Mammoth City v. Snow

253 P. 680, 69 Utah 204, 1926 Utah LEXIS 136

• Court: Utah Supreme Court
• Decided: December 22, 1926
• Docket: No. 4368.
• Status: Published

Opinions

STRAUP, J.

The plaintiff, Mammoth City, December 24, 1925, presented an affidavit or petition to this court wherein it is alleged that the Chief Consolidated Mining Company, a corporation, and the Grand Central Mining Company, a corporation, during the years of 1923 and 1924, were the owners and in possession of “mines and mining claims,” giving the names of about 20 claims, situate in Mammoth City, Juab county, Utah, from which both of such companies during such years made large extractions of ore, the net proceeds of which amounted approximately to $1,500,000; that it was the duty of such companies to make out and file with the state board of equalization and assessment a report showing the gross and net proceeds derived by them from ores extracted during such years from such mines and claims, but failed to do so, and it thus became the duty of the board to ascertain such proceeds for taxing purposes from the best information obtainable, but it also failed to do so, and thus no assessment was had for the years in question of net proceeds from such mines and claims; that it was the duty of the board, prior to the first Monday in May of the years 1924 and 1925, to assess all mines, mining claims, and mining properties within the state, and, before the third Monday in June, “apportion the total of such assessments to the several counties in which the mines, mining claims, and mining properties, were located”; that during the year 1924 Mammoth City caused a levy to be made upon all of the taxable property within its corporate limits, including the aforementioned mines and mining claims, of 15 mills on the $1 of assessed valuation, but because of the failure of the companies and the board to make the assessment as the law provides, the city was deprived of taxes upon such properties situated within its corporate limits, which taxes the plaintiff approximated to be $22,500. Thus Mammoth City prayed for a writ of mandate directing the board to assess such mines and mining claims in accordance with chapter 114, Laws Utah 1919, or show cause why it should not do so.

Such an alternative writ was issued. In response thereto the board answered admitting that the mines and mining claims mentioned in the affidavit or petition of the plaintiff were located within the corporate limits of the city, but denying that the Grand Central Mining Company, since November, 1922, owned any part of such mines, and, to the contrary, alleged that at that time the Grand Central Mining Company sold and conveyed all of such claims to the Chief Consolidated Mining Company, who then became, and during the years 1923 and 1924 was, the sole owner of them; that upon such conveyance such claims were consolidated with other mining claims owned by the Chief Consolidated Mining Company “and were mined and operated together with other mining claims and mining properties of such company as one mine; and the said Chief Consolidated Mining Company did, during the years 1923 and 1924, make large extractions of ore from its said mine, including the mining claims particularly described in the affidavit” of the plaintiff; and “that the ores extracted from the mining claims particularly described in said affidavit consti tuted but a fractional part of all of the ores extracted by the Chief Consolidated Mining Company from its said mine; and that the net annual proceeds from ores extracted from that portion of the mine of the said Chief Consolidated Mining Company lying within the limits of Mammoth City for taxable purposes during the years 1923 and 1924 was less than $135,000 per year.” The board denied that the Chief Consolidated Mining Company failed to make out and file a report to the board, and alleged that the company “did make out and file with the said board of equalization and assessment the statement” as required by law “for each of said years; and that said statement included the gross yield of extractions of ore from the said mine of the said Chief Consolidated Mining Company, including that portion thereof lying within the limits of Mammoth City”; and that the board “did assess the mine and mining properties of the said Chief Consolidated Mining Company for the years 1923 and 1924, including the mining claims particularly described” in the affidavit of the plaintiff; and that “it apportioned said assessment to the county in which such mine and mining properties are located, and by said apportionment it returned to Juab county, State of Utah, for each of said years, the proper proportion of each of said assessments”; and further alleged that the Chief Consolidated Mining Company “filed the statement required by law and did furnish all information required and necessary to enable said board of equalization and assessment to determine and assess the net proceeds from said mine.” The board admitted that a portion of the mine, and the mining claims of the Chief Consolidated Mining Company as described in the affidavit of the plaintiff, lay within the corporate limits of Mammoth City, but alleged that no duty was imposed on it “to segregate to taxing units within any county the assessment of property returned to such county by said state board of equalization and assessment, and further alleges that such duty is imposed by law upon the board of county commissioners of each county, and that if Mammoth City has failed to receive its proper proportion of the tax upon the properties of the Chief Consolidated Mining Company for the year 1924, that such failure is not due in any manner or at all to any dereliction of duty on the part of the said board of equalization and assessment.” The board further alleged that it had no knowledge or information as to the amount of taxes received by Mammoth City for the year 1924, on account of the assessment made against the property of the Chief Consolidated Mining Company, or as to the amount of taxes which ought to have been received by it for that year, but alleged the facts to be that “said Chief Consolidated Mining Company has paid all taxes levied by said Juab county on the assessment of proceeds from its said mine and mining claims for the said year 1924,” and denied that there was due Mammoth City from the Chief Consolidated Mining Company on account of taxes for the year 1924 the sum of $22,500 or any other sum, and denied each and every allegation in the affidavit of plaintiff contained not specifically admitted.

