State v. Kruttschnitt

| Nev. | Jul 1, 1868

Lead Opinion

By the Court,

Beatty, C. J.

This was an action brought by the State of Nevada against the Assessor of Storey County, and his sureties on his official bond, for malfeasance in office in having failed to assess the proceeds of mines in Storey County for the quarters ending on the thirtieth of June and the thirtieth of September respectively, in the year 1867.

The complaint contains two counts. The first is for failure to perform his duty in regard to the quarter ending June 30th, 1867. On this count there was perhaps a failure on the part of the State to make the proofs correspond with the averments of the complaint. The proofs offered in support of this count were not such as to present any of the more important points that were involved in the trial of the second count. For this reason the whole argument of counsel was directed to the rulings of the Court in regard to'the second count. For the same reason we may, for the present at least, pass to the consideration of that count.

In regard to the second count this state of facts appears : The Assessor called on the mining superintendents for a statement of the yield, etc., of their several mines for the preceding quarter. They furnished him statements showing the whole number of tons worked during the preceding quarter — the number worked by wet crushing, and the number worked by Freiburg, roasting or smelting process. The statements also showed the aggregate gross yield of all the ores, and the estimated net value per ton of the ores worked respectively by wet and dry process. The Assessor then entered on his books the net or taxable value of the different classes of ores from this statement, without making any estimate of the difference in value of gold and of paper legal tender currency, and in fact without making any estimate upon his own judgment of the value of the ores. The plaintiff alleges as a breach of the Assessor’s official bond, his failure to assess the value of the ores taken from the different mines.

The defendants contend, first, that the sole duty of the Assessor consists in procuring the proper statements from the mining superintendents of the result of the working of the several mines in his district for the preceding quarter, and entering those results in his book or list of assessments. That he cannot go behind these returns, or question these results. That he has no power to make any estimate for himself of any mine, except where there has been a refusal to furnish the proper statement by the mining superintendent.

Second — That even if he has the power to estimate for himself, he has not failed in his duty, or at least his failure has done the State no harm, for it is not denied that the statements copied by' him in his assessment roll are correct in all other respects, except that they fail to distinguish in their valuation between gold and paper currency; and this distinction he could not make without violating the laws of the United States. '

Third — That the tax on mines as now assessed and levied is unconstitutional and void, and the Assessors cannot be held liable for having violated an Act which is void and inoperative.

We have stated in the three foregoing propositions, we think, the substance of the points made by defendants’ counsel, (though not in their language) so far as it will be necessary to decide them in this case.

There are some minor points discussed in the briefs, which it will not be necessary to notice, because the Settlement of these three main points will dispose of the case.

We will discuss the points stated in the reverse order of their statements We have already held that the section of the Constitution which forbids the taxation of the mines, but requires the taxation of the proceeds of the mines, means that the entire proceeds of the mines shall be taxed; not the mere proceeds which happen to be on hand at the particular time the Assessor may happen to visit the mine. We have also held that all ad valorem taxes, whether on the proceeds of mines or other property, must be equal. See State v. Estabrook, (3 Nev. 173" court="Nev." date_filed="1867-07-01" href="https://app.midpage.ai/document/state-v-eastabrook-6667808?utm_source=webapp" opinion_id="6667808">3 Nev. 173) and The State v. The Cal. State Telegraph Co., decided in the present term. To have held that the Convention meant, when it provided for the taxation of the proceeds of mines in lieu of the body of the mine, that only such portion of the proceeds should be* taxed as happened to be on hand once’ a year, when the Assessor went to the mine to make his annual assessment, would have been equivalent • to holding that mines and their proceeds were practically to be free from taxation.- For as the proceeds óf mines are worked from day to day and sent from the State about once a week, there would never at any one time' be enough of the proceeds on hand to be worth taxing.

