By the Court,

This is an action to recover taxes due for the year 1895, amounting to the sum of $6,353 50, together with penalties and costs.

Defendant valued its railroad in Storey county at $70,787, and delivered to the assessor the statutory statement to that effect. The officer declined to accept the valuation, but assessed it at the sum of $127,070. The board of equalization sustained the officer, and in due time this action was commenced. At the trial a verdict was rendered in favor of the state for $6,353 50, together with penalties and costs. From the judgment and an order refusing a new trial, the defendant appeals.

In the case of State v. V. & T. R. R. Co. et al., 23 Nev. 283, it was decided that the value of this railroad for the purposes of taxation for the year 1895 must be determined mainly by its net earnings capitalized at the current rates of interest, taking into consideration any immediate prospect for an increase or decrease in the earning capacity of the road.

In that case the only evidence to support the verdict was that of the assessor. He testified that in his judgment the railroad in Washoe county was worth the amount assessed. It was shown that he had no knowledge of the business of the road; that he had not examined the reports of the company filed in compliance with law in the office of the secretary of state, and that if he had known of any decrease of its earnings, that fact would not have influenced his valuation of the property. It was held that this evidence was *436insufficient to create a substantial conflict in the evidence when the undisputed facts were that, according to the correct method of valution, the assessment was too high.

That case is sought to be distinguished from this, upon the ground that in this case there is a substantial conflict in the testimony, and therefore this judgment should be affirmed.

In this case the only witness upon the part of the state touching valuation was the deputy assessor. His testimony was substantially the same as that of the assessor in the case from Washoe county.

Some testimony was introduced tending to show that the superintendent of defendant had admitted the correctness of an assessment made in the year 1893, but it was also shown that in that year the business of the road was exceptionally prosperous, the yearly statement made June 30th showing $102,341 50 as net earnings.

We are unable to make any distinction in principle in the respect mentioned between the cases. The remaining portion of the testimmiy is substantially the same in each case.

It was shown that the net earnings for the year 1895 were $27,449 53. That sum capitalized at 8 per cent, the rate of interest fixed by the undisputed testimony, represents $343,-119 12 as the value of the entire road.

The valuation fixed by the assessor cannot be upheld, and the case must be reversed for the reasons given in State v. V. & T. R. R. Co., 23 Nev. 283.

It is so ordered.

concurring:

I concur in the opinion of the court, as expressed by Chief Justice Belknap, that the judgment of the court helow must be reversed for the reasons given and under the authority cited. The statute of 1895, 39, amends the general revenue law, and by the amendment defendants in tax suits are allowed to plead as a defense, among others, “that the assessment is out of proportion to, and above the actual cash value of the property assessed.” Before this amendment such defense could not be pleaded and. the value of the assessed property, as fixed by the assessor and board of *437equalization, could not be set aside, except upon the plea and proof of fraud in the assessment, and the delinquent list was sufficient evidence to sustain the valuation so fixed. Under the statute of 1895, when the defendant introduces competent evidence showing an over-valuation, and the jury by their verdict find the value as fixed by the officers without evidence to support it, other than the delinquent list, or equalized assessment roll, or the testimony of a witness or witnesses not qualified to testify under the well-established rules of evidence as to the value, this court must set aside such verdict, or ignore such defense and the statute which authorizes it. This court has no right to disregard an act of the legislature except upon constitutional grounds.