On these pleadings the matter came on for hearing. No evidence of any kind was adduced except the reports made and filed by the Chief Consolidated Mining Company to and with the board for the years 1928 and 1924, and a copy of the .board’s “record of assessment.” The reports made by the Chief Consolidated Mining Company were made on blanks furnished the company by the board. For 1923 the report is:

“Annual report. — Statement of net proceeds for the year 1923. Owner, Chief Consolidated Mining Company. Address, Eureka, Utah. Name of mine, Chief Consolidated. Agent, W. Pitch. County where located, Juab. Address, Eureka, Utah.”

Then follows statements of amounts of fine ounces of gold and silver, pounds of lead, copper, zinc, and tons of ore, and a “gross yield in dollars, $5,108,063.34.” From that is deducted costs of extraction, reduction, transportation, con struction, and repair of mills and reduction-works, aggregating $3,685,323.11, leaving total net proceeds of $1,422,-740.23, which, multiplied by 3, amounted to $4,268,222.69, value of mine based on three times net proceeds.” A similar report was made for the year 1924, showing net proceeds of $1,083,272.43, which, multiplied by three, amounted to “$3,249,817.29, value of mine based on three times net proceeds.” To each of these reports is attached the oath or affidavit of the secretary of the company, wherein, among other things, he deposed that he had read the report and knew the contents thereof, and that it correctly set out “the gross yield and net proceeds from all ores extracted and marketed during the year by the said company, and including the proceeds from all ores extracted by lessees from the property of said mining company, and the proceeds from all dumps and tailings worked during the year by the said company.” Thus, the report as made was a statement of gross and net proceeds derived “from all ores extracted and marketed” by the company during the year. Upon such reports the board’s assessment was made on the basis of net proceeds and on the amount thereof as so reported. Its record of assessment shows,

“Record of assessment for the year 1923 of the Chief Consolidated Mining Company, based on three times net proceeds. Address of owner or agent, 814 Newhouse building, Salt Lake City, Utah. Schedule No. 3 for Juab county, Utah.”

The record then recites: 5,397 fine ounces of gold, 3,936 fine ounces of silver, 18,828,548 pounds of lead, 117,046 pounds of copper, 113,810 tons of ore, and, “gross yield in dollars, $5,108,063.34.” From that deductions for cost of extraction, reduction, transportation, construction, and repair of mills and reduction works are made aggregating $3,662,730, leaving “net proceeds $1,445,332, value of mine based on three times net proceeds, $4,337,998.” A similar record for the year 1924 is shown, except that the address of owner or agent is “W. Fitch, Eureka, Utah,” and the gross yield in dollars stated to be $5,903,223.57, total deductions $4,819,951.10, and “net proceeds $1,083,272.40, value of mine based on three times net proceeds, $3,249,817.” There also were shown sheets of the board’s record of assessment for the year 1924 “upon the property of the Chief Consolidated Mining Company, Grand Central Mine, Mammoth, address of owner or agent, W. Fitch, Eureka, Juab county, Utah,” showing an assessment of machinery, supplies, personal property and improvements aggregating $297,415.

No further evidence was adduced. On a hearing had, in which counsel for the Chief Consolidated Mining Company appeared with the Attorney General for the board but not for the company, it not being a party to the proceedings, a conclusion was reached by us that no assessment was had for the years in question on the net proceeds of the mines and mining claims mentioned in the affidavit or petition of plaintiff and located within the corporate limits of Mammoth City, and thus directed the board “to assess the net proceeds of the mines and mining claims enumerated in the affidavit and located within the boundaries of Mammoth City, with the ores taken from such mines and mining claims, for the years 1923 and 1924. For that purpose the defendant board is directed to request the Chief Consolidated Mining Company to file with it a statement showing net proceeds of ore taken from said mines and mining claims for each of the years 1923 and 1924. In the event the mining company neglects or refuses to prepare and file the statement for each of such years, then the defendant board is directed to assess such mines and mining claims from the best information and knowledge it can obtain as provided in section 5934,” Comp. Laws Utah 1917, as amended by Laws Utah 1919, c. 114. A petition for a further hearing, which in effect was for a rehearing, was filed asking a re-examination and reconsideration of the case. We granted the petition and a further hearing was had, but no additional evidence was adduced nor were there any different or additional pleadings or issues presented.

Because we were not fully of one accord when the original opinion went down and because the questions involved are of public concern, we have concluded to examine the case afresh. At both the original and rehearing of the case the parties 'broke loose and strayed from the pleadings and more or less wandered at large, to the confusion of most all concerned, and discussed and invited decisions on matters not involved within the issues. We thus conclude to restrict and confine the parties within reasonable limits of the pleadings, for, after all, whatever we do we ought not go beyond these.