Since the decision of the case of The State v. Estabrook, there has been a decision of the Supreme Court of the State of Ca-lifor-nia, in the case of the People v. McCreery, fully sustaining our views in regard to the equality of the ad valorem taxation. The Constitution of California and our own are, so far as this point is óoncerned, about identical in language, and the Supreme Court of that State, composed of five Judges, came - unanimously to’ the same conclusion as this Court did on that point. Subsequently two new Judges came on the bench, and they, in a response to a petition for a rehearing, fully concurred with the rest of the Court, thus making seven California Judges concurring without a dissenting voice in the views expressed by this Court as to. the necessity of equality in regard to the rates of taxation on all species of property subject to an ad valorem tax.

But we are told this interpretation of the Constitution is so unjust and oppressive to the mining interest, that we should review our opinion, and if possible find some interpretation of that instrument less onerous and objectionable. We are even told if this harsh interpretation of the Constitution is insisted on, it may result in the mining counties repealing all law for the collection of taxes from the proceeds of mines. A regret was expressed on the argument of this cause, that the members of the Legislature from the mining counties had not defeated the entire revenue bill of 1867, rather than allow such oppressive taxation.

There can be no doubt but that whenever the interpretation of a statute or a constitution in a certain way will result in manifest injustice, ’ Courts will álways scrutinize the act or constitution closely to see if it will not admit of some other interpretation; for it is not to be supposed that any legislative body passes an Act for the purpose of doing a manifest wrong. Let us see, then, whether there is anything so manifestly wrong in the operation of this constitutional provision as we have interpreted it. With regard to ad valorem taxes on property, we believe it is by universal consent admitted that it is not unjust to make every species of property bear precisely the same rate of taxation. From this general rule there are sometimes deviations. But where there is such a deviation, it is usually upon the ground that there is some policy to be subserved thereby, not that the general rule would be unjust. If there is any exception to the general' rule, it must be in favor of property which is either totally or in a great measure unproductive. On such property it is sometimes contended that it is unjust to impose taxes, because it produces no income or immediate benefit to its holders.

But we have never heard it contended that any species of pro- ■ ductive property should, upon principles of justice, be excused from regular pro rata of taxation. Upon the several grounds that unproductive mines are of no certain value, were unable to pay taxes whilst they produced no income, and that it was impolitic to check mining development by taxing claims which paid nothing, the Constitution was so framed as to tax the proceeds of mines rather than the mines themselves. It will hardly be contended that the intention of this provision was to exempt paying mines from their regular pro rata of taxation. We do not understand respondents as arguing that pitying mines should not so pay ; but they contend the law and the Constitution as interpreted by this Court makes them pay more than their just proportion.

First, they complain that the mine has to pay four times a year, and other property is assessed only once. But the miner does not pay four times a year on the same property. He only pays the regular pro rata tax on the whole annual proceeds of the mine. If that tax was paid in installments every evening, making three hundred and sixty-five separate and distinct taxes paid annually, it would make the tax no greater than if all were paid at once. The tax is an annual ad valorem tax on the whole proceeds of the mine. That it is paid in four quarterly installments instead of one annual payment does not increase the burthen on the mine. The only possible difference it could make to the miner paying it in one or four installments would be in regard to interest. One who had to borrow the money to pay his taxes would have to pay a little more interest for the money if he paid one-fourth of them at the end of each quarter of the fiscal year than if he paid the whole at the end of the year. But as the revenue law is- arranged, the payment of taxes on the mines for the first quarter of any fiscal year is not due until say about the first of June, the second quarter the first of September, and the third the first of December, and the fourth the first of March following; the average time about the middle of October. This is about the average time for the payment of the annual taxes.' So the mines are not worse off on interest account than other tax-payers.

