State v. Eureka Consolidated Mining Co.

8 Nev. 15

• Court: Nevada Supreme Court
• Decided: April 15, 1872
• Status: Published

Opinions

By the Court,

Garber, J. :

This action was instituted to recover the tax assessed on certain ores, under the provisions of the act entitled “An act providing for the taxation of the net proceeds of mines,” approved February 28, 1871. The ores were extracted by the appellant during' the quarter commencing January 1,1871. The gross yield thereof was between thirty and one hundred dollars per ton, and (it will be assumed) they were worked by Freiburg, or dry process.

The appellant contended that the assessment should be made as follows : “From the gross yield of the ore, deduct the actual cost of extraction, reduction, etc.; or, if this exceeds sixty per centum of the gross yield, only deduct this percentage — then, from the remainder, deduct the additional exemption of fifteen dollars for each ton, and the remainder is subject to taxation.” But the court decided that the maximum of deductions to be allowed is obtained ,by adding to sixty per centum of the gross yield fifteen dollars for each ton; and that subject to such maximum, the actual cost of extraction, etc., is to be deducted from the gross yield, the remainder being subject to taxation; consequently, as in this case the actual cost did not exceed sixty per. cent, of the yield, no portion of the asserted exemption of fifteen, dollars per ton was allowed. We are clearly of opinion that the decision was correct.

The section of the statute upon the cohstruction of which the decision depends, so far as it applies to ores of this description, enacts that all ores shall be assessed as follows : From the gross yield, there shall be deducted the actual cost of extraction, transportation, and reduction or sale; and.the remainder shall be deemed the net proceeds, and shall be assessed and taxed; provided, that in no case whatsoever shall the whole amount of deductions allowed to be made in this section from the gross yield exceed sixty per centum of such gross yield; provided, that an additional exemption of fifteen dollars per ton may be allowed on all ores worked by Freiburg or dry process.

The intention of the legislature, the thought which this section expresses, is obvious. First, to tax the gross yield, less the actual cost; and, second, to limit a maximum, beyond which not even actual cost should be deducted. The grade of the ore and the nature of the process are material only as a means of arriving at what are to be deemed the net proceeds, to tax which is the avowed object. So, in fixing the limit of deductions, so as to approximate as near as might be the actual cost, these considerations became important; and, consequently, this limit was arranged on a sliding scale, varying with the grade of the ores and the nature of the process. It was so arranged because, and only because, experience had shown that the cost of reduction usually varies according to the same conditions. There is no more propriety in allowing the fifteen dollars per ton to be deducted, without regard to the actual cost, than in allowing the sixty per cent, to be so deducted.

It is argued for the appellants, that: “The question is whether the last proviso means in fact an exemption. The words, additional exemption of fifteen dollars, certainly imply that there are some other exemptions;'and, if we can discover these, the section is free from ambiguity. With Webster’s definitions of “exempt” and “exemptions” in view, it is clear that the sixty per centum is not an exemption, but is a limit upon the exemptions made by the deductions for extraction, etc. — not being an exemption, the fifteen dollars cannot, with propriety', be coupled with it as an additional exemption; and it follows, therefore, that the fifteen dollars is an exemption additional to those allowed to be made for the extraction, transportation, and reduction or sale of the ores.” This is ingenious, but, we think, too partial and refined. According to Webster, “to deduct” may mean the same thing as “to exempt”; and whatever is deducted under the provisions of the statute, is ipsofaofo exempted or freed from the burden of taxation.

The enacting clause of the section is, that from the gross yield there shall be deducted the actual cost.' This is the leading idea of the statute — the general rule proposed. The office of a proviso is to except something from the enacting clause, or to qualify or restrain its generality. Per Story, J., 15 Pet. 445. The last clause or proviso cannot be read as if it were a substantive and distinct enactment. The statute is as if it read: “Erom the gross yield the actual cost shall be deducted, subject however to the .two following-qualifications and exceptions, viz: such deduction shall not exceed sixty per centum of such yield, unless the ore is worked by dry process, in which case, an additional deduction of fifteen dollars per ton may be made. ” The proviso does not abrogate the rule adopted by the enacting clause, but merely qualifies the generality of that rule, which otherwise would have allowed the deduction of the cost without regard to its amount. Whatever is deducted over and above the sixty per centum, is surely a deduction additional to that allowed to be made on ores worked by wet process. It is an additional exemption — an exemption of another portion of the actual cost.