As is seen by the affidavit and petition of Mammoth City, it, in asking for the writ, proceeds on the theory that no assessment was made of the net proceeds of ore extracted from the mines and mining claims situate in Mammoth and mentioned in the affidavit, and that the board made no apportionment of such assessment to the county commissioners of Juab county for the years 1923 and 1924, and that thereby Mammoth City in 1924 lost $22,500 in taxes, but what, if any, it lost in 1923, is not averred, and that the board thus be directed to make -\n assessment as by law in such case made and provided, as also is seen, all such allegations are denied by the board and put in issue. While the plaintiff did not make a motion for judgment on the pleadings, yet the course pursued by it at the hearing amounted to that, except the production of the filed reports of the Chief Consolidated Mining Company and the board’s record of assessment heretofore referred to. The plaintiff, offering no further proof in support of its petition, and by pursuing the course it did — in effect moving for judgment on the pleadings — must otherwise for such purpose take as untrue all that is alleged in the petition and well denied, and as true all that is well alleged in the answer in response to the petition. When we are asked by mandate to direct the board or any tribunal to perform an act, it must be clear that the act is one which 'by law is specifically enjoined. If that, either as matter of law or fact is not manifest, the writ should be denied. We, as well as other courts, many times have so held.

Though it be assumed that the affidavit of plaintiff contains sufficient averments to show that no assessment was made and that the board now ought to be required to make one, yet, the allegations in such respect are sufficiently controverted and put in issue to resist a motion for judgment on the pleadings. In the presentation of the cause and in argument of it more or less talk and discussion of a desultory nature were indulged by counsel for both parties respecting some of the conditions and circumstances as to the management and operation of the mines and claims in question and kindred matters, but none of which was given as or in the nature of a stipulation of facts, and most of it in discord — one counsel asserting one thing and other counsel another and different thing — except that the mines and mining claims in question were located within the corporate limits of Mammoth City and that prior to and some time in 1922 such claims were operated by the Grand Central Mining Company, and since then conveyed to, owned and operated by, the Chief Consolidated Mining Company, counsel for plaintiff stating, separately from other mines and claims owned and operated by it, and counsel for the board, in connection with such other mines and as one mine and as alleged by the board in its answer. No request was made to amend the pleadings in any particular or to agree upon a stipulation of facts, nor was there one agreed to nor was there any filed. Counsel merely continued with their divers dissertations of what each regarded the facts to be concerning the operation and management of the mines and mining claims in question, regardless of the pleadings, proof, or of any stipulation. Parties must make their own record in a cause. We cannot make it for them. And the record made by them limits and prescribes our judicial action; and whatever is finally done must be based upon the record and not on discussions of fact and circumstances not averred or proved or stipulated or in some manner brought in the record.

However, though it be assumed that the answer put in issue the allegations of the petition, except that the mines and mining claims in question were in Mammoth City, yet, it is contended that the reports made to the board by the Chief Consolidated Mining Company and the board’s record of assessments for the years in question show either (1) that no assessment was made on the basis of net proceeds derived from the extraction of ore from the mines and claims in question for those years, or (2) that no assessment was made as by law provided, and that in either such case the board should be directed to now make a proper assessment on the basis of such net proceeds. And it is from that viewpoint that we now further examine and consider the case and not from the desultory talks and discussions of counsel wholly without the record and unsupported by proof. Considering such question, both counsel have referred us to these provisions of the statute by them deemed pertinent thereto:

Section 5878, Comp. Laws Utah 1917, as amended by chapter 114, Laws Utah 1919, providing that the state board of equalization shall assess all mines and mining claims, etc., all machinery used in mining, etc., all property and surface improvements upon or appurtenant to mines or mining claims, etc., and the value of metalliferous mines based on some multiple of the annual net proceeds thereof, which later was fixed at the multiple of three times such net proceeds.

Section 5929, Comp. Laws Utah 1917, as amended by chapter 114, Laws Utah 1919, which, so far as material, is:

“Every person, corporation, or association engaged in mining upon a vein or lode or placer mining claim, containing any gold, silver, or other metalliferous mineral deposits, must each year make out a statement of the gross yield of the above named metals or minerals from each mine owned or worked by such person, corporation or association during the year next preceding the first day of January, and the value thereof, which statement shall give the fine ounces of gold and silver, and pounds of lead, copper and other metals, together with the expenditures in extracting the ore and reducing the ore and converting it into money, which statement shall show the net proceeds of such mine, including the net proceeds of leases on said mine, and the net proceeds from dumps and tailings. Also a statement showing all the machinery used in mining, and all property and surface improvements upon or . appurtenant to each mine or mining claim, owned or worked by such person, corporation, or association during the year preceding the 1st day of January, and the value of the same at 12 o’clock noon on the 1st day of January. * * *”

Section 5932:

“The state board of equalization must, prior to the first Monday in May of each year, assess the mines, mining claims and mining property, and before the third Monday in June apportion the total assessment of the mines to the several counties in which the mines are located. The state hoard of equalization must prepare each year a book called the ‘Assessment Book of Mines,’ in which must be entered the assessment of all mines in the state subject to assessment by this board and in which must be specified in separate columns, and under the appropriate head: 1. Owner of mine. 2. Name and description and location of the mine. 3. County in which it is situated. 4. Net proceeds in dollars, if a metalliferous mine. 5. Value of mine, 6. Value of machinery. 7. Value of supplies and other personal property. 8. Value of improve-; ments. Together with such other information as the board may determine.”

