Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-08-30

OPINION
By Massey, J.
1t is shown by the petition that pur-
suaut to an Act OF the Legislature, APP
proved February II, 1873, Lincoln County
issued and delivered certain bonds to one
Harry |. Thornton; that the Petitioner
was and is the owner and holder of said
bonds; that said bonds nor any part of
them, have not been paid, and that the
interest thereon from the date Of nnatur-
lily to first day of January, 1899, amount
ing in the aggregate to S@6D.Oo, Is Also
due and unpaid. 1t is also shown that
the Respondents as the Board OF County
Commissioners OF said County, have re-
fused aud neglected to levy tie special
tax provided for in said Act for the pur-
pose of creating Il fund for the payment
OF said bonds and the interest due there
ON.
To the petition the Respondents have
answered in effect admitting the material
averinents therein, but alleging a. a de
Tense thereto that stree the year 1880 and
up TO the year OF 1895, tie Respondents
have not levied or collected any Interest
tax 10, the payment due OF said BOMBS
uuder the provisions of the Act of 1913;
that of the proceeds of the tax levied for
interest on The outstanding bonds OF said
County in 1888 there remained in the IN
terest fund of said County up /" 1894 the
sum of $4,000 applicable 10 the payment
of said bonds and interest; that III March,
1891, the sum of $4,000 of SAID sum was
paid out upon interest coupons then pre-
scented, leaving a taiance in said fund of
$1,000. That the cause Of action set forta
in the petition did no. accrue to the hold
err of said bonds within six years i'm
mediately preceding filing the petition.
and therefore the Statute of Limitations
applies against the bonds aud any inter
est alleged TO be due thereon since the
date of maturity.
The fact, stipulated are tina from 1885
TO 1896 the Board of County commission
ers did not levy or collect q ,ax provided
for in Section s of the Act, approved Feb
ruary II, 1873, Statutes of Nevada, 1873
p. 54) nor did they levy any tax during
said years for said bonded Indebtedness
or any part thereof; that of the levy o.
1885 the sum of $4,000 remained in the
. interest fund until March, 1894, wher
$4,000 thereof was paid out upon the c"u
pons of said bonds; that the sun collect
ed from the tax levy Of 1896, 1897 and 1872
amounted annually to about tn
sum of S240J.0O, and was consumed il
1 paying coupons ui sud bonds which ana
tured on JauuA.H st. 1888 and prio
thereto: that no interest maturing o.
= Petitioners bonds subsequent to Janu
airy LIST, 1883 has been paid. and NO mean
exist for their payment unless the Res
~pondents can be required to levy an
collect a tax provided for in The Act c
1873.
Practically the same question was pr,
- scented to and decided by this Cour i
the action Of the State Elk. Rel. Davis, V
The Board of County Commissioners
. Lincoln County, % Nevada. 262. Couns
n for Respondents seeks i'll his brief to di
- tinguish that case from the case at ba
claiming that the presentation of tho CO
pons under the Act of 1877 created . ne
). contract ~ to the coupons alone. v
fail to note the distinction made. E
Section S Of the Act Of 1878, it Is provide
"a that in addition to the ordinary taxes I
County proposes there shall be for t
st year 1873 and annually thereafter un
the principal and interest of said bon
a -. shall be fully previned fer, levied a
collected a special tax to be called the
terest tax of forty-fvs cents on each o
49,; hundred dollars Of taxable property
the County. Tho fund derived from Il
tax shall be applied only to the payne
Of the interest accruing upon said bon
provided that should said funds Turn
surplus over and above what may
required for the payment of said inter
such surplus shah be turned over :
8 paid INTO the sinking fund provided
by Section 10 of the same Act. Sect
10 created a sinking fund into ~h
should be paid any and all surplus Of
veil interest fund aforesaid, and required t
hat each of the payments should he contln'
tx until the sinking fund should be 81
on cisnt for lhe pay ment Of the princi
hey and interest Of the bonds.
,oks It will therefore be observed that
t Of Act authorizing the issuance Of the DO
nryj provides a Speclai iuDu w WHICH 'heh
punt or could look only for the paymen
y Of the interest and principal. That there
& as no other fund provided for by law Gu
which payment Of these bonds or any
, terest thereon can be made. In the
guage Of tho Court in The State VS..
Commissioners, above cited, A lonI
!, the tax was being levied and eoliet
thara ,vas no occaaieD for him to bl
!, an action, and if he had it sesms
a probable it could not have been m
= tanned had the proper defense been nj
y but when the money war collected
would be entitled to it; then his cause
s action would be fully ripe and il
prosecuted within the statutory Pc
Il. would doubtless be barred. If
al liS ~ u yx&ll