The actual cost must be deducted, except as the statute otherwise expressly directs. By adding the sixty per centum to the fifteeh dollars per ton; or, by adding to the amount allowed for wet process, the additional amount allowed for dry process, we get the amount which may be allowed on ores worked by the latter. Below this limit, there is nothing in the statute forbidding the deduction of actual cost. Above it, the deduction of even actual cost is expressly prohibited. While the sixty per centum is, in one sense, a limit upon the exemptions allowed in all cases where the excepted process is not used, so equally is the fifteen dollars per ton a limit upon the additional exemption allowed in that specified case. In another sense, the sixty per centum may as well be termed an exemption of sixty per centum, as the fifteen dollars per ton, an exemption of fifteen dollars per ton. Eor wet process is allowed an exemption of sixty per centum; for dry, an additional exemption of fifteen dollars per ton — -the exemption consisting of actual cost in the one case, as well as in the other.

Ob the trial, the plaintiff offered as evidence portions of the original and delinquent quarterly assessment rolls. The defendant objected to their introduction on the ground, “that there are no dollar marks placed to the figures and numbers purporting to indicate the amount of the tax due or assessed, or to any figures or numbers therein, and that it has no other marks indicating what is meant by those figures or numbers.” The evidence was received and an exception taken. In support of this exception several authorities are cited. In Lawrence v. Fast, 20 Ill. 338, a judgment for taxes was offered in ejectment. It was rejected on the ground that it did not show the amount of tax for which it was rendered — that the use of the numerals without some mark, indicating for what they stand, is insufficient. The court said there was no mark, sign, or abbreviation in any way connected with the figures showing for what they stood. The figures were 2 48, written in a column headed “total.” Breese, J., dissented, saying: “The. form pursued by the collector is precisely the form given by the statute, and so is the entry of the judgment. It is certain to every ordinary intent that the figures in the proper columns indicated cents or dollars and cents. The most common man would so understand them, and would not be misled by them. The figures ‘2 48’ must, of necessity, mean two dollars and forty-eight cents, or two hundred and forty-eight cents, which is the same. Mills are never expressed in that way. Courts of justice must draw the same conclusions from the same facts which the mass of the community would draw from them. Taking the columns with their headings and the figures in them as they stand, can any reasonable man doubt that dollars and cents or cents only were intended ? I think not. It is not certainty to every intent in particular that is required in such proceedings, but common certainty.” In 31 Cal. 132, the rule established in 20 Ill. was followed and applied to a case where the assessment roll was offered to sustain a suit for taxes. There, in a column headed “valuation,” was written “101,937 18.” The court say: “It is necessary that there should have been a tax assessed, and that the amount be ascertained, otherwise there is no basis for a judgment to rest upon; that if the assessment is so defective that the court cannot determine what is intended, it is insufficient as evidence to authorize a judgment: that a ‘valid assessment’ is the foundation of all subsequent proceedings.” The same has been held in other California oases, all resting avowedly on the authority of the case in 20 Ill., and cases in 21 and 23 Ill. to the same effect. Woods v. Freeman, 1 Wallace, 398, also holds that a judgment for taxes similar to that rejected in 20 Ill. cannot be introduced in ejectment. The decision is expressly placed upon the ground, that the validity of the judgment depended upon the construction of an Illinois statute, and that, therefore, the interpretation already given to the statute by the highest judicial tribunal in that State must be followed.

By another statute of Illinois, one holding a colorable title to land might perfect it by continuing in possession for seven years, and also, during that perjod, paying “all taxes legally assessed on that land.”

In Chickering v. Faile, 38 Ill. 342, one of the parties claimed title by such a payment. It was objected that the taxes so paid, had not been legally assessed, because there was no word or character, annexed to the valuation, to indicate the sum in dollars and cents. The question presented was, therefore, whether such is a legal or valid assessment. The court say, referring to their earlier decisions above cited: “In a proceeding to divest title by summary action, it has been held that such a defect in the judgment for the taxes rendered the sale void. But this is a'different question. We are not prepared to hold that such an assessment is void, as, if it is, all the acts performed under the assessment would render the officers wrong-doers, and subject them to an action for taxes collected on the assessment, and the collector a trespasser for distraining property for the collection of such taxes. We do not regard this omission as rendering the assessment illegal, nor the tax extended upon it, although there may have been nothing but the numerals to indicate its amount. We are not disposed to apply the want of á word or character to the numerals, to indicate the sum of taxes due, as a defect to anything prior to the application of the collector for a judgment against delinquent lands, and would not even apply it to the judgment, were it not that the judgment must find the sum for which it was rendered. To all (of the proceedings prior to the judgment for taxes, all persons know what the numerals represent, the amounts, and act upon them accordingly. And persons might so understand in a judgment; but we understand the law to be inflexible, that the judgment must, in terms, find the sum due.”