Section 5934:

“If any person, corporation or association engaged in mining or owning mining property, as mentioned herein, refuses or neglects to make and deliver to the state board of equalization the statement mentioned in this chapter, the state' board of equalization must assess and list the mining property, from the best information and knowledge it can obtain. Such person, corporation or association refusing, upon demand, to furnish statement to the state board of equalization, shall be subject to a like penalty as is provided in subdivision 2, section 5981, and in section 5882 for failure to furnish.statement to a county assessor,” which is, that the taxpayer is precluded from questioning the value so fixed by the board.

And section 5908, Comp. Laws Utah 1917:

“Any property discovered by the assessor to have escaped assessment may be assessed at any time, and when so assessed shall be reported by the assessor to the auditor, and the auditor shall charge the county treasurer with the taxes on such property, and the treasurer shall give notice to the party assessed therewith.”

In virtue of these statutory provisions it is the contention of the plaintiff that it was the duty of the Chief Consolidated Mining Company, the owner of the claims in Mammoth City as well as the owner of other mines and claims not within the corporate limits of that city hut in Juab county, in making its report to the board during the years in question, to have shown and reported what gross and what net proceeds were had from each mine or mining claim in Mammoth City, or, if not from each of such mines and mining claims, at least what gross and what net proceeds were obtained from the group of mines and claims in Mammoth City and what from mines and claims situated elsewhere in the county; and, inasmuch as the company did not make such a report, it having as is seen but reported the' gross and net proceeds in the aggregate from all its mines and claims in the county, including those in Mammoth City, and since from such reports it cannot be ascertained what of such net proceeds were obtained from the mines and mining claims in Mammoth City and what from mines and mining claims situated elsewhere in the county, it became the duty of the board either to require such a report from the company and on its refusal to make one that the board itself, by the best means obtainable, ascertain such fact and report it to the board of county commissioners of Juab county; and inasmuch as the board also failed and refused to do so, the board should be directed now to make a reassessment, or at least ascertain and make a segregation of such net proceeds and make proper entries thereof in its book or record of assessments.

On the record we think the alleged facts in-the petition that no assessment was made on the basis of net proceeds of the mines arid mining claims in question, the burden to show which was on the plaintiff, are not sufficiently shown to justify a finding in such particular in favor of the plaintiff. To the contrary we think it is indisputably shown that the company reported to the board the gross and net proceeds derived by it “from all ores extracted and marketed” by it during each of the years in question, and that the assessment which was made was made on the basis of net proceeds of all such ores, and of necessity including those extracted from the claims in Mammoth City. While the plaintiff in its petition averred that the mines and claims in question were owned by both the Grand Central Mining Company and the Chief Consolidated Mining Company, yet, such joint ownership was denied by the board, and it was averred by it that in 1922 the Grand Central Mining Company sold and conveyed such mining claims to the Chief Consolidated Mining Company, who then became the sole owner of them and consolidated them with other mines and claims owned by it, and during the years in question “were mined and operated together with other mining claims and mining properties of said company (the Chief Consolidated Mining Company) as one mine.” That is not alleged as a conclusion either of law or of fact, but as an ultimate fact. The plaintiff, offering no proof to' the contrary, and in effect moving for judgment on the pleadings, must, for purposes of this case, be held to assume as true such averments in the answer. In harmony with such fact, the Chief Consolidated Mining Company, on blanks furnished by the board, for the years in question, reported to the board what gross and what net proceeds were obtained by it from its mines and mining claims, including those in Mammoth City — from all ores extracted by it — without segregating what of such proceeds were obtained from the mines and mining claims in Mammoth City and what from mines and mining claims elsewhere in the county, and all of such net proceeds assessed by the state board and the total of such assessments apportioned by it to the board of county commissioners of Juab county. The board apparently was satisfied with and approved such reports made to it, and so, too, seemingly, was the board of county commissioners with the apportionment of the total assessment as reported to it by the state board. No complaint was or is now made by either of a want of any assessment, or of any imperfect, defective, or insufficient assessment or apportionment; nor by allegations or proof is it made to appear that the amount of net proceeds as reported by the company of all its mines and claims in the county and apportioned to the county commissioners was not accurately reported or that any net proceeds were withheld. It is averred and not denied and not anything to show the contrary that the whole of the tax based on the net proceeds of all the mines and mining claims of the company — from all ores extracted by it — and all the taxes in such respect levied and demanded to be paid by the company, were paid in full.

