Mercur Gold Mining & Milling Co. v. Spry

• Decision Date: 14 March 1898
• Docket Number: 898
• Citation: 52 P. 382,16 Utah 222
• Parties: MERCUR GOLD MINING & MILLING COMPANY, RESPONDENT, v. WILLIAM SPRY ET AL., APPELLANTS
• Court: Utah Supreme Court

52 P. 382

16 Utah 222

MERCUR GOLD MINING & MILLING COMPANY, RESPONDENT, v. WILLIAM SPRY ET AL., APPELLANTS

No. 898

Supreme Court of Utah

March 14, 1898

Appeal from the Third district court, Tooele county. A. N. Cherry Judge.

Action by the Mercur Gold Mining & Milling Company against William Spry, collector of Tooele county, and Tooele county. Plaintiff had judgment, and defendants appeal.

This action was commenced to annul and declare void a tax sale made of respondent's mining claim for taxes levied and assessed upon the net annual proceeds of its mine for the year 1896. The findings show: That the assessor of Tooele county failed to list or assess the net proceeds of respondent's mine in the manner provided for assessment of other property, but in June, 1896, assessed the net annual proceeds of the mine for the year 1896 at $ 350,000, upon the basis of the net annual proceeds of said mine between June 1 1895, and June 1, 1896, and returned said estimated assessment and list to the collector, whereupon there was carried upon the assessment books of the county a state tax of 5 mills, a state school tax of 3 mills, a county tax of 5 mills, a school tax of 2 mills, and a special school tax of 12 1/2 mills, on the dollar, for the district of Mercur making a total tax levy against respondent of 27 1/2 mills on the dollar, or $ 9,625, on the estimated assessment of $ 350,000. That the entire net proceeds of the mine between the 1st day of June, 1895, and the 4th day of January, 1896, were $ 171,874.99; that the entire net proceeds of its mine between the 4th day of January, 1896, and the 5th day of April, 1896, were $ 54,641.47; and between the 5th day of April, 1896, and the 1st day of June, 1896, $ 32 537.87,--which facts appear from the respondent's books, which were at all times accessible to the assessor. That when the respondent first learned of the assessment, in October, 1896, it applied to have the assessment corrected, but the commissioners of the county refused such request. That no notice of the kind, valuation, or taxes levied upon the net proceeds of the mine, nor any notice of the day fixed for hearing complaints before the commissioners, was given or served upon the respondent at any time. That the respondent had no notice or knowledge of any assessment on said mine until October, 1896, when it was notified to pay the amount of $ 9,625 as taxes so assessed. That no notice of any meeting to act upon assessment was ever given. That 10 mills upon the dollar, levied for the special school tax for the district of Mercur, was not levied or attempted to be levied by the resident taxpayers of the district, at any public meeting called or held for the, or for any, purpose of levying taxes; but the same was attempted to be levied by the trustees of the district, at a trustees' meeting, held on December 17, 1895. That between the date of filing the complaint and service of summons and restraining order, the collector sold to Tooele county, for said taxes, the mining claim of respondent, and delivered a certificate of sale, in due form, to the commissioners of the county, which was duly recorded. That this certificate was regular upon its face, and the appellants claim a valid tax certificate of sale thereunder. That prior to the commencement