such claim is founded. Formal pleadings shall in no case be required; but the issue shall be formed, heard and determined in the same manner as in actions before justices of the peace." There is no room here for construction. The language is clear, explicit, and unambiguous. The manner of exhibiting a claim founded upon a promissory note is by filing the note itself in the county court. The Illinois statute, from which much of our law concerning probate matters is taken, contains no provision whatever as to the manner of exhibiting claims, and the courts there hold that the filing of a copy of a note is a sufficient exhibiting of a claim based thereon. Wallace, Ex'r, v. Gatchell, 106 Ill. 315. But our statute is otherwise; and we hold that the manner, and exclusive manner, of exhibiting a claim of this character, is by filing in the county court the written instrument on which the claim is founded. Counsel for claimant do not seriously question this interpretation of the statute; but say that the requirement can be, and was, waived by the executor by reason of the facts which he offered to prove, and which are embodied in the rejected offer of proof to which we have already adverted. We cannot agree with this contention, under the facts, even if it were within the power of an executor to waive such an essential statutory direction. The claimant is supposed to know the law, and that it provides specifically how claims must be exhibited. The executor is the representative of the estate, and he could not properly accept employment from. or act as the agent of, the claimant, in presenting a claim against the estate for adjustment. If it be true that the executor knew of the existence of the note, or had it in his possession, and that the holder asserted it as a claim against the estate, or if the executor neglected to comply with the request of the claimant properly to present the claim and have it allowed, this furnishes no excuse for the claimant's failure to file his claim in the county court as the statute directs. Morse v. Pacific Ry. Co., 191 Ill. 356, 61 N. E. 104. If claimant has been injured by the executor's failure to carry out a supposed promise, the estate is not answerable therefor.

Under our statute not only may an executor or administrator object to the allowance of a claim, but the heirs at law. devisees or legatees, or creditors or others interested in the estate, may do so. The widow, in her own behalf, and as guardian for her minor child, objected generally to the allowance of this claim when the affidavit containing a copy of the note was filed in the county court. The statute expressly provides that formal pleadings shall not be required, and, in case of a contested claim, the issues shall be formed, heard, and determined in the same

manner as in actions before justices of the peace. It was not necessary, therefore, for the widow and guardian to specify the objections which she had to the allowance of this claim. Under this procedure, a plea of the statute of limitations, or that a copy, and not the note itself, was filed, could be orally interposed any time before, or at, the hearing. There was no waiver, therefore, by the widow and guardian of the filing of the note itself. If any hardship results to the claimant, it is due to his own negligence.

His contention that he was represented by the executor, and the executor did not make the objection, is no excuse whatever. If in allowing claims an executor can act in a dual capacity, when objection to its allowance was here made by the widow or guardian, he ought to have filed the note itself, because the general objection is broad enough to cover the particular objection that filing a copy is not the manner of exhibiting a claim which the statute demands. It follows that this claim was not exhibited, as our statute requires, within one year from the granting of letters testamentary, and therefore it is barred by our statute of nonclaims, except as to property that may be subsequently discovered or inventoried by the executor. There is no claim that there is any such property of the estate.

The resolution of the first question, upon which the district court decided the case adversely to the claimant, is necessarily conclusive as to the second; for the contention that the claim is not barred by the general limitation statute rests entirely on the assumptio tion that it was properly exhibited in the county court by the filing of the note before the expiration of six years from its maturity. Since we hold that the note has never been exhibited at any time, not even at the hearing below, the claim founded thereon is barred by the general statute, as much more than six years have elapsed since the note became due.

Other questions, such as days of grace on demand notes, delivery of the note after its date, the alleged necessity for the formal continuance from term to term where a claim is not allowed or disallowed on the adjustment day, and for a claim to be both properly exhibited and allowed within the period prescribed by the statute of nonclaims, not being material to our decision affirming the judgment, are not considered.

Being of opinion that the statute of nonclaims, as well as the general statute, operates as a bar of this claim, the judgment of the district court, which was in accord therewith, is affirmed. Affirmed.

STEELE, C. J., and GABBERT, J., concur.

(29 Nev. 487) STATE V. CARSON & COLORADO RY. CO. et al. (No. 1,720.)

(Supreme Court of Nevada. Oct. 11, 1907.) 1. TAXATION-INCREASING VALUATION-STATUTES CONSTRUED.

