Opinion of the Court by
Beatty, J., Chief Justice Lewis and Justice BbosNAN
concurring in the original opinion. The opinion on rehearing was delivered by Justice Beatty, the Chief Justice concurring.
[336]*336This is a petition for a writ of mandamus to be directed to tbe respondents, requiring tbem to set apart certain moneys of tbe revenue collected for tbe taxes of tbe years of 1862, 1863 and 1864, for school purposes.
Tbe statutes on this subject are numerous and somewhat confused. In the year 1861 there was a law passed establishing a common school system for Nevada Territory. That law is divided into five articles, and each article subdivided into sections. Section 2, Article I., is in these words: “For the purpose of establishing and maintaining the common schools, it shall be the duty of the County Commissioners of each county to set apart, annually, ten per cent, of all moneys paid into the County Treasury received as taxes upon the property contained in such county, and the said money so appropriated shall be paid over to the County Treasurer, to be appropriated for the hire of school teachers in the several school districts, to be drawn in the manner hereinafter prescribed.” • Section Y, Article II., is in these words : “ For the ensuing two fiscal years there shall be set apart, semi-annually, five per cent, of all the moneys received as Territorial tax, for school purposes, and such amount shall be distributed pro rata, according to the provisions of section 2d of this chapter” [article]. The first point to be determined then is, what was the intention of the Legislature where they use this language: “ To set apart, annually, ten per cent, of all money paid into the County Treasury received as taxes upon the property contained in such county.”
The first point which presents itself to our mind is, that it is obvious that this ten per cent, is only to be deducted from the property tax. It has no reference to license and other taxes.
The next question is to determine whether this ten per cent, is to be deducted from the gross amount of all properly tm paid into the County Treasury, or only that which is paid for county purposes.
The County Treasurer is not only the agent for receiving the county taxes, but also the Territorial taxes in each county. To give the literal meaning of the language used, it would be ten per cent, of all money received by the Treasurer, whether [337]*337county or Territorial. Yet it is evident tlie legislative body only had reference to money paid in to the Treasurer as taxes for county purposes, and not to that which was paid to him for Territorial purposes. The 7th Section of Article II. shows clearly it was intended only five per cent, of the Territorial taxes should g’o into the School Eund, and that was to come in an entirely different manner. The true intent, then, of this Act, is that ten per cent, of all money paid to the County Treasurers of Nevada as property tax for county purposes should be set apart for school purposes. Some amendments were made to this Act in 1862, but do not in any way affect the questions we have been discussing.
In 1864, the school law was again amended in some small particulars. The only amendment affecting this question is as follows: “ The following sections are hereby added to Article V.” : [Sections 14 and 15 which are added do not affect the point under discussion.]
“ Section 16. The Board of County Commissioners of the several counties (except Storey County) are hereby directed to levy a tax annually upon the taxable property of the county according to the assessment valuation of the County Assessor, not to exceed thirty cents on each one hundred dollars, nor less than ten cents, which tax shall be added to the county tax, and collected and disbursed in the same manner as other School Fund money.”
The only question in regard to this section is, whether it is a substitute for Section 2d, Article I., or an additional school tax. We have no hesitation in saying this is a special tax to be added to the ten per cent, provided for in Section 2d, Article I.
The Act of 1865, while it repeals .former school laws, provides “ that the common school moneys or funds already accrued from taxation or otherwise, shall inure to the benefit of and belong to the public school funds provided for in this Act.”
These general proposition being settled, it is now necessary to examine the special laws in regard to taxation in Ormsby County.
The Revenue Law of 1861 only authorized the levying of sixty cents on each one hundred dollars for county purposes.
[338]*338There was at that time no law dividing the county revenues into different funds, except the law requiring ten per cent, of property tax to be set apart for school purposes.
The Board of Commissioners of Onnsby County, early in 1862, levied a tax of one dollar and fifty cents on one hundred dollars’ worth of property, for comity purposes, which they divided as follows: Six-tenths of one per cent, for county purposes (General Fund), six-tenths of one per cent, for Building Fund, tliree-tenths of one per cent, for Contingent Fund.
In the Fall, or rather Winter, of 1862, this Act of the Board was legalized.
Although this tax is alleged to be levied for “General Fund,” “ Building Fund” and “ Contingent Fund,” there is nothing in the action of either the Board or Legislature, so far as it appears before us, setting apart any portion of this tax to be applied exclusively for any particular object. There is nothing to prevent the clause in the School Law which requires ten per cent, of all county property taxes to be set apart for school purposes operating on all parts of this revenue. We can see no reason why the ten per cent, clause in the School Law should apply to that revenue raised for “ General Fund ” more than that raised for “ Contingent Fund” or “ Building Fund.” We think ten per cent, of the whole, one and one-half per cent, property tax, should have been set aside for school purposes.