Look at this in- another light. The mines pay on the products -of the mine in lieu of the mine itself. Let us se,e if the annual produets of the mine are usually worth more than the mine. We will take the Savage for an example, as that for several years past has probably been the most regular in its yield, and has perhaps fluctuated as little in price as any of the mines. For the quarter ending the thirtieth of June, this mine yielded a taxable product on gold valuation of say $640,000 in round numbers. This would, if the yield equalled this much for each quarter, be a little over two and a half millions in gold subject to taxation. But it is -believed that this was over an average yield. ' In bad weather and with bad roads, the amount crushed would fall short of this amount. Probably this mine has never yielded much over $2,000,000 gold valuation subject to taxation. When paying fair dividends, the value of the stock has ranged considerably above $2,000; probably the average has not been much if any less, and possibly more than $3,000 per foot gold valuation. The mine contains eight hundred feet. Eight hundred feet, at $3,000 per foot, would be two millions four hundred thousand dollars. So that even this mine, in its most prosperous condition and paying the largest dividends, hardly pays as much by paying on all its products as it would have to pay if it paid simply a pro rata tax on the body of the mine.

If the calculation was made on nearly any of the other mines, it would appear that the mode of taxation is more favorable to them than if 'they paid on the body of the mine. It will be seen, then, that the paying mines do not often .pay more, generally hardly so much, as other property in proportion to their real value. Whilst they are non-paying, or producing no pay ore, they entirely escape taxation. The farmer, on the contrary, has to pay on the cash value of his land, although it may be entirely unproductive. So, too, the farmer pays not only on the land, but on the wheat and the1 other crops he raises on it.

But it is said the farmer only pays once in a year, and all the produce taken off his land in the'mean time escapes taxation. All products of the farm are annual, and if the Assessor does his duty scarcely anything escapes taxation. If when the Assessor makes his estimate there is a crop of hay, grain, potatoes, or other vegetables growing on the land, it enhances the value of the land and should go into its general estimate of value. If such crops are severed from the land then they are, or should be, assessed as other personal property. Indeed it not unfrequently happens that the same article is assessed twice. Wheat, for instance, is assessed to the farmer, and the same wheat when manufactured into flour is assessed in the hands of the miller or merchant. These, however, are inequalities that no law can guard against. Certainly the taxes as fixed by the Constitution bear less heavily on the mines than on any other interest in the State, whilst they are most able to pay and require the most protection from the laws, for it is well known that the amount of violence and crime is much greater in the mining than in the agricultural districts in proportion to population, and the State is put to heavier expense on account of the crimes committed in the mining counties. The man who can see only injustice to the mines in the Revenue Law as now framed and interpreted would never see anything but injustice in any system which required him to contribute his share to the public burthens. He would doubtless see much justice in a system that would excuse himself entirely, and throw all the burthens of supporting the State government on other classes.

We cannot see any force in the second point made by respondent. As long as three dollars in gold will buy as much as four in paper, it will be useless to say to persons possessing common sense that the two things are equal, or that Courts cannot distinguish between them. There seems to be some sort of vague notion that because the Government has made paper money a legal tender, it has attempted to make it equal in value to gold. But this is not so. If paper dollars were as valuable as gold dollars there would be no necessity of making them a' legal tender. People would take them for debts without any law compelling them to do so. One great reason for making paper a legal tender was the great rise in the price of gold as compared with other articles. If the Government had not made paper a legal ‘tender,- gold under the panic and increased demand caused by the war would have risen greatly in value and the whole debtor class of the nation would have been ruined. The man who before the war had purchased a tract of land for $10,000, paid $9,000 down and gave a mortgage for only $1,000, would under the joint effects of an increased demand for coin, and a panic in the money market, have found himself unable to sell the whole for enough to pay the $1,000 mortgage. All civilized nations among whom the use of bank paper has been known, ’ have occasionally been compelled to resort to some measure of this kind for the relief of the debtor classes.

