Geo. B. Thatcher, Attorney-General, for Petitioner.
E. P. Carville, District Attorney of Elko County, for Respondent.
By the Court, McCarran, J.:
This is an original proceeding in mandamus. Petitioner, as controller of the State of Nevada, seeks to compel the respondent, as county treasurer of Elko County, to settle with petitioner for the state's portion of a certain sum of money collected by respondent, in his official capacity, from various property owners in Elko County.
It is set forth in the petition that during the latter part of the year 1914 the respondent, as county treasurer of Elko County, collected from various residents of Elko County the sum of $71,620.97, as the first installment of taxes for the year 1914. It appears that this entire sum was paid by the taxpayers of Elko County under protest, and because of such protest respondent refuses to apportion the moneys received by him in his official capacity, and has failed to settle with the state for its portion of the money thus collected.
Section 3748, Revised Laws of Nevada, prescribes that:
The county auditors of the several counties shall, on the first Monday of each month, mail or express, prepaid,
to the state controller, a statement of all state moneys in the respective county treasuries and from what sources derived, and the treasurers of the respective counties shall at all times hold themselves in readiness to settle and pay all moneys in their hands belonging to the state, whenever required so to do by order signed by the state controller and state treasurer, who are hereby authorized to draw such order whenever they deem it necessary. At the time the treasurer of any county shall pay to the state treasurer moneys required to be paid by order of the treasurer and controller, it shall be the duty of such county treasurer to deliver to the controller, a statement showing the amount so paid, and all sources from which received, and when received. The county treasurer shall, on the second Monday of June and December of each year, settle in full with the state controller, and send, in such manner as he shall designate, to the state treasurer, all funds which shall have come into his hands as county treasurer for the use and benefit of the state, taking therefor a receipt from the state treasurer, which receipt he shall cause to be filed with the controller. Before making payment, each county treasurer shall transmit to the state controller, by mail or otherwise, prepaid, a report from the county auditor, together with a duplicate thereof, stating specially the total amount collected, and the amount due the state from each particular source of revenue, the original of which shall be filed with the controller, who shall enter upon the same, and also upon the duplicate, the cash paid to the state treasurer and the amount of the expenses allowed; and the county treasurer shall thereafter file the duplicate report with the auditor of his county, whereupon the auditor shall balance the treasurer's account; and it shall be the duty of the auditor to furnish the county treasurer with the report, which such treasurer is required to produce in making his settlement with the state.
It is admitted by respondent that the provisions of the foregoing section, in so far as a settlement by him on the second Monday of December, 1914, and the second
Monday of June, 1915, is required, have not been complied with. The district attorney of Elko County, appearing for respondent, stipulated in open court that the proceedings be submitted upon the petition of the state controller and the brief of the attorney-general, with which he was in accord. We assume it is the position of respondent that, because the sum of money paid to him in his official capacity of treasurer of Elko County was paid by the respective taxpayers under protest, he cannot apportion the money, and hence cannot make settlement with the state.
Section 7 of an act entitled An act in relation to the public revenues, creating the Nevada Tax Commission, defining its powers and duties, and matters relating thereto, etc. (Stats. 1913, p. 175), provides:
Any property owner who has initiated a court proceeding for redress from any increased valuation of his property for assessment purposes, and who shall have paid his December installment of taxes thereon in full, may, on filing with the treasurer of the county a certificate of the clerk of any court that such issue is pending, pay his June installment in two separate payments, to wit: One payment in a sum which, when added to the December installment, shall represent the amount of taxes payable if computed on the valuation of the preceding fiscal year, plus the taxes on any improvements added since such preceding levy, and the other for the balance required to make up the full June installment; and said county treasurer shall receipt for the latter as a special deposit, to be held by such treasurer, undisbursed, until the court by its finding shall award it; and said property owner, in such case, shall not be liable for any penalty under the delinquent tax act; and if the court by its findings reduce the assessment valuation of such ...