Company for the property of Ernst Esser. It is neither pretended nor claimed that the Monitor Land and Live Stock Company ever owned or claimed any right, title, or interest in or to the property included in the statement of Ernst Esser for the year 1897; yet the order of the board, the verdict of the jury, and the judgment rendered thereon fix a liability upon the company for the taxes upon the said property. Again, the board, by its order, directed the assessor to add to the assessment of Ernst Esser and the Monitor Land and Live Stock Company certain real and personal property, including the 10,000 head of sheep. It does not appear that the company was assessed, except by the void action of the board, above referred to. The board had the evidence before it that Ernst Esser did not own the sheep; yet the order, the verdict of the jury, and the judgment rendered thereon fixed a liability upon Ernst Esser for the taxes upon the property of the company, which could not have been properly assessed to them by the assessor. If it can be claimed that under the last clause of Section 1098, quoted and cited above, the board of equalization possesses the power to assess property which has not been assessed by the county assessor, it does not necessarily follow that it has the power to assess it to a person who is shown not to be the owner before such assessment is made, and thereby create any personal liability for the taxes thereon. *Page 127 The fallacy of any such assumption is illustrated by the order of the board of equalization, by which it arbitrarily directed the assessor to add to the amended assessment list of Ernst Esser and the Monitor Land and Live Stock Company certain "lands owned by M. S. Eisner." If this method of procedure is upheld, then can the burdens of taxation be made unequal, and persons and property can be held for taxes which are neither in law nor equity a charge against either. It is made the duty of the assessor to assess all property to the person, firm, etc., owning it, except in a certain contingency, when he may assess it to unknown owners. It has been held by the courts of other states under similar provisions that property must be assessed to the true owner, if known, otherwise the assessment is void; and this court has intimated that such is the rule of our statute. (State v. Central Pac. E. Co., 21 Nev. 256,30 Pac. 686; Reese v. Sherrer,49 N. J. Law, 610; Kelsey v. Abbott, 13 Cal. 609;Blatner v. Davis, 32 Cal. 328;People v. White, 47 Cal. 617;Grotefend v. Ultz, 53 Cal. 666;Hearst v. Egglestone, 55 Cal. 365;Bosworth v. Webster, 64 Cal. 1,27 Pac. 786; Grimm v. O'Connell, 54 Cal. 522;Crawford v. Schmidt, 47 Cal. 617;Brady v. Dowden, 59 Cal. 51; 25 Am. Eng. Enc. Law, 213, 214.) It therefore seems clear to us that the board of equalization exceeded its power in making the order of September 22, 1897, and that its action in the premises is absolutely void. It appears from the record that the appellants Ernst Esser have tendered (and kept good their tender) the amount of taxes due upon the property assessed to them, and that a retrial of the case will not be necessary. We have, therefore, not determined the many other questions argued and submitted, deeming it unnecessary so to do. For the reasons given, the judgment and order appealed from will be reversed. BELKNAP, J.: I concur. FITZGERALD, J., being disqualified, did not participate. *Page 128