But making paper money a legal tender for debts was not making it of the same value as gold, and nobody ever yet believed it could be as valuable as gold until it was at the pleasure of the holder convertible into gold. The difference in value exists. It is recognized by the General Government in various’ways, and all Courts and Legislatures must also recognize and. act on thé existing state of things. Suppose A has 100 bushels of wheat and B without authority converts it to his own use. A sues for the wheat and proves by two witnesses the ownership in himself, the conversion by B, and that the wheat was wórth $2.80 per bushel or $280.00 for the 100 bushels. B introduces ten witnessess, who prove that the wheat was only worth $2.00 per bushel: can it be doubted for a moment that A would be allowed to cross-examine B’s witnesses to show that the reason of the discrepancies in valuation was that defendant’s witnesses valued the wheat in coin, whilst plaintiff’s had valued it in paper currency. And would not the Court in such case instruct the -jury that they must take notice of the difference in value of the two kinds of currency, and assess the damages on a paper basis because the defendant would, as a matter of course, disehai’ge whatever judgment was given against him in that currency which was most easily attained, or in other words, the cheapest in the market ? If Courts failed or refused to notice the difference in the two kinds of currency, it'would in many instances result in damage or loss. • To take notice of and be governed by facts as they exist cannot be wrong. There are two kinds of money of unequal value. To produce uniformity of assessment it was indispensable that the Legislature should direct Assessors as to the kind of currency on which they would base their estimates of value. The Legislature has done its duty and Assessors must obey and respect the law.

Section 101 of the Revenue Act reads as follows:

“ Between the first Monday in January and the first Monday in February, also between the first Monday in April and the first Monday in May, also between the first Monday in July and the first Monday in August, also between the first Monday in- October and the first Monday in November, in each year,' the County Assessor shall ascertain, by diligent inquiry and examination, the name, title, and location -of all mines and mining claims in his county, from which gold and silver, or either., is extracted; and also the names of all persons, corporations, associations, companies, or firms, owning or claiming, or having possession or control thereof; and he shall then ascertain and determine, as provided in this Act, the number of tons and the value per ton of all ores, quartz or minerals extracted for reduction from the said mines or mining claims, as aforesaid, and shall list and assess the same to the person, firm, corporation, association or company, extracting the ores or minerals as aforesaid, or owning or having possession, charge or control of said mine or mining claim. Eor the purpose of enabling the Assessor to make such assessments, he shall demand from each person and firm, and from the president, superintendent, treasurer or managing agent of each corporation, association, or company engaged in extracting minerals, quartz, or ores bearing gold and silver, or either, a' statement, under oath or affirmation, of the total amount and value of all gold and silver bars and bullion received or produced from his or their mines or mining claim, from reduction of ores, quartz or minerals from his or their mines and mining claim, for the three months next preceding such demand of the Assessor ; also the number of tons from which said amounts were received or produced; also the value and number of tons shipped from the State for the three months next preceding. The books relating to or used in the transaction of the business of any person or firm, company, association, or corporation, engaged, in extracting ores, quartz, or minerals bearing gold or silver, or either, for reduction, shall, on demand of the Assessor or his deputy, be open to his inspection. If any person, superintendent, officer or agent shall neglect or refuse, on demand of the Assessor or his deputy, to give, under oath or affirmation, the statement required by this section, or shall neglect or refuse to give, on demand, access to the Assessor Or his deputy to the books, as aforesaid, such person, superintendent, officer, or agent, shall be guilty of 'a.misdemeanor, and shall be arrested On complaint of the Assessor or his deputy, and on conviction thereof, before a Justice of the Peace, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the County Jail for not less than twenty days, nor more than three months, or by both such fine and , imprisonment.”

This section requires the Assessor to ascertain, by diligent inquiry and examination the names of mines, and also requires him to ascertain and determine, as provided in this Act, the number of tons, value, etc., of ores.

