Eureka weekly sentinel. [volume] (Eureka, Nev.) 1887-1902, 1890-03-22
No. 1915.
supREME COURT DECISION.
lanes q. Ford a. Co, Appellants. vs..
Charles McGregor, Respondent.
TBY MURPHY, J.l

principally OF sheep, in Eureka coun-
ty. They have no real estate in Nye
county. Merritt resides in California.
The home ranch, where appellant Ford
resides, is in Eureka county, and is the
principal place OF business OF the CO.
partnership. The sheep are controlled,
cared for and managed at their home
ranch. In the early Spring the sheep
have been annually driven away from
the home ranch in charge of herders
into Nye county to Craze upon the
public domain OF said county for pc
riod Of about two months, and were
then returned into the county oil Eu-
reka, where they remained in the
vicinity OF the home ranch. In Janu-
arv, 1889, 1900 head OF the sheep
were so driven into Nye county, tenn
porarily, and there grazed upon the
public domain until the early portion
OF March. when the herders, as was
the usual custom, commenced TO drive
them back into Eureka county, and
while the herders were so driving
them, the respondent, Assessor OF Nye
county, finding them at the commence
nient Of the assessment season, which
begins on the first Monday in March
and ends on the first Monday in Sep
tetnDer in each year, assessed them as
personal property subject to taxation
in Nye county for the year 1889. lie
demanded immediate payment to him
Of the amount OF taxes ON said per-
sonal property, and appellants refused
TO pay the same, or any portion there
Of, and notified respondent that said
property belonged in and was assessa-
Bile in Eureka county and was not as
sessable in Nye county. Thereupon
respondent seized upon and took pos
session OF 400 head of said sheep,
and sold sufficient thereof to satisfy
the claim for taxes and costs and ex-
penses Of the assessment, levy and
sale.
Appellants, in order to gain posses
sion of said sheep, were compelled to
pay, and did, under protest, pay the
sum of 1901, that being the amount OF
the tax, costs and expenses. The
sheep we're Immediately driven into
Eureka county, and were, thereafter,
there assessed, and the taxes due
thereon made a charge against the es-
tate Of appellants in Eureka county.
This suit was instituted to recover
the money paid under protest to re-
spondent.
The District Court granted nom
suit, and gave judgment in favor Of
the respondent upon the grounds ::
First, that upon the facts stated the
property was subject, under the law OF
this State, to taxation in the county OF
Nye. Second, that the respondent, in
assessing the property and collecting
the tax, acted judicially, and could
not, therefore, be held liable in this
action.
This case cannot, in our opinion, be
distinguished in principle from that of
Barnes VS.. Woodbury., IL New, 1888.
The rule therein announced as to the
situs Of personal property of the char
acter OF live stock must govern and
control this case.
The fact that in the Barnes case the
cattle were permitted to roam at will
and that they wandered from the
home ranch in Eureka county into the
county OF White Pine and there grazed
upon the public domain at various
times during the assessing period,
while in this case the sheep were
driven into the county OF Nye, and
there herded for a short period OF
time, does not make any difference in
the application OF the principles upon
which the situs OF the property for the
purpose OF taxation is to be- deter
mined.
The reasons stated in the Barnes
case in support of the conclusions
reached as to the situs OF the property
apply with equal force to this case
and are conclusive upon the question
The Court erred in deciding that the
property was assessable in Nye
county.
The Court also erred in holding that
respondent acted judicially and could
not be held personally liable.
In support OF the views expressed
by the Court, counsel for respondent
cites several New York cases, includ-
ing among others Barhyte VS.. Shep.
herd, 35 New York, 23S, and Swift VS.
City of Poughkeepsie, 81 New York
5l1.
The cases cited by counsel were re-
viewed at length in National Bank o.
Chemung vs.. City OF Elmira, and il
was therein declared that the doctrine
announced in those authorities ap
pied only to cases where the Assessor
had jurisdiction over the persons ant
property assessed, and erred, for in
stance, in assessing the property at toe
high rate, which was simply an er
ror In matter to be judicially deter
mined by them, and that the opinions
referred to in holding that the Asses
sor acted judicially, and not minister
ally, could not be considered as au
thoritles in protecting Assessors in the
assessment of property where they
had no jurisdiction, and that il such {
doctrine was iqferable from them they
should not be followed.
Church, G. j., in delivering the
opinion Of the Court, said: The
distinction is between an erroneou.
and an illegal assessment. The for
mer Is when the officers have power t
act, but err in the exercise of the
power; the latter when they have ne
power to act at all, and it does not ait
them to decide that they have.
Ii is argued that they have jurisdie
ton to determine what property is tax
able IN the town. This is a mistake
The Legislature determines that cues
uon, and the officers have no powel