It is our opinion that the reports made by the company to the board, and the board’s record of assessment, instead of showing that no assessment was made on the basis of the net proceeds of the mines and mining claims in question, show that such an assessment was made in connection with net proceeds of other mines and claims of the company in the county. The most that can be said is that on the face of the reports and of the board’s record of assessments it cannot be determined what gross and what net proceeds were obtained from the one and what from the other mines or mining claims. Though it be assumed, as contended by the plaintiff, that the gross and net proceeds of each mine and mining claim ought to have been separately reported by the company, or, if not that, that the company at least ought to have reported what gross and what net proceeds were obtained from the group of mines and mining claims within Mammoth City, and upon a failure of the company so to do that the board itself ought to have ascertained such facts and entered them on the assessment record in assessing the net proceeds, yet that does not justify a holding that no assessment was made of net proceeds of ore extracted from the mines and mining claims in question, or that the assessment which was made is a nullity, or the giving of a direction that an assessment or new assessment be now made as though none had theretofore been made. The board averred that the net proceeds obtained by the company from the mines and mining claims in Mammoth City for the years in question were less than $135,000 per year. That is not denied, and by the course pursued by the plaintiff (in effect demanding judgment on the pleadings) such averment must be taken as true by the plaintiff. But it also is averred by the board and not denied, and in effect also admitted, that the tax based' on such net proceeds, together with the tax based on all other net proceeds assessed against the company, was paid by it. Thus, on the record, it stands undisputed that the company was assessed on the basis of net proceeds derived by it from all ores extracted from the mines and mining claims in question, and that the company paid the whole of the tax based- thereon. Because the state board did not make it appear on the record of assessment what net proceeds were so derived from the mines and mining claims in question does not justify us in regarding such assessment as a nullity and directing the ‘board to now make an assessment as though none had been made. We have no allegation or proof that the assessment which was made was made fraudulently, or based on a gross or any undervaluation, and no proof that such or any net proceeds of such mines or mining claims were omitted from assessment, or that they escaped assessment or taxation.

It is claimed that on the face of the board’s record of assessment, on the basis of net proceeds of ore derived by the company from its mines and claims in Juab county for the years 1923 and 1924, none of the claims in Mammoth City and mentioned in the affidavit or petition of the plaintiff is named on the record as having been assessed, was not eo nomine assessed, and thus the conclusion is reached that none of such claims was assessed, notwithstanding in the answer of the board it was alleged, and as has been seen in effect admitted, that all of such claims were by the Chief Consolidated Mining Company consolidated, mined, and operated by it, together with other mines and claims owned by it, as one mine, and the total net proceeds derived from all of them assessed and the taxes based thereon fully paid. Considering the reports made by the company, the board’s record of assessment, and the pleadings, we think it appears that the company was assessed on all its net proceeds from all ores extracted from all its mines and claims, including those in Mammoth City. If that be true, as we think it is, and the tax based thereon paid, the assessment, though it be assumed that the names of the mines and claims so assessed, the taxing district in the county in which each mine and claim is located, and the net and gross proceeds of each, ought to have been but were not indicated or entered on the record, nevertheless is not of such infirmity as to justify us at the instance of the state or of any taxing district to regard the assessment invalid and direct an assessment to be made as though none had been made; for, in such case, such failure or ommission would constitute but a defective description of which the taxpayer, if the description was not sufficient to identify the property assessed with reasonable certainty and to inform him for what he was taxed, might complain before he paid the tax, or to justify payment of it under protest, but of which neither the state nor other taxing authority may do so after the tax has been paid. The purpose of a proper and sufficient description of property assessed is for the benefit and protection of the taxpayer, to inform him for what property he is assessed, and whatever description is sufficient to identify the property with reasonable certainty so that the owner or taxpayer cannot be misled is a sufficient description. 37 Cyc. 1051; San Francisco v. Flood, 64 Cal. 504, 2 P. 264; San Francisco v. Pennie, 98 Cal. 465, 29 P. 66.

Where there is no sufficient description of the property assessed to identify it with reasonable certainty, or fairly to apprise the taxpayer for what property he is assessed, he may enjoin the collection of the tax, or if property owned by him has been sold for non-payment of such a tax, he may treat the sale as a nullity and have it set aside or a certificate of sale or deed based thereon canceled. It is doubtful whether the description of the property here assessed was of such character where even the taxpayer could properly complain. The company here was assessed on the basis of net proceeds derived from all ores extracted from its mines and claims mined and operated by it in the county. The name of each mine or claim and the location of it in the taxing district in the county, and what gross and what net proceeds were derived from each, not having been indicated or entered on the board’s record of assessment, could hardly be said to have misled the company or be regarded as not apprising it for what property or net proceeds it was assessed. If because of such failure the company could not be heard to complain of such a description and for such reason assail the validity of the assessment, we know of no principle of law whereby the state or any other taxing authority may do so after the tax has been paid.

However, though it be assumed that because of the failure to indicate or enter on the assessment record the name or names of each mine and claim, the taxing district in which each is located, and the amount of gross and net proceeds derived from each, the assessment was invalid, and for such reason the taxpayer, before he paid the tax, could have enjoined the collection of it, or set aside a sale for the non payment of it (a proposition to which the cases cited by the dissenting members relate), yet that, after the tax was paid, would not give the state or any other taxing authorities the right to treat such assessment as a nullity, make another as though none theretofore had been made, and collect a tax based thereon. As to that we think the case of Shackelford v. McGlashan (1921) 27 N. M. 454, 202 P. 690, 23 A.. L. R. 75, is in point. There one Schroeder was the owner of 160 acres of land situate in the S. W. *4 of section 17, township 9 north, range 3 east, in Bernalileo county, the only 160 acres owned by him. The assessor making up the assessment roll and entering an assessment against Schroeder described the property as the “S. W. %, section .. township 17, range 5 east,” which, as so described, located the land in the county of Sandoval. But, under such assessment Schroeder paid the faxes levied, intending thereby to pay the taxes on the 160 acres owned by him. For the same year the assessor made an additional assessment against “unknown owners,” and therein correctly described and assessed the lands owned by Schroeder. That tax was not paid, the land sold for nonpayment thereof, and' the tax deed and subsequent conveyances made upon it canceled by the court. Among other things, the court there says:

