State ex rel. Hobart v. Huffaker

By the Court, Beatty, J.: This is a proceeding by mandamus against the treasurer of Washoe county to compel him to pay into the state treasury the s-um of $5554.28, paid to him by the Central Pacific Railroad Company, under the provisions of “An act prescribing an additional penalty for non-payment of taxes in certain cases after suit,” approved March 7, 1873, which reads as follows: “Section 1. In all suits for the collection of delinquent taxes originally brought in the district courts, where the amount exceeds $300, the complaint and summons shall demand, and the judgment shall be entered, for twenty-five per centum, in addition to the tax, ten per centum thereon and costs provided in the act to provide revenue for the support of the government of the state of [303] Nevada and the acts amendatory thereof; and such tax, penalty and costs shall not be discharged, nor shall the judgment therefor be satisfied, except by the payment of the tax, original penalty, costs, and the additional penalty herein prescribed in full.” The sum of $5564.28, above specified, is the twenty-five per centum additional penalty on the sum of $22,257.13 which was recovered from the Central Pacific Pailroad Company in a suit for taxes assessed in "Washoe county, and the question is whether it belongs to the state or to the county. The relator contends that it belongs wholly to the state, and the respondent that it belongs wholly to the county. The question is one of statutory construction merely, and we think that both parties are partly in the right and partly in the wrong. This penalty of twenty-five per centum is assessed upon the aggregate amount of taxes due to the state and county, of which five-thirteenths were due to the state and eight-thirteenths to the county. The law makes no express disposition of the penalty, and it becomes a question of construction what disposition of it the legislature intended. We think the penalty is to be regarded not only as a punishment to the delinquent, but also, and principally as a compensation to the state and county for the delay of payment, and the consequent derangement to their finances. So regarded, the obvious conclusion' is, that the penalty follows the tax, in this case five-thirteenths to the state and eight-thirteenths to the county. The penalty of ten per centum, (C. L. 3148) to Avhich this penalty of twenty-five per centum is additional, is expressly given to the counties, and from that circumstance the relator argues on the principle of expressio unius, etc., that this penalty must go to the state, while the respondent comes to the exactly opposite conclusion that it must follow the express disposition of that to which it is additional. We think, however, that neither of these arguments, which to some extent destroy each other, is of as much weight as the consideration upon which we base our construction of the law above stated. Let the writ be made peremptory that the respondent pay over five-thirteenths of the amount claimed in the petition, viz. $5564.28.