In 1863, the Commissioners of Ormsby County, whilst the law only authorized them to levy six-tenths of one per cent, property tax for county purposes, proceeded to levy a county tax of two per cent., or two dollars on the hundred, divided as follows: For “ General Fund” purposes, fifty cents; for “ School” purposes, ten cents ; for “ Cash Contingent Fund” purposes, ten cents; for “ Jail Building Fund,” one dollar and thirty cents.
In the Spring of 1864, the Legislature legalized this Act, and, in the law legalizing the same, made special provision that the one dollar and thirty cents levied for building purposes should not be appropriated for any other purpose than to pay the debt created for county buildings. So this special [339]*339provision of tbe law of 1864 prevents tbe 2d Section of tbe 1st Article of tbe school law operating on tbis fund.
Tben tbe balance of tbe county tax is only seventy cents on tbe one hundred dollars, of which ten cents on the one hundred dollars, or one-seventh of the whole, is set apart for school purposes. Tbe law is rather confused, but it is evident to our mind this ten cents on the one hundred dollars was intended, both by tbe Commissioners 'and the Legislature, to be in lieu of, not in addition to, tbe ten per cent, of county property tax.
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Opinion of the Court by
Beatty, J., Chief Justice Lewis and Justice BbosNAN
concurring in the original opinion. The opinion on rehearing was delivered by Justice Beatty, the Chief Justice concurring.
[336]*336This is a petition for a writ of mandamus to be directed to tbe respondents, requiring tbem to set apart certain moneys of tbe revenue collected for tbe taxes of tbe years of 1862, 1863 and 1864, for school purposes.
Tbe statutes on this subject are numerous and somewhat confused. In the year 1861 there was a law passed establishing a common school system for Nevada Territory. That law is divided into five articles, and each article subdivided into sections. Section 2, Article I., is in these words: “For the purpose of establishing and maintaining the common schools, it shall be the duty of the County Commissioners of each county to set apart, annually, ten per cent, of all moneys paid into the County Treasury received as taxes upon the property contained in such county, and the said money so appropriated shall be paid over to the County Treasurer, to be appropriated for the hire of school teachers in the several school districts, to be drawn in the manner hereinafter prescribed.” • Section Y, Article II., is in these words : “ For the ensuing two fiscal years there shall be set apart, semi-annually, five per cent, of all the moneys received as Territorial tax, for school purposes, and such amount shall be distributed pro rata, according to the provisions of section 2d of this chapter” [article]. The first point to be determined then is, what was the intention of the Legislature where they use this language: “ To set apart, annually, ten per cent, of all money paid into the County Treasury received as taxes upon the property contained in such county.”
The first point which presents itself to our mind is, that it is obvious that this ten per cent, is only to be deducted from the property tax. It has no reference to license and other taxes.
The next question is to determine whether this ten per cent, is to be deducted from the gross amount of all properly tm paid into the County Treasury, or only that which is paid for county purposes.
The County Treasurer is not only the agent for receiving the county taxes, but also the Territorial taxes in each county. To give the literal meaning of the language used, it would be ten per cent, of all money received by the Treasurer, whether [337]*337county or Territorial. Yet it is evident tlie legislative body only had reference to money paid in to the Treasurer as taxes for county purposes, and not to that which was paid to him for Territorial purposes. The 7th Section of Article II. shows clearly it was intended only five per cent, of the Territorial taxes should g’o into the School Eund, and that was to come in an entirely different manner. The true intent, then, of this Act, is that ten per cent, of all money paid to the County Treasurers of Nevada as property tax for county purposes should be set apart for school purposes. Some amendments were made to this Act in 1862, but do not in any way affect the questions we have been discussing.
In 1864, the school law was again amended in some small particulars. The only amendment affecting this question is as follows: “ The following sections are hereby added to Article V.” : [Sections 14 and 15 which are added do not affect the point under discussion.]
“ Section 16. The Board of County Commissioners of the several counties (except Storey County) are hereby directed to levy a tax annually upon the taxable property of the county according to the assessment valuation of the County Assessor, not to exceed thirty cents on each one hundred dollars, nor less than ten cents, which tax shall be added to the county tax, and collected and disbursed in the same manner as other School Fund money.”
The only question in regard to this section is, whether it is a substitute for Section 2d, Article I., or an additional school tax. We have no hesitation in saying this is a special tax to be added to the ten per cent, provided for in Section 2d, Article I.
The Act of 1865, while it repeals .former school laws, provides “ that the common school moneys or funds already accrued from taxation or otherwise, shall inure to the benefit of and belong to the public school funds provided for in this Act.”