Act March 16, 1901, p. 61. c. 50. § 1, as amended by St. 1903, p. 95, c. 69, requires the state board of county assessors to establish a valuation of railroads, etc., every January, and provides that the county boards of equalization may only equalize taxes where a valuation has not been fixed by the state board. Under Comp. Laws. § 1984, between the date of levy of taxes and September 1st the county assessor must ascertain the value, etc.. of, and list and assess all taxable property. Under section 1081 all property in the state is taxable except, etc. Section 1079 makes every tax a lien against the property assessed, and provides a lien shall attach upon land for personal taxes upon the day taxes are levied in each year, on all property then in the state, and all other property when ever it reaches the state. Held, that all property must be assessed which comes into existence either as additions or otherwise between the first Mondays in March and September of each year, if it has not been taxed for that year; that, if property assessed by the state board in January enhances in value because of betterments before the first Monday in September, the assessor should assess the property as assessed by the board plus the increased valuation, and, if he fails to do so, the county board may equalize the property at its full cash value, the inhibition upon that board equalizing the valuation of property fixed by the state board applying only when such property remains in substantially the same condition, and so a county board could increase the valuation of railroad property, where between the date when the state board fixed the valuation and the date of the county board's meeting in September part of the road was changed from narrow to broad gauge. 2. SAME-DEFENSES.

If, in a suit to recover disputed taxes, de

fendant desires to raise an issue of excessive valuation, he should prepare his answer under Comp. Laws. § 1124, providing what defenses may be set up in tax suits.

3. SAME-NOTICE-DIRECTORY PROVISION.

Comp. Laws, § 1098, providing for the publication of notice of the increased valuation of taxable property by a board of equalization, is merely directory.

4. APPEAL — REVIEW FINDING.

CONCLUSIVENESS OF

Under the rule that a finding supported by evidence will not be disturbed, the trial court's findings in a tax suit that the property taxed was defendant's and that proper notices were given a railroad company of an increased valuation of its property is conclusive.

5. TAXATION-DEFENSES-PLEADING.

Since Comp. Laws, § 1124, in defining what defenses may be made in tax suits, when title to the property is denied, provides that defendant must deny all interest at the time of assessment, a defense that the property belonged to another when the county board of equalization increased the valuation was not available where defendant failed to allege that at the time of assessment the property was not its property.

6. SAME.

Though Act Feb. 25, 1893 (Laws 1893, p. 48, c. 48. $ 26), providing that the clerks of boards of equalization shall enter upon the assessment rolls all changes made by the boards, is seemingly in conflict with the statute directing the auditors to place the changes on the rolls, the act, being the latest expression of the legislative will, it is proper for the clerks to enter the changes.

Appeal from District Court, Esmeralda County.

Action for disputed taxes by the state of Nevada against the Carson & Colorado Railway Company and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.

Geo. D. Pyne, for appellant. J. F. Douglas, W. J. Henley, and C. E. Mack, for respondent.

SWEENEY, J. This is an action brought by the state of Nevada, plaintiff, against the Carson & Colorado Railway Company et al., defendants, for disputed taxes alleged to be due to plaintiff on the property of said' de1905, the state board of county assessors met fendants for the year 1905. In January, with the state board of revenue in Carson City, Nev., in accordance with an act of the Legislature of the state of Nevada (St. 1901, p. 61, c. 50, and as amended by St. 1903, p. 95, c. 69), and fixed the valuation for the purpose of taxation upon the main line of the Carson & Colorado Railway Company at $3.500 a mile, and the side track at $1,250 a mile. Thereafter, when the county assessor of Esmeralda county came to assess the railroad property of defendants, he placed the same valuation thereon as fixed by the state board of county assessors. When the county board of equalization of Esmeralda county met as required by law in September, it raised the valuation on the 88 miles of the 146 odd miles of said railroad property of said defendants in Esmeralda county, which had been broad gauged, to $8,500 a mile on the main track and $2,500 a mile on the side track, making a total raise in the valuation as fixed and assessed by the state board of county assessors and county assessor of $489.150. This raise in valuation by the county board of equalization on the property of defendants gave rise to the present cause of action, which said action was duly tried before the district court of the First judicial district in and for the county of Esmeralda, and resulted in a judgment in favor of the state of Nevada against the defendants for the sum of $36,335.43, taxes and penalties, together with costs of suit. From an order of the lower court denying a motion for a new trial, and from said judgment rendered in this case, defendants appeal, alleging that said judgment is erroneous for the following

reasons:

First. That because the state board of county assessors fixed the valuation upon said railroad of defendants at $3,500 a mile for the main line and $1,250 a mile for the side line, and that the county assessor had assessed the property at the same figure, the county board of equalization had no authority to add to the valuation as fixed by the state board of county assessors and as assessed by the county assessor.