“The question in this case is whether payment of the tax has in fact been shown, or, in other words, whether payment under this assessment, which improperly described the land was good payment on the land he owned. It is conceded that appellant intended by this payment to pay the tax on his land and believed that he was doing so. Since the treasurer of the county accepted the money, it must be assumed that he understood it was payment on the same land, for he certainly would not knowingly accept the payment of taxes upon land not within his county. We have, therefore, a case where the owner has paid money to the county as taxes on a certain piece of land, and the county has accepted it as payment on that land, although in fact the land was not properly described on the tax roll and can only be identified by proof of circumstances wholly apart from the roll itself.

“The assessment under which this tax was paid was not a valid one. It would not have supported the tax sale based upon it. On the record presented to us the assessment to ‘unknown owners’ was a valid assessment, and the tax sale based upon it was regular on its face. * * *

“We are determining whether payment under an assessment, invalid because it fails to describe the land sufficiently for identification, is good payment on the land intended to be assessed, so as to avoid a sale under another assessment with a proper description. * * *

“It being admitted in this case that Schroeder acted in good faith, intended to return his land, intended to pay the taxes upon it, and believed that he had done so, and that the county authorities accepted the payment with the same understanding, we hold that it was good payment in fact upon the 160 acres of land which he then owned, and that this payment was a bar to any sale under the second assessment to ‘unknown owners’ may be shown in avoidance of it, and when so shown defeats it.”

In support of the conclusion there reached the court cites Kellogg v. McFatter, 111 La. 1037, 36 So. 112; Meller v. Hodsdon, 33 Minn. 366, 23 N. W. 543; Bender v. Bailey, 138 La. 433, 70 So. 425; and Lewis v. Monson, 151 U. S. 545, 14 S. Ct. 424, 38 L. Ed. 265, which as we too think well support it. The case is also approved by the author, Cooley, Taxation, vol. 3, § 1258 (4th Ed.) Analogous thereto are, also, the cases of Adams v. Luce, 87 Miss. 220, 39 So. 418; Robertson v. Bank of Yazoo City, 123 Miss. 380, 85 So. 177; Wall v. Thomas, 1 Ind. App. 232, 27 N. E. 578; City of Cape Girardeau v. Buehrmann, 148 Mo. 198, 49 S. W. 985; Florer v. Sherwood, 128 Ind. 495, 28 N. E. 71.

These cases also show that on the record before us the net proceeds of ores from the claims in Mammoth City may not be regarded as having escaped or as having been omitted from taxation, because such claims were not eó nomine assessed on the record or not sufficiently or erroneously described, ahd that payment of taxes made on property, though oh an invalid assessment, is a complete defense to another and valid assessment and tax based thereon. As to that we do not find any substantial conflict in the authorities. The eases cited by the dissenting members go not, as we think, to that question, but to questions where the taxpayer himself may avoid an invalid assessment or where taxes on an invalid assessment have not been paid and he is called upon to pay a proper tax on another and valid assessment.

However, as we think, a complete answer to the claim of net proceeds having escaped assessment or taxation is that the company was assessed on the basis of all net proceeds “from all ores extracted and marketed” by it during each year in question and the tax based thereon fully paid.

The plaintiff not having sustained its allegations that no assessment was made on the basis of net proceeds of the mines and mining claims in question, and having admitted that the net proceeds from such mines and mining claims amounting to about $135,000 were assessed and the tax based thereon paid, is thus left to the further proposition that inasmuch as such net proceeds were not by the company’s report or by the board’s record of assessment segregated from the total aggregate of net proceeds of the company as reported and assessed, the state board apportioning such total assessment without segregation to Juab county, and inasmuch as the county commissioners of that county, acting as a board of equalization for the county and required to apportion property assessed therein, including the net proceeds apportioned to that county by the state board, “to the several city, town, school, road, or other lesser taxing districts in the county” (section 5925, Comp. Laws Utah 1917), did not apportion any assessment of such net proceeds to Mammoth City, whereby it lost the taxes due it as alleged by it, though denied by the board, to be $22,500. Such a proposition involves and presents questions respecting the kind of apportionment required to be made by the state board to the county and to be made by the county board, and whether there was any fault or neglect in making a proper apportionment, and, if so, whether it was the fault of the state or of the county board, and, if of the former, whether Mammoth City may now be heard to complain and by mandamus seek a correction and require the board to make another, different, and proper apportionment, or a segregation of net proceeds, and so as to show what gross and what net proceeds were derived from the mines and mining claims in question within the corporate limits of Mammoth City. In that connection the further pertinent question is, though we direct the state board to now ascertain what gross and what net proceeds were derived from such mines and mining claims and to segregate such amount from the total assessment of net proceeds and transmit such facts or report to the county commissioners of Juab county, of what avail is that now to the plaintiff? The tax based thereon admittedly has been paid. May the county commissioners now make another apportionment based on such new or additional or further report or apportionment of the state board and demand a tax based thereon from the company and require it to pay the taxes which it already has paid, or may other taxing authorities of the county of the plaintiff do so? Surely the company may not thus be penalized and subjected to double taxation. Or may the plaintiff maintain an action for money had and received, or some other action, against the county, or some taxing district within the county having received the tax which Mammoth City ought to have received? We need not answer that, except to say that such a procedure at most is of doubtful cognizance, for, to permit the city to go back and undo apportionments long past made and completed and acted upon by the ¡various taxing districts in the county, and after taxes have been levied, collected, paid, and expended in accordance therewith, would result in administering a remedy more harmful than the wrong sought to be redressed and disturb, if not abrogate, the whole system or procedure of levying and collecting taxes.

