Argument for Appellant.

October, 1871, declaring the action of the board of equalization in reducing the assessment of appellants for 1870 void for want of jurisdiction was based on the fact, as it appeared in that case, that no statement had been made by appellants to the assessor within the time prescribed by law. But if in this case now at bar it appeared from the evidence that the statement of appellants to the assessor was made "in the manner and within the time prescribed by law," then the board had jurisdiction; and if the board did equalize and reduce the assessment, and appellants paid the full amount of the taxes so equalized, then the verdict should undoubtedly have been for appellants. The evidence was not only sufficient to base this instruction upon, but it was sufficient to prove affirmatively every issue of fact which the instruction proposed to submit to the jury. The judgment of this court in the certiorari case, which is relied on by respondent as an estoppel on this point, was, first, not between the same parties; and, second, upon an entirely different state of facts.

V. This action is barred by the statute of limitations.

The cause of action accrued in December, 1870. (Comp. Laws, volume 2, 3153.) The complaint was not filed until more than three years thereafter. This is "an action upon a liability created by statute," and is barred in three years. (Comp. Laws, volume 1, 1031.) It applies as well to actions brought in the name or for the benefit of the State as to those brought by private parties. (Comp. Laws, volume 1, 1034.) The only answer made to this defense in the court below was that one of the appellants, viz., the Central Pacific Railroad Company, was a non-resident, having its principal place of business in California. It is doubtful if the record shows this fact; but if it does, this case is not within the rule that stays the running of the statute against one out of the State. The reasons given by this court in The Chollar-Potosi Mining Company v. Kennedy (3 Nevada, 372) particularly apply to this action. It is essentially a proceeding in rem. The tax is against the property. The

Argument for Appellant.

State finds the property within her borders, and she levies' a tax on it. It matters not who is its owner, and his absence from the State does not delay proceedings to enforce the tax. The statute expressly provides that when the owner is absent the summons need not be served on him at all. In such a case the summons is served by posting it on the land; and the district attorney merely publishes a general notice in a newspaper that suit has been commenced. (Comp. Laws, 3155.) There is no reason, therefore, why the statute should not commence running when the cause of action accrues. Moreover, a corporation having the principal part of its property and business in one State, under the charge and in the possession of its agents and officers there, is not a non-resident with respect to that property within the meaning of the statute simply because its chief corporate officers reside in another State. And then, the action as to the other defendants, viz., the property, is certainly barred. But if there is no longer a charge against the very thing upon which the tax was levied, is not that the end of the whole matter?

VI. The court erred in refusing instructions No. 10 and 11 asked by appellants, and in refusing to admit in evidence the order of the board of commissioners made December 11, 1871.

That order was made in pursuance of an agreement between the appellant corporation and the board, that if the former would pay a certain large sum of money to the county treasurer the latter would not authorize the district attorney to commence any suit for taxes for the years 1870 and 1871. The district attorney consented to and advised it. Appellant paid the money upon the sole consideration that the order should be made.

The board had full power to make the order and appellant the right to rely on its validity. The law affords no opportunity for the glaring breach of good faith now sought to be perpetrated. The statute gives to the commissioners power to control "the prosecution or defense of all suits to which the county is a party." (Statutes 1865, page

the

Argument for Appellant.

259, subdivision 12.) This provision evidently refers to all cases where the county is a real party in interest, although some statutory provisions require them to be brought in a particular form by which the county does not appear as a nominal party. Thus all suits for taxes-whether for county or State or both-are required to be brought in the name of the State; but that suits for taxes, although commenced in the name of the State, were intended to be controlled by the commissioners clearly appears from the statute of 1871, which provides that no suits for taxes shall be commenced by the district attorney except upon the order of commissioners. (Statutes of 1871, 93, 94.) Indeed, throughout the whole framework of the revenue system, the commissioners appear as the agents of the State within their respective counties for purposes of public finance. The machinery of the county governments is the only one provided for the assessment, equalization and collection of the State taxes. It has no special officers of its own for that purpose. It receives its revenues through the action of the county officials who are its agents in all matters relating to its collection. They, of course, cannot exceed their authority; but the statute expressly gives the commissioners the power which they exercised in making the order in question.