For the purpose of enabling the Assessor to make such assessment he is authorized to call for certain sworn statements, and is also authorized to examine books, etc. There is not a word in the section requiring him to' be governed by the sworn statements any more than by the books. There is no legal presumption that the sworn statements and the books may nob disagree. Indeed, it could only have been on the supposition that these sworn statements might be false, imperfect or fraudulent, that the power to examine books was given to the Assessor. If the statements were’ to be conclusive, why give the Assessor power to go behind the statement and call for the examination of the books of mining companies ? This part' of .the section means just what it says: that for the purpose of enabling the Assessor to make a correct estimate of the value of ores, he may call for certain evidence. • When that evidence is produced he must be governed by it as all persons are governed by evidence just so far as’it is reasonable, consistent and not contradicted by other evidence of greater force or weight. But still it is only evidence and the assessment is the result of the judgment of the Assessor,'founded on that evidence. The requirement that the value shall be ascertained as provided in this Act evidently has reference to the mode of allowance for the cost of working. In other words, the Assessor after having determined in his own mind the number of tons worked and the yield of those tons for the last quarter from the best ■evidence and all the evidence before him or within his reach, must then proceed to fix the assessed value by deducting from each ton worked $18 if worked by wet crushing, or $40 per ton if worked by any roasting or smelting process. And under the amended law he must make all those estimates on the value of the ore in paper money, ascertaining from the best means within his reach the compai-ative value of coin and paper. The language of this Section 101, taken in connection with Section 99 as amended in 1867, which directs that all ores shall be assessed at their value when severed from the mine and deposited on the surface, and also directs the manner in. which this value is to be ascertained by deducting the cost of the working from the yield of the ore, is too plain to admit of misconstruction. The first section of the Act, in language as plain as can be used, directs the valuation to be made on a paper currency basis.

But it is contended that Sections 107 and 123 show that it was intended that the sworn statements of the mining superintendents should be conclusive.

Section 107 provides that the assessment rolls, after being completed, shall be delivered to the Auditor who, among other things, shall ascertain that the assessments entered therein shall comply with the sworn statement — and when no statement has been furnished, that fact is noted — and that the proper calculations and additions shall be made to complete the assessment roll.

This section, however, does not authorize the Auditor to make the assessment roll conform to the sworn statement. It does not in fact authorize the Auditor to do anything but to make certain calculations.

No doubt the reason for requiring the Auditor to make this comparison was to detect any clerical mistakes that the Assessor might have made in transferring the result of these statements to his assessment roll. How these mistakes or errors were to be corrected the law does not point out. Probably the opinion prevailed that the Board of- Equalization could do it. But as that Board only met once a year it is evident at least three quarters in each year could not be equalized. It is also evident that in framing this section the draftsman only had in view two methods of making assessment: the one from the sworn statements of owners or superintendents, etc., and the other in cases where there had been a refusal to give any statement.

And practically for long periods of time those might be the only kinds of assessments made. Probably no case ever has arisen, and for years no such case may arise, as- to require an Assessor to go behind such sworn statement. But the power to do so is clearly given in Section 101, and the mere omission in Section 107 to direct how the Auditor shall proceed where that power is exercised by the Assessor cannot take away the power. The draftsman of Section 10.7 simply omitted from that section a few words which were necessary to make it congruous with Section 101. This omission only made a verbal incongruity; it in no way affected the efficiency of the law. The duty of the Auditor in those cases where there was no clerical error was plain.

He had to carry out the assessment as made by the Assessor. If the assessment was based solely on the sworn statement, the Auditor' must carry out the figures as made by the Assessor. If made as directed when no sworn statement was furnished,-he must do the same. If based upon the "result of the quarter’s work as shown by the books of the mining company or any other competent evidence, he must do the same. Doubtless it was intended that in every case where the Assessor based his assessment on other testimony than the sworn statement it .should so appear-on his assessment roll.

In these cases, however, where the Assessor professed tobase his assessment -solely on the sworn statement, it was clearly made, the duty of the Auditor to examine his calculations, to ascertain whether there were any errors in calculation, or clerical errors of any description. The greatest incongruity in this section is that it does not direct how errors that are detected are to be corrected. Probably the draftsman thought they might be corrected by the Board of Equalization,.after being pointed out by the Auditor. Section 123 prescribes the form of a complaint, and the draftsman again seems to have thought that all assessments must be based on sworn statements, except in those cases where the parties refused to make statements. But this incongruity cannot take away from the Assessor the power clearly given in Section 101.