Recurring now to the kind of apportionment to be made by the state board to the county: Section 5932, supra, provides that the state board must, “prior to the first Monday in May of each year, assess the mines, mining claims and mining property, and before the third Monday in June apportion the total assessment of the mines to the several counties in which the mines are located.” That the state board admittedly did, except that it did not segregate the assessment so as to show what net proceeds were assessed on mines and mining claims located in the various cities, towns, school districts, or other taxing districts in the county. And therein is the real bone of contention in this case. The same section further provides that the board shall each year prepare a book calld “the Assessment Book of Mines,” in which must be entered the assessment of all mines in the state subject to assessment of the state board, and in which must be specified in separate columns, under appropriate headings, owner of mine, name and description and location of mine, county in which it is situated, net proceeds in dollars if a metaliferous mine, value of mine, machinery, supplies, and other personal property, and of improvements. It is not contended that the state board is required to transmit to the respective counties in which mines, mining claims, and mining properties are assessed, copies of such assessment book. It, however is contended that the state board is required to make such entries in the assessment book for the benefit of county commissioners who, on inspection of the record, may ascertain what net proceeds were assessed on mines and mining claims situate in the various cities, towns and other taxing districts in the county, and thus enable them to make a proper apportionment of the assessment to such cities, towns and other taxing districts.

Whatever force the contention may have, nevertheless, the fact remains that the duty of making such apportionment to the various cities, towns, and other taxing districts in the county rests on the county commissioners sitting as a board of equalization and not on the state board. As to the latter, the statute but provides that it shall assess the mines, mining claims, and mining property in the state, and before the third Monday in June “apportion the total assessment of the mines to the several counties in which the mines are located.” By no express language does the statute require the state board to do more. Whether that is sufficient to properly apprise the county commissioners sitting as a board of equalization in making apportionments to the various cities, towns, etc., in the county is a matter of legislative and not of judicial attention. We have no right to enlarge upon it and for guidance to the county board in making its apportionment require the staté board to .do more than the statute itself in such particular demands. Sections 5925, Comp. Laws Utah 1917, and section 5938, Comp. Laws Utah 1917, as amended by chapter 114, Laws Utah 1919, provide that assessments made by the state board of railroads, telegraph lines, express companies, etc., and of mines and mining claims and mining ing properties, and apportioned to the several counties, shall, by the county commissioners sitting as a board of equalization for their respective counties, be apportioned to the various cities, towns, and other taxing districts in the county. It thus seems clear that in making the apportionment of assesments made by the state board the duty is cast upon the county board and not on the state board to apportion such assessments to the various cities, towns, etc., in the county. And in the absence of express statutory requirements we are not authorized to require the state board to make such apt apportionment, however needful or beneficial it might be to the county board. As to that the Legislature and not we must speak.

Further as to this: The statute, section 5926, Comp. Laws Utah 4917, provides that if the owner of any property assessed by the state board of equalization is dissatisfied with the assessment made by the state board, such owner, upon the third Monday in May and the second Monday in June, may apply to the board to have the same corrected in any particular. Section 5974 et seq. also provide for hearings before the board of county commissioners not later than the second Monday in June, but the state board (section 5984), whenever it may deem necessary, may reconvene the county board of equalization. And then section 5928 provides that the assessment made by the county assessor and that of the state board of equalization, “as apportioned by the board of county commissioners to each city, town, school, road, or other district in their respective counties, is the only basis of taxation for the county or any subdivision thereof, and for incorporated cities and towns.” Thus, though an improper apportionment had been •made due to the fault or neglect of either the state or county board, or both, and thereby a city or town or other taxing district in the county is deprived of its just proportion of the assessment and the tax based thereon, still, the question is, and as we think the most important and controlling in the case, may the city or town, after the apportionment has been made and wholly completed, lie by and wait until the taxes based on the apportionment of the assessment have been levied, collected, paid and expended, and then complain and seek to undo the apportionment? That, in effect, is what the plaintiff here seeks to do. We think it may not do so. To permit it is unjust, not only to the taxpayer, but to the various cities, towns, and other taxing districts in the county who, on the basis of the assessment as apportioned, levied their taxes and fixed their tax rates, and collected and expended their taxes accordingly. In such respect we think the case of Juab County v. Bailey, 44 Utah, 377, 140 P. 764, Rich County v. Bailey, 47 Utah, 378, 154 P. 773, and Ririe v. Randolph, 51 Utah, 274, 169 P. 941, are controlling.