These general proposition being settled, it is now necessary to examine the special laws in regard to taxation in Ormsby County.
The Revenue Law of 1861 only authorized the levying of sixty cents on each one hundred dollars for county purposes.
[338]*338There was at that time no law dividing the county revenues into different funds, except the law requiring ten per cent, of property tax to be set apart for school purposes.
The Board of Commissioners of Onnsby County, early in 1862, levied a tax of one dollar and fifty cents on one hundred dollars’ worth of property, for comity purposes, which they divided as follows: Six-tenths of one per cent, for county purposes (General Fund), six-tenths of one per cent, for Building Fund, tliree-tenths of one per cent, for Contingent Fund.
In the Fall, or rather Winter, of 1862, this Act of the Board was legalized.
Although this tax is alleged to be levied for “General Fund,” “ Building Fund” and “ Contingent Fund,” there is nothing in the action of either the Board or Legislature, so far as it appears before us, setting apart any portion of this tax to be applied exclusively for any particular object. There is nothing to prevent the clause in the School Law which requires ten per cent, of all county property taxes to be set apart for school purposes operating on all parts of this revenue. We can see no reason why the ten per cent, clause in the School Law should apply to that revenue raised for “ General Fund ” more than that raised for “ Contingent Fund” or “ Building Fund.” We think ten per cent, of the whole, one and one-half per cent, property tax, should have been set aside for school purposes.
In 1863, the Commissioners of Ormsby County, whilst the law only authorized them to levy six-tenths of one per cent, property tax for county purposes, proceeded to levy a county tax of two per cent., or two dollars on the hundred, divided as follows: For “ General Fund” purposes, fifty cents; for “ School” purposes, ten cents ; for “ Cash Contingent Fund” purposes, ten cents; for “ Jail Building Fund,” one dollar and thirty cents.
In the Spring of 1864, the Legislature legalized this Act, and, in the law legalizing the same, made special provision that the one dollar and thirty cents levied for building purposes should not be appropriated for any other purpose than to pay the debt created for county buildings. So this special [339]*339provision of tbe law of 1864 prevents tbe 2d Section of tbe 1st Article of tbe school law operating on tbis fund.
Tben tbe balance of tbe county tax is only seventy cents on tbe one hundred dollars, of which ten cents on the one hundred dollars, or one-seventh of the whole, is set apart for school purposes. Tbe law is rather confused, but it is evident to our mind this ten cents on the one hundred dollars was intended, both by tbe Commissioners 'and the Legislature, to be in lieu of, not in addition to, tbe ten per cent, of county property tax. This amount, as we understand from tbe pleadings and evidence, was set apart, so tbe relators have no ground of complaint so far as tbe revenues of 1863 are concerned.
In the year 1864, tbe County Commissioners of Ormsby County levied á tax of two dollars on tbe one hundred dollars, for county purposes, divided as follows: Forty-five cents on tbe hundred to a Building Fund, sixty cents to a Current Expense Fund, fifteen cents to tbe School Fund, and eighty cents for General and Contingent Fund.
Tbe statute of 1864 (p. 92) clearly provides for tbe tax in favor of a Building Fund, and provides that it shall be applied to pay a certain debt without deduction for any other purpose, and it is not subject to that clause of the School Law which sets apart ten per cent, of County Fund for school purposes. Tbe sixty cents Current Expense Fund is also a special tax specially appropriated, and, like tbe forty-five cent tax, exempt from tbe operation of tbe ten per cent, clause in the School Law. Tbe fifteen cents goes entirely, and has gone, into the School Fund, leaving no questions about that part of tbe tax. The eighty cents which was levied for general county purposes and a Contingent Fund, is liable to the charge of ten per cent, for school purposes, and one-tenth of that, or eight cents on the one hundred dollars, of taxable property, should have been added to the school tax, making in all twenty-three cents instead of fifteen for the school tax in the year 1864.
It is therefore ordered that the County • Commissioners of Ormsby County set apart, for school purposes, one-tenth part of any money now in the County Treasury derived from the property tax of 1862, and paid into either the Building Fund or Contingent Fund; and as money may hereafter be collected [340]*340from the property taxes of 1862, payable to either the Building Fund or Contingent Fund, that one-tenth part of the 'same shall from time to time be set apart for said school purposes.
And it is further ordered that they set apart, for school purposes, ten per cent, of any money now in the Treasury derived from the property tax of eighty cents on the hundred dollars levied in the year 1864 for a General. County and Contingent Fund, and that they continue to set apart, for school purposes, ten per cent, of said fund as it may hereafter be derived from the said property tax of eighty cents on the hundred dollars for the year 1864.