Argument for Respondent.

The defense is not permitted under section 32 of the revenue law.

The defendant being a non-resident corporation, cannot plead the statute of limitations. (1 Comp. L. 1036; Olcott v. Tioga R. R. Co., 20 N. Y. 210; Robinson v. Imperial S. M. Co., 5 Nev. 44.)

The judgment in this case is against the personal defendant only.

VI. The commissioners of Washoe County had no legal power to make the compromise, and it was absolutely void. (State v. C. P. R. R. Co., 9 Nev. 88.)

VII. It is the duty of the assessor, and not the taxpayer, to put a valuation upon property for taxation; that the statement of the taxpayer is not conclusive upon, but in aid of the assessor merely. (48 Barb. 173; 4 Nev. R. 178; Id. 344.)

The provision of the act of 1869, 184, authorizing the assessor to summon witnesses, is not mandatory. It vests in the assessor a discretion merely, which he may exercise or not at his option. The assessor, nevertheless, must exercise a judgment in valuing railroad property for taxation. VIII. There is no evidence of fraud in the assessment. The acts relied upon do not constitute fraud in the law. No mere excessive valuation is sufficient to establish a fraud in the assessment. It must be shown that the officer acted corruptly.

The facts which are relied upon to support the defense of fraud are controverted by the testimony for the respondent. There being a conflict of evidence, the verdict of the jury and the order of the court denying a new trial should be affirmed. The defendant was not injured by the alleged fraud; and not being injured, the defense is not available. (Comp. L. 194.)

IX. Appellant's road is in no legal sense a national road; and not being so, the power of the State to levy a tax upon it is absolute. (9 Wallace, 579; 18 Wallace, 5.)

Opinion of the Court-Beatty, J.

By the Court, BEATTY, J.:

This is a suit against the corporation defendant and certain parcels of real estate described in the complaint to recover an unpaid balance of taxes assessed against the corporation in Washoe County for the year 1870, and to enforce against the property the lien created by law.

The plaintiff had judgment against the corporation, which has appealed, and seeks a reversal of the judgment upon the various grounds which we shall proceed to notice.

The first defense set up in the answer is in brief: "That 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."

Evidence offered in support of this defense was excluded at the trial upon the objection that it was immaterial, the defendant excepting. The question is thus presented, whether the matter alleged is a defense to the action. It is sufficiently answered by a simple reference to the case of Railroad Company v. Peniston (18 Wallace, 5), in which the Supreme Court of the United States has decided that a corporation sustaining substantially, if not identically, the same relation to the Federal government that this defendant does, is not exempt from State taxation. We are asked by counsel for appellant to review this question upon its original merits; but we are of opinion that when the court of last resort, ordained for the protection of rights held under Federal authority against State encroachment, has decided in favor of the State, its decision should be accepted as unhesitatingly as it must have been submitted to if adverse. We have therefore not felt called upon to consider the elaborate argument of counsel upon this head. The action of the court below is sustained upon the authority of the case referred to.

Taking the points relied upon by the appellant in their natural order, the next is: "That the taxes sued for were not assessed in the mode prescribed by statute, and for that reason the assessment is void."

Opinion of the Court-Beatty, J.

The total valuation of the real and personal property assessed to the defendant was $1,044,484, upon which was levied a total tax of $28,723.31. One parcel of real estate, valued at $817,500 and taxed $22,481.25, was described as follows:

"Fifty-four and one-half (541) miles of railroad known as the Central Pacific Railroad, including land owned by the right of way, embankments, cuts, culverts, bridging, grading, ties, rails, ribs, chairs, couplings, bolts, spikes, switches, turntables, etc., commencing at the westerly boundary of Washoe County and the State of Nevada, at a point on the Truckee River known as 'Camp Twenty-four;' thence following the general course of said river through the towns of Verdi, Reno and Wadsworth to a point four and one-half miles in an easterly direction from said town of Wadsworth, at the eastern boundary of Washoe County, making the entire length of said main line of railroad from the western to the eastern boundary of Washoe County fifty-four and one-half miles, at fifteen thousand ($15,000) dollars per mile, amounting to the sum of $817,500."