Sections 107 and 123 are both part of the old law as it stood in 1865, and have not been amended. Supposing now that they do show (and we only admit this for the sake of argument) that the Legislature of 1864-5 did intend the sworn statement should be final. Section 106, which was amended in 1867, shows far more clearly that the Legislature which amended the law that year did not contemplate the sworn statement should be final. It contemplated the Assessor should exercise his judgment, and from that judgment there should be an appeal to the Board of Equalization. If the sworn statements of the. parties themselves were to be conclusive, why allow an appeal to the Board of Equalization. To allow a party to fix his own taxes, without any power on the part of the Assessor to interfere with his estimate, and then allow the same party -to appeal from his own estimate, would be absolutely absurd. This Section, 106, having been the latest amendment, must control any inference to be drawn from Sections 107 and 123.

The present Revenue Law, altogether a piece of incongruous patchwork, amended at every session of the Legislature in some sections, without making other sections conform to those amended, is still clear enough, and plain enough, as to the proper manner of assessing the products of mines. The most essential things in the assessment are these:

First — The. ores are to be assessed at their value when severed from the mine and deposited on the surface. Second — All assessments aré to be on a paper currency basis. • Third — The assessment is not to be made until after the ores shall have been worked and the bullion extracted, so far as ores are concerned, which are worked in this State. Fourth — To produce uniformity in assessment, the value of all ores on the surface shall be ascertained and fixed as follows: The Assessor shall ascertain what the ores from each mine for the preceding quarter did actually yield, and after having ascertained the true value in paper money of the actual yield, he shall deduct from the actual value of the yield eighteen dollars for each ton worked by wet process, and forty dollars for each ton worked by any roasting or smelting process, the remainder to be the estimated true value of the ore at the dump. To enable-the Assessor to find out the yield of ore, he -is authorized to require written and sworn statements from owners, superintendents, etc., and- he is also authorized to have access to their books to satisfy himself in these respects; and we have no doubt he may resort to any other legal evidence to satisfy his own conscience, where he •doubts the truthfulness or correctness of these reports. Having ascertained the number of tons worked by wet and by dry process, and the gross yield, he must then ascertain the value of that yield in paper money. Exactly how he is to determine the difference in value between gold and paper money the statute does not point out, but he must do that from the best lights he has before him., Practically there can be but little difficulty. The prices current in the daily newspapers show as nearly as may be.the relative value of paper and. gold. The average of these prices for the preceding quarter would be the true standard. Thus, an assessment is made in May, 1867, for the proceeds of mines for the first quarter of that year. The average relative value of gold and paper from the 1st day of January to the 31st of March, 1867, both inclusive, would be the proper standard by which to fix the value of the products of the mines for that quarter. The value must be fixed upon the comparative value of money when the mineral was worked, and not what it may be at the time when the assessment is made.

Taking these principles, let us apply them to this case and se.e what are the rights of the parties. The Assessor called, for the sworn statements which the law authorizes him to call for. Those statements are required to show, first, “ the total amount or value of gold and silver bars * * produced.” The sample of statements given, that from the Savage mine, (and all others are admitted to be like this) shows substantially the total amount and value of all bullion produced for the quarter ending June 30th, 1867, to have been $1,102,718, 39-100. This part of the statement is in conformity with the requirement of the statute, except it omits the word amount, and only uses the word value before the figures expressing the sum total. Then comes the direction that the' statement shall show the moneys (meaning doubtless both the amount and kind of money) .received from the sale of ores sent abroad. Lastly, the statement shall show the number of tons from which the several amounts, have been received. In this case there was no ore sent abroad, so no question arises on this point. In regard to the number of tons worked, the statement shows distinctly what number were worked by each process. This is precisely what the statement ought to show. Then in addition to these statements (which are all that the statute requires) there is a statement of the value'per ton of the ore worked by each kind of process. This is wholly unnecessary — at least this part of the statement has no legal effect. It may be and perhaps is quite convenient, but it is mere surplusage, so far as the statute is concerned.