Second. That no legal notice was given to the Carson & Colorado Railway Company by

the county board of equalization before the increased valuation was added to its lines, nor were they given an opportunity to appear before said board and show cause why such raise should not be made.

Third. That the changes and additions made in the assessment roll were not made by the person legally authorized to make them, but were made by the clerk of the board of equalization, when, as alleged, the statute requires the auditor to make any additions to said assessment roll after they have been made by the county board of equalization.

Fourth. That at the time said increase in the valuation of the property assessed to the Carson & Colorado Railway Company was made by the county board of equalization the property did not belong to the Carson & Colorado Railway Company; the same having been sold to the Nevada & California Railway' Company.

Fifth. That after the lien attaches upon property in this state, which is on the first Monday in March, as alleged by counsel for appellants, the enhanced value of property cannot be assessed; that whatever property is subject to taxation must be in existence

or before the first Monday in March. Sixth. That the assessment of property in this state fixes on the first Monday in March at the time of the levy of the tax, and that property must be assessed at the valuation of this date, and, further, that no property coming into existence or into the state after this date can be placed on the assessment roll for that year.

Seventh. That the defendants paid to the county treasurer of Esmeralda county the sum of $14,886.94, the amount due on said valuation of said road as fixed by the state board of county assessors and county assessor, which said sum was refused by the county treasurer as payment in full for all taxes due to said plaintiff from said defendants.

It is seriously and urgently contended by counsel for the respondent on this appeal that the act of our Legislature to provide for a more uniform valuation and assessment of property in this state as approved March 16, 1901 (St. 1901, p. 61. c. 50), and as amended by the Legislature of 1903 in the statutes of that year (page 95, c. 69), which said acts created the state board of county assessors and which limit the powers of the county boards of equalization, are, for many reasons assigned. unconstitutional, and which contention, if true, asserts respondent's counsel, would thoroughly justify said board of equalization in adding the increased valuation in question to the assessment roll. After very careful consideration and study of the law involved in this case, we have concluded that it will be unnecessary, for reasons hereafter disclosed, to pass upon or consider the constitutionality of the acts in question.

It appears from the record in this case that the state board of county assessors convened in January in accordance with law, and placed a valuation on the main track of defendants at $3.500 a mile and on the side line at $1,250 a mile. At this time of the year, be it remembered, said Carson & Colorado Railroad was narrow gauged; that thereafter the county assessor assessed the said railroad property at the same figure as fixed by the state board of county assessors. In September, when the county board of equalization convened, they raised the valuation on the 88 miles of broadgauged road of defendant to $8,500 on the main track and $2,500 on the side track. During the intervening period, between the date of the fixing of the valuation by the state board of county assessors and the date of the convening of the county board of equalization, 88 miles of the 146 odd miles of the railroad of said defendant in Esmeralda county was changed into a standard, broad-gauged road. which materially enhanced the value of said property of said defendant; this necessarily being so because of the fact that in broad gauging a narrow-gauge road new rails of a heavier weight, new ties, new culverts, and, in fact, all materials used in the replac ing of the narrow gauge material are of a heavier and superior value. Section 1 of an act of our Legislature entitled "An act to amend an act entitled 'An act to provide for a more uniform valuation and assessment of property in this state,' approved March 16, 1901." which is the section in question, which is urged by appellant as inhibiting the county board of equalization from equalizing any property upon which a valuation has been placed by the state board of county assessors, and which section, among others, is alleged to be unconstitutional by the respondent, reads as follows: "The county assessors of the several counties of this state shall meet for a period not exceeding ten days in the office of the Governor at Carson City, Nevada, on the second Monday in January of each year, and shall at such meetings establish a valuation through the state of all railroads and rolling stock of such railroads, of all telegraph and telephone lines, of all electric light and power lines, of all cattle and sheep, and upon all other kinds of property which in the judgment of said assessors can be valued and assessed more uniformly by said assessors, acting collectively, than by the several county assessors, acting separately; provided, that in fixing such valuation the location and situation of such property shall be considered; and, provided further, that nothing herein shall be considered as to impair the right of the board of equalization of any county to equalize taxes on all property, the valuation of which has not been fixed at the annual meeting of the county assessors as provided in this section; but the said county board of equalization shall not have the power to equalize any property upon which a valuation has been