VII. The assessor increased the valuation of the road without any evidence or taking any testimony under oath, and his act in so doing was void. (Statutes of 1869, 184.)

VIII. The assessment was fraudulent.

The assessor fraudulently suppressed the first statement of superintendent Towne for the purpose of getting the appellant into a trap; and the testimony of Raphael shows the malice and evil intent which moved him.

IX. The Central Pacific Railroad is a national road, constructed by the general government for the purpose of carrying into execution its powers over postal, military and commercial matters, and is therefore not subject to State taxation. The court therefore erred in excluding from the evidence the statutes of Congress and of the States of California and Nevada referred to in the answer.

Argument for Respondent.

On this point we respectfully refer to the printed brief of counsel for appellant on file in this court, in the case of The State of Nevada v. The Central Pacific Railroad Company, 7 Nev. 99.

Robert M. Clarke and J. R. Kittrell, Altorney-General, for Respondent.

I. At the time the delinquent list was made out, the sum sued for was not shown to be due, the board of equalization having reduced the valuation of the defendant's property for taxation, which action of the board was reversed by this Court in the case of The State ex rel. Thompson v. The Board of Equalization of Washoe County (7 Nev. 83), after the delinquent list was made out, and when too late to put such delinquency upon said list.

The provisions of the revenue act requiring a delinquent list-indeed, all of the provisions of said act relating to matters between the assessment and suit-are directory merely, and therefore a failure to observe them is immaterial, and cannot constitute a defense against the payment of the tax. (2 Comp. L. 3156; State of Nevada v. W. U. Tel. Co., 4 Nev. R. 338.)

The matter relied upon is not a defense which is permitted to be made in a tax suit; it is forbidden by section thirty-two of the revenue law. (2 C. L. 3156.)

The authorities cited and read from by appellant's counsel were not in point, they being cases to determine the validity of a tax-title under a revenue system different from

our own.

II. The assessment was made in pursuance of, and in strict conformity to, the statute of 1869, 184-5, and the amendments thereto of 1873, 65, 66. Independently of these statutes, however, both upon authority and reason, the assessment is valid. Not the land covered by the right of way-the fee to which is in the United States, or in the State of Nevada-is to be assessed for taxation, but the railroad as a railroad, at the actual cash value, the same as other property. (2 Comp. L. 3125; People v. Fredericks, 48 Barb. 174; State v. C. P. R. R. Co., 7 Nev. R. 103.)

Argument for Respondent.

The defense is not one which is permitted by section thirty-two of the revenue act. (2 Comp. L. 3156.)

If

III. The only principle of valuation recognized by the revenue laws of this State is, that all property subject to taxation shall be assessed at its actual cash value. (2 Comp. L. 3125.) This principle was followed by the assessor. any error was committed it was in assessing the defendant's property at a sum greatly below its true value. It is not the true principle, as maintained by the counsel for appellant, that the defendant's railroad shall be assessed and valued as so many acres of land, or as so many miles of iron rails and ties, but that it shall be assessed and valued as a completed and operated line of railroad. (7 Nev. 103; 48 Barb. 174.)

The defense is not one which is permitted by the thirtysecond section of the revenue laws. (2 Comp. L. 3156.)

The defendant's property is not over, but is under value. The defendants, therefore, sustain no injury, and the mere method or principles of valuation which the assessor adopted are immaterial.

The case of Huntington v. The C. P. R. R. Co., which is chiefly relied upon by appellant's counsel, is not good authority, because not supported in reason nor upheld by authority, and because upon a revenue law differing in the most substantial particulars from our own.

IV. The judgment of this Court reviewing and reversing the action of the board of equalization in reducing the assessment of appellant was conclusive, and not open to be reviewed by the nisi prius court. The assessor's valuation was the only one which in the theory of the law existed. (7 Nev. R. 83.)

V. The statute of limitations is not applicable, and does not bar a suit for taxes. (1 Comp. L. 1031.)

A tax is not a "liability created by statute," within the sense and meaning of the law.

The cause of action did not accrue until after the decisjon in State v. Board of Equalization of Washoe Co., supra, and since that decision the three years had not elapsed when this suit was commenced.