The first item of this statement which we have noticed (though it seems last in order in the statement itself) is the amount or value of the whole quarter’s yield. The statute says the statement shall show the amount and value. If the amount is shown it may be shown either in ounces and the fraction of an ounce, or in dollars and centsi By either expression you may show the magnitude, or in other words, the amount of a bar of bullion. Doubtléss when we speak of bullion which, like all that is produced from our mines, is a mixture of gold, silver and baser metals, the most convenient method is to express its amount in dollars and cents. That amount means of course dollars in coin.' It has no reference to its value in paper. Then if this statement had shown that the total amount of bullion received was $1,102,718.39, the most carping critic would not have questioned that it meant that value in gold and silver, and not in paper. The omission of the word amount and insertion of the single word value, when the statute requires both amount and value, leaves room for some carping criticisms as to what that value means. But we apprehend there is no substantial reason for doubt. The general, perhaps universal custom west of the Rocky Mountains, is to sell bullion, and to quote it at its value in gold. The general custom of all mines is to make their dividends in gold and not in paper. All their accounts and statistics are kept in gold. This is a part of the history of the country and known to all intelligent persons. Besides, the statement omitted to use the word amount which the statute expressly requires, and used only the words total value. This omission shows one of two things: that the superintendent who made out this statement (supposing him to have known the requirements of the statute, and we cannot presume that he was ignorant of the law under which he was acting) either omitted the word amount, supposing value synonymous therewith, or else omitted it as a device to evade his duty. If he treated the two words value and amount as synonymous, as we have every reason to believe he did, then the total value meant the total amount and value in coin.

• Knowing-the great responsibility of the position of mining superintendents and the necessity of the stockholders placing gentlemen of the highest character in such places of trust,' we cannot for a. moment believe that any mining superintendent did or would resort to any trifling evasion in-a case of this sort. We think the superintendent used the word value as synonymous with amount, as is constantly the case in common conversation and newspaper reports. When a newspaper says a bar of bullion contains so many dollars, we all understand it means coin dollars, and not the value of so many paper dollars. .If we say a bar of silver bullion contains a hundred dollars, we mean it contains silver enough to coin two hundred half dollars - at the United States Mint. If we say of gold bullion it contains one hundred dollars, we mean it contains enough gold to coin ten eagles or five double eagles. We think the superintendent so understood and so used the term. And so using it, he gave just as definite an understanding of the amount of the bullion as if he had given the number of ounces of gold and ounees'of silver contained therein. And he gave it in more tangible and convenient form. If he had given the return in ounces 'of silver of such a fineness, and ounces of gold of such a fineness, it would have required a long calculation on the part of the Assessor to have ascertained the number of coined dollars it would produce. The only .defect in this certificate is the slight oversight in omitting the words “ amount and ” before the word “ value.”

If, however — a supposition we are unwilling to indulge for a moment — the word amount was omitted as a device .to evade the law, it was a very shallow one, and could not have deceived the Assessor or any other man of common understanding and acquainted with the language and common usages of the country. It was the plain duty of the Assessor to have treated this statement as a statement of the total amount of bullion realized' from the mine. To this amount should have been added a sufficient percentage to fix the paper money value. From this gross amount should have been deducted $462,620, that is, $18 per ton on 25,610 tons, and $40 per ton on 41 tons. This would have shown the amount subject to taxation.