placed by the said board of county assessors; provided, any taxpayer under the provisions of this act shall not be deprived of any remedy or redress in a court of law relating to the payment of taxes." St. 1903, p. 95. c. 69. Section 1084 of the Compiled Laws, pertaining to the assessment of property in Nevada, provides, among other things, that "between the date of the levy of taxes and the first Monday of September in each year, the county assessor, except when otherwise required by special enactment, shall ascertain, by diligent inquiry and examination, all property in his county, real or personal, subject to taxation, and also the names of all persons, corporations, associations, companies, or firms, owning the same; and he shall then determine the true cash value of all such property, and he shall then list and assess the same to the person, firm, corporation, association, or company owning it." Section 1081 of the Compiled Laws of Nevada provides that "all property of every kind and nature whatsoever, within this state, shall be subject to taxation," excepting certain property of widows, cemeteries, lodges, churches, and certain lands belonging to the United States, and other state and municipal authorities, mines and mining claims, under certain conditions. Section 1079 of the Compiled Laws reads as follows: "Every tax levied, under the provisions or authority of this act, is hereby made a lien against the property assessed, and a lien shall attach upon the real property for the tax levied upon the personal property, of the owner of such real estate, which lien shall attach upon the day on which the taxes are levied in each year, on all property then in this state, and on all other property whenever it reaches the state, and shall not be satisfied or removed until all the taxes are paid, or the property has absolutely vested in the purchaser under a sale for taxes." It is the theory of the law of taxation and revenue in this state that all tangible real and personal property shall be assessed each year once at its full cash value. We have found no authority in this state in conflict with the doctrine laid down in the case of State of Nevada v. Earl et al., 1 Nev. 397, wherein this court in referring to this theory said: "The true theory of the statute is that each piece of tangible real or personal property within the state between the first Monday of May and the first Monday of November, each inclusive, should be taxed once at its true value, and only once." Viewing these various provisions of our statutes bearing on taxation and the manner of assessment, we are of the opinion that there is no material conflict, and that all of these statutes can readily be reconciled. The railroad property of appellant when assessed by the state board of county assessors was a narrow-gauge road. The assessor of Esmeralda county at the time he made the assessment of this property assessed said property at the same valu

ation placed on it by the state board of county assessors, and in consequence his assessment, as far as it went, is valid. If the road had been changed from a narrow-gauge to a broad-gauge road at the time he made the assessment, it, or so much of it as had been broad gauged, under our construction of the law, should have been assessed, and it would have been his duty to have assessed the increased valuation in said road, or, in the event it was not broad gauged at the time he made his assessment, if the road was broad gauged any time before he completed his tax list or assessment roll on or before the second Monday in September and turned same over to the clerk of the board of county commissioners, he should have added this increased valuation to his assessment roll. Having failed to do this, as in the present case, the county board of equalization had the full authority under the law to add to the assessment as made by the state board of County assessors and the county assessor the increased valuation due to improvements, betterments, and additions which occurred since the date of the assessment, and under these circumstances it became the duty of the board of equalization to equalize any property which had been assessed at an undervaluation of its full cash value. State v. Meyers, 23 Nev. 274, 46 Pac. 51. We think it is a reasonable construction to place upon the amendment of 1903 above quoted that the inhibition upon the county board of equal. ization, equalizing the valuation of property which has been fixed by the state board of county assessors, only applies when such property remains in substantially the same condition, and that it does not apply to property which has materially changed in form and value since the meeting of the state board. Any other construction does violence to the general policy of our revenue laws. The valuation as placed by the county board of equalization on the said road is not pleaded in the answer of defendant as excessive, nor is it shown anywhere in the record to be excessive. If appellant had desired to raise the issue of excessive valuation, it should have prepared its answer in accordance with section 1124 of our Compiled Laws, which section provides just what defenses may be set up in tax suits. Neither is it claimed by the defendant that this increased valuation made in the property of the railroad was ever subjected to taxation before during the year 1905, nor that said increased valuation was ever assessed by the state board of county assessors, and it could not have been because at said date of assessment by said state board of county assessors it was a narrowgauge road. We are of the opinion that all property must be assessed which comes into existence in the state of Nevada either in the nature of additions, betterments, or improvements, or being new property coming into the state during the time intervening between the

first Monday in March and the first Monday in September, inclusive, of each year so long as said property has not before been subjected to taxation for said year; that if property which is assessed in January by the state board of county assessors enhances in value because of betterments or improvements, as is the case in the present instance, before the first Monday in September, the assessor should assess the valuation on said property as assessed by the state board of county assessors plus any additional or increased valuation which accrues to said property, and that, if he fails to do so. the county board of equalization are authorized to equalize the property at its full cash value, to the end that no property in the estate may escape taxation once during the year.