The above description was entered in the second column of the assessment-roll under the heading, "Description of Property." The figures expressing the valuation were placed in the third column under the heading, “Value of Real Estate or Possessory Claim and Improvements."

The specific objections to the sufficiency of this assessment are that "it does not describe the land covered by the right of way of defendant corporation by metes and bounds, or by common designation or name, and does not state the number of acres thereof, or the value per acre, or the location or township where situated, nor does it assess the improvements separately; but on the contrary, the land and superstructures are lumped together as one thing and described as so many miles of railroad, and the said pretended assessment is therefore void on its face."

To this it may be replied that our statute does not require a separate assessment or valuation of lands and improvements where both belong to the same owner, but on the

Opinion of the Court-Beatty, J.

contrary, expressly directs that both be valued together. Nor does it require the value per acre to be given. As to the description, we are of the opinion that, in point of fact, the land is very well described by its common designation or name, and, such being the case, it was not necessary, in order to comply with the statute, to give the metes and bounds also. The statute directs that one or the other of these two modes of description shall be employed, but does not require both. We are also of the opinion that the location of the property is clearly given in compliance with the statute; and, as it does not appear that the United States has ever surveyed any portion of Washoe County into townships, or (if another kind of township is meant by the statute) that Washoe County embraces more than one township, we cannot know that it was possible to give any township. So far, therefore, as these objections are concerned, they might be disposed of by saying that, in point of fact, they are without any foundation.

But the assessment is manifestly deficient in one particular. It does not give the number of acres of the land. The statute directs that the number of acres shall be given as near as can be conveniently ascertained. In view of this deficiency, it becomes necessary for us to give a broader examination to the questions presented.

Assuming, then, for the sake of the argument, that this assessment presents the various deficiencies specified, what is the consequence? It is claimed, in behalf of appellant, that the assessment is therefore absolutely void, and that it never became liable to pay the tax.

In support of this proposition a large number of cases are cited, which establish the general doctrine that to give validity to a tax-title, where no judicial proceedings intervene, every requirement of the law, whether substantial or merely formal in its character, and having the semblance of benefit to the taxpayer, ought to be strictly observed by the officers intrusted with the execution of what, in that case, is deemed a mere naked power, by the exercise of which is to be effected the involuntary alienation of an

Opinion of the Court--Beatty, J.

estate. Those decisions are based upon the strict doctrines of the common law in regard to the construction of naked powers and involuntary alienations.

As was pointed out in the case of The State v. W. U. Telegraph Co. (4 Nev. 347), they have no application to cases arising under our statute. We have abandoned the system which rendered such strictness of construction appropriate and necessary. We do not commit to merely ministerial officers the power of divesting estates of delinquents by following out a certain form of procedure. When an assessment has been made, the collection of the tax is enforced by means of a suit, and the taxpayer has an opportunity of resisting payment by showing that the assessment was fraudulent or substantially unjust. He is not at the mercy of ministerial officers, but may appeal to a jury against unfairness or oppression. A rule holding officers to a rigid compliance with every form of the law was not necessary in order to insure the safety of property. The considerations upon which the decisions referred to were based, are here totally wanting. Our revenue law has therefore expressly dispensed with the strictness with which, under the other system, assessors were required to comply with its provisions. By our revenue law the assessor and other officers concerned in the collection of taxes are directed to do a great many things; some of them designed for the protection of the taxpayer and others for the advantage of the State. These directions ought to be complied with as nearly as may be in every case, and any dereliction on the part of the officer is censurable, because it is his duty to comply with the law. But the failure of the officer to perform his duty strictly does not absolve the taxpayer, unless he is injured thereby. This is the necessary construction of the express language of the revenue law. Section 32 enumerates the defenses which are allowed in a tax suit, and excludes all others. By the terms of that section the answer is required to show not only that there has been a failure to comply with the provisions of the law, but also that such failure was fraudulent, and an injury to the person or property assessed.