We have simply taken the statement which was in the record as an example to show how the assessments should be made under the statute. This particular statement was one given in July, 1867, for the preceding quarter. For this quarter the Assessor did make an assessment, and probably in good faith intended to perform his duty. He did reduce the returns in gold to a greenback basis. The only error he seems to have committed was that he deducted the eighteen and forty dollars .(the cost of reduction) per ton, before the amounts were reduced to a greenback currency basis instead of after. In other words, he allowed eighteen dollars per ton in gold for wet crashing and forty dollars in gold for the fire process, instead of eighteen and forty in paper currency, as we understand the law. This may have been the result of a want of judgment. The State officer prosecuting this suit will of course have to be the judge whether, under such circumstances, it is proper to pi’osecute a suit against the Assessor. It is a principle of law, however, that one who undertakes any employment must understand his duty, and this Court cannot excuse him for want of knowledge.

In regard to the assessment for the third quarter, the case is very different. In that case there was a deliberate, premeditated violation of the law. The testimony of the Assessor himself in regard to the assessment for the second quarter of 1867 shows that he understood the law fully, and knew perfectly well what his duty vras, except in one respect, and that was in mailing the eighteen and forty dollar deductions in coin instead of paper.

The proof offered by plaintiff was amply sufficient to show that the Assessor willfully refused to perform his duty, and should have been admitted. The judgment must be reversed and the case sent back for a new trial and further proceedings, in accordance with the principles laid down in this opinion.'

The complaint, however, will certainly have to be amended before another trial. It seems that the bond given by the Assessor is only fox $2,500 ; so this suit is brought, it would seem, on the bond against the sureties ‘for that amount, but damages are claimed against the Assessor for $10,000. We know of no principle or practice by which a suit on a bond against A, B, and C can be united with an action for damages against A alone.

The plaintiff will have to elect to prosecute the suit against the principal alone for the whole amount claimed, or against the principal and sureties for the $2,500. The two actions cannot be united.

Of course, if the action is prosecuted against the Assessor alone, and a judgment obtained for official delinquency, this would not prevent a future action on his official bond, if the State were unable to'collect the individual judgment.

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Concurrence Opinion

Lewis, J.

I concur with the Chief Justice in the views expressed by him upon the first proposition discussed, and in the conclusion at which he has arrived upon the last; but my interpretation of the law upon this point differs somewhat from the construction placed upon it by him. I am of the opinion that the statute requires the statement furnished by the mining superintendents to show the amount, that is, the amount in weight of the pure gold and silver extracted from the ores. The word “ amount,” as used in the law, certainly does not mean the amount in dollars, for that would simply be a statement of the value, and the statute requires both the amount and value to be given. The statute also declares that the value of the ores shall be ascertained by the yield of gold and silver, no account béing taken of the base metals: hence it seems to me that when the statute requires the “ amount ” of gold and silver bullion to be stated, it means the amount in weight; and as the pure gold and silver only are taken into account, the weight of those metals only is to be given, and the weight of each should of course be stated. ’ Thus, when a statement is made out, the Assessor may at once calculate the value per ton of the ores from the amount in weight of the gold and silver extracted therefrom. If the statement be made out in accordance with my views of what is meant by the word “amount” as used in the statute, it will.never be necessary for the Assessor to look beyond the statement, for when the number of ounces or pounds of pure gold and silver is given, it becomes a mere matter of mathematical calculation for the Assessor to ascertain its value in paper currency. I am, however, inclined to believe that the statement is not conclusive on the Assessor even-when made out in conformity with the requirements of the laws; at least it is not when, as in this case, the most essential part of it — that is, the amount of the gold and silver — is not contained in it.

The Court below therefore erred in excluding the evidence offered by the State to prove that the valuation of the ores was in coin and not in the paper currency.

I concur in reversing the judgment.

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Concurrence Opinion

JOHNSON, J.

On the one point discussed by Justice Lewis, I concur in both the reasoning and conclusions as therein expressed. Upon the other points discussed by the Chief Justice, I concur in the conclusions attained and in the judgment of reversal.