8 Nev. 15 | Nev. | 1872
Lead Opinion
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.
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
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.
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
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)
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
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.
Concurrence Opinion
specially concurring :
As I read tbe record in tbis case, tbe cost of extracting, transporting, and reducing tbe ores, of appellants exceeded sixty per cent, of tbe gross yield; so they claimed a further deduction, or, in tbe words of tbe statute, “additional exemption,” of fifteen dollars per ton, because tbe working was by dry process. Tbis claim was disallowed by tbe district judge, as I understand tbe decision, upon tbe ground that no allowance could legally be made beyond sixty per cent, of tbe gross yield; bolding the percentage specified in tbe statute to be in tbis case, as in every other, tbe maximum of deductions. Tbis view I believe to be correct; and so concur in tbe judgment.