Elston v. Kennicott, 46 Ill. 202, presented the same question, and it was again affirmed that the want of the dollar mark is no defect to any matter or thing prior to the application for judgment.’ In this case, the taxes were paid for six of the seven years, and the excuse for the failure to pay the assessment levied during the remaining year was, that the taxes for that year were not legally assessed — the roll not containing the dollar mark.

We have set forth all the authorities bearing on this question, to which our attention has been called, because there is much in them which goes far to justify the confidence with which counsel has pressed this assignment. Upon principle, we think, the opinion of Judge Breese presents the more reasonable and common sense view of.the question, especially as applied to the facts of this case. In the rolls admitted in evidence, the columns headed, “gross yield,” “actual cost of extracting,” etc., “total cost,” “amount deducted,” etc., “net yield,” etc., and “total amount of tax,” are each divided into two unequal spaces by ruled lines; the smaller space, on the right, being of the size to admit two figures, and containing throughout the roll only two figures on each line, while the larger space contains from one figure up to six, being evidently so ruled as to admit any number of figures likely to be called for to express the number of dollars in the largest assessments. By our statute (1861, p. 99) it is enacted that the money of account shall be the dollar, cent, and mill, and that all accounts in the public offices, and other public accounts, shall be kept accordingly, and that no proceeding shall be considered erroneous because the amount is computed in dollars and cents, omitting the mills. The form of the assessment roll, given in section 2 of the statute in question, also shows that it was contemplated that the amounts should be computed in dollars and cents only.

As matter of experience and habit, we also know that mills are usually disregarded in all these proceedings. The fair and reasonable presumption, in the absence of anything in such a roll as this to show the contrary, is that the figures in the smaller subdivision of the columns indicate cents, and those in the larger, dollars. The addition of the dollar mark would not make this more apparent. A sum of money, of course, is taken to be intended. By the statute of 1861 this can only be dollars, cents, and mills. The subdivisión of the columns and the manner in which they áre filled up unmistakably point to the rejection of one of these three denominations. Mills alone can be so rejected without rendering the proceeding erroneous. It was perfectly proper and legal for the assessor to omit these, and he is presumed to have done his duty.

Upon authority, it cannot be claimed that either doctrine has become settled law by the rule of share decisis; or that, against our sense of right, we are bound to follow these recent and not altogether consistent or harmonious adjudications of two of our sister states — and, perhaps, the most that can be claimed is a conflict. The cases cited all purport to follow the Illinois ruling, and according to that, as explained in the later adjudications, it was proper, in making up the delinquent list, for the officer to assume that the numerals on the original roll represented dollars and cents, and to act upon them accordingly, by so designating them in the former. The delinquent roll is sufficiently explicit in this respect, according to all the authorities. See 33 Cal. 171. The dollar mark is prefixed to all the money columns, except the last headed “total amount of tax,” and even that is footed up aud the mark prefixed to the sum total. The delinquent roll, by the express terms of our statute, was all the plaintiff need have introduced to make out a prima facia case. The introduction of the original roll, though unnecessary, did not, under the Illinois doctrine, destroy this case, for it proved a valid assessment, and so went to sustain the delinquent roll which furnished sufficient legal evidence to enable the court to determine with certainty the amount for which judgment should be rendered.

There is nothing in the point that the assessor was bound to assess the ores in conformity with the statement furnished him by the superintendent of the defendant. The only deductions entitled to a place in the statement were, by the express wording of section 2, those relating to actual cost. Matters inserted in the statement, the insertion whereof is not authorized by the statute, go for nothing. Besides, the deduction of fifteen dollars per ton made in the statement, only amounts to the superintendent’s construction of the statute, and his assertion of a corresponding claim to exemption. If this is to govern, much time has been wasted in construing the statute.

The notice in writing, required by section 7, is not a prerequisite to the liability of the defendant to the tax. Such notice is only necessary to hold a party reducing ores, extracted by others, to the extent of the value of the ores in his possession when notified. Equally untenable- is the position that the tax cannot be collected quarterly. As counsel say, the word “manner,” in section 10, does not mean “time.”

We do not see how the record can be construed as showing that the cost of extracting, transporting, and reducing the ores exceeded sixty per cent, of the gross yield, or that the appellants made any such claim. The answer expressly admits and avers that said cost was sixty per cent, of such yield; and, though the statement of the superintendent gave the cost as exceeding the sixty per cent., there is no showing anywhere how much the excess was, and, of course, no claim could have been based thereon.

Tbe judgment and order appealed from are affirmed.