In the first case it was contended by Juab county that the state board of equalization assessed and apportioned to Utah county a large amount of net proceeds derived by the Iron Blossom Consolidated Mining Company from ores extracted from mines situate in Juab county, and thereby the latter county lost a large amount of taxes which went to Utah county. Juab county applied to the state board for a hearing to make such fact evident and to induce the board to make a correct and proper apportionment of net proceeds to Juab county. The board denied the request, and hence Juab county applied to this court for a writ of mandate to direct the board to grant the hearing. The writ was denied. The court there had under consideration substantially the same statutes here under consideration. They are referred to at some length in the opinion. With respect thereto this court there said:

“It will thus be seen that it is absolutely necessary that the assessment, equalization, and apportionment of all property be completed within a certain period of time which is' prescribed by the statute for the reason that the rate of taxation can only be determined and the levies made for the purpose of raising the necessary revenues after the valuation and apportionments are finally determined and certified.”

Upon further considerations the court also said:

“We are of the opinion therefore that, if plaintiff desired to assail the correctness of the report made by the mining company, it was required to do so at some time before the apportionment was finally transmitted. To require the state board of equalization to reopen the matter after it had made the apportionment and the rate of taxation has been determined must result in producing gross uncertainty with respect to the amount of revenue any particular county will receive for a particular year. Suppose it should ultimately be decided that Utah county should surrender $500,000 of net proceeds to Juab county after Utah county has determined the rate of taxation upon the whole amount of property within said county, including said $500,000, will not the amount of revenue for Utah county be reduced very materially While the amount for Juab county will be correspondingly increased? Utah county may thus suffer a deficit in its revenues, while Juab county may have a surplus.”

Again said the court in that case:

“Assuming therefore that plaintiff may assail the correctness of the reports made by those engaged in mining, it has ample time and opportunity before the apportionment is transmitted to ask the state board of equalization for a hearing upon that matter if a hearing is necessary. If plaintiff can prevail in the present application, why can it not open up the apportionment made for the year 1912 and for the preceeding year? Clearly, the property owner who may have been excessively assessed would be denied such relief, and we cannot see how plaintiff can be given any greater rights.”

In Rich County v. Bailey, the syllabus sufficiently reflects the decision:

“Where an application for a writ of certiorari to review the action of the state board of equalization in apportioning to S. county for taxation railroad property claimed to be located in B. county was not applied for until after the second Monday in August, the date on which apportionments were required to be made by the county commissioners of the several counties of the state to the lesser taxing units, and the board did not clearly exceed its powers or jurisdiction, a peremptory writ would not be granted, in view of the disturbance of apportion-ments and tax levies in S. county and the mischievous consequences which would result.”

In Ririe v. Randolph, supra, this court again said:

“But the application was not filed in time. It was not filed in this court until the 25th day of August of the present year. ' At that time the assessment had been completed, the taxes equalized, the rate established, the funds apportioned, and the assessment roll had passed entirely beyond the control of every party defendant in this proceeding. The official power of these parties in respect to the matters complained of had completely expired under the statutes of this state, and this court cannot, without authority of law, clothe them with power to correct the wrongs complained of. If they have not the power to perform under the law, we cannot require performance at their hands. This principle is elaborately discussed and elucidated by Mr. Justice Frick in an opinion by this court in the case of Juab County v. Bailey et al., 44 Utah, 377, 140 P. 764. See, also Rich County v. Bailey et al., 47 Utah, 378, 154 P. 773. These well-considered cases clearly enunciate the principles by which we are governed in cases of this kind. They also appear to be in harmony with the law generally in other jurisdictions, and need not be further elaborated in this opinion.”

From these considerations it follows that the opinion heretofore rendered by us in the cause ought to be recalled, and the order or judgment of this court based thereon reversed and vacated, and the writ applied for denied. Such is the order.

In reaching this conclusion and judgment we are not unmindful of the desire expressed by the parties that we indicate that, though a number or group of mines and mining claims, are, as alleged in the answer of the board, owned by one person or company and by him or it mined and operated together as one mine, and though such mines and mining claims are all in one county, yet some in one and some in another city, town or other taxing district in the county, whether or not the state board, in assessing such mines and claims on the basis of net proceeds and in preparing its yearly assessment book of mines, nevertheless is re-quiréd to ascertain and enter in such book the name and description of each of such mines and mining claims and the location of each, not only as being in the county but also in what city, town, or other taxing district in the county, and ascertain and enter in such book not only the aggregate gross and net proceeds of such group or number of mines so operated and mined together, but also to ascertain and enter in such book the gross and net proceeds from ores extracted from each of such mines and mining claims constituting the group, and in such connection that we also define what is and what is not a mine or mining claim for taxing purposes within the meaning of the statute. From the conclusion reached that the plaintiff may not now, for the reason stated, undo or correct or modify the apportionment heretofore made, it is apparent that whatever view may be expressed by us with regard to such other questions would not in this case inure to the benefit of the plaintiff nor produce or justify a different result, and thus we find it unnecessary to express any opinion concerning them, and prefer to deal with them in a case where they are involved and necessary to a decision.

FRICK and CHERRY, JJ., concur.