Many, if not the majority, of the states have constitutional or statutory provisions fixing a day certain in each year with reference to which the valuation of real and personal property shall be fixed, as, for example, the statute of the state of California, following a similar constitutional provision of said state, provides: "The assessor must, between the first Mondays of March and July of each year, ascertain the names of all taxable inhabitants and all property in this county subject to taxation, except such as is required to be assessed by the state board of equalization, and must assess such property to the persons by whom it was owned or claimed, or in whose possession or control it was at 12 o'clock m. of the first Monday of March, next preceding." Many authorities are cited by counsel for appellant, based upon such constitutional or statutory provisions, holding that property which is not within the state upon the day fixed, or improvements made upon the property subsequent to such day, is not liable to assessment for that year. But, as there is no such constitutional or statutory provision in this state, these authorities are inapplicable. State v. Earl, 1 Nev. 397. All property in the state of Nevada not exempt from taxation which is in this state on the first Monday in March, and all property coming into the state not exempt from taxation after the first Monday in March to and including the first Monday in September, is subject to taxation for that year, and a lien attaches to all taxable property which is in the state on the first Monday in March, and also attaches immediately to all taxable property coming into the state after the first Monday in March to and including the first Monday in September. Comp. Laws, § 1079.

It is contended by appellant that they did not receive any notice of the intended raise to be made on the property of appellant, and were given no opportunity to be heard before said board of equalization in the consideration of the additional valuation added to its property. The record discloses the following

testimony given by Mr. Atchison, clerk of the county board of equalization: "Mr. John G. Atchison continued in direct examination (By Judge Mack): Q. As deputy county clerk and acting for the clerk, at the time the board of equalization was in session, did you give the defendant any notice of the intended raise by the board of equalization in the assessment of the defendant? A. Yes, sir. Q. How did you give that notice? A. There was a printed form which is used for that purpose, and I sent one to the secretary of the Carson & Colorado Railway Company, at Carson City, and another notice to San Francisco. Mr. Pyne has showed me a copy of a notice since he has been in town, and it. might be possible we notified the San Francisco office in the name of the Carson & Colorado Railway Company; but the other notice was sent to the Carson & Colorado Railway Company, Carson City, to Mr. Yerington. Q. Have you a copy of that notice? A. No, sir. Q. Can you give, from memory, the substance of the notice? A. I can, except the printed form. Q. Did you see the printed notice? A. Yes, sir. Q. Did you affix the seal to it? A. Yes, sir; affixed the seal. Q. To whom did you send the notice? A. I sent the one to Carson City to E. B. Yerington, secretary of the Carson & Colorado Railway Company. The second was sent to E. B. Ryan, San Francisco. It is nearly a year ago, and it seems to me I asked Mr. Henley, at that time, the course to pursue, knowing it was an important case. Q. In the notices was the fact set forth that the board of equalization was going to make the raise? A. Yes, sir. Q. Was a time fixed for them to appear and show cause? A. Yes, sir. Q. Was any notice published in the paper relative to it? A. Not that I know of." It also appears from the transcript, pages 24, 46, 47, that notice of the added valuation was published in the Walker Lake Bulletin in accordance with. section 1098 of Nevada Compiled Laws, which said section is merely directory.

State

r. Washoe County, 14 Nev. 140; State v. Northern Belle, 15 Nev. 385. While there may be some conflict in the testimony as to whether or not proper and regular notices were duly given the defendant, yet we deem the finding of fact by the court upon this question conclusive, and this in accordance with a well defined line of authorities holding that a finding of fact will not be disturbed where there is substantial evidence to support it.

And. for the same reasons that the previous error is not reversible and an additional legal reason hereafter given, appellant's contention that at the time of the action of the county board of equalization when it added the increased valuation complained of the property in question belonged to the Nevada & California Railroad Company, we deem the finding of fact of the lower court against appellant's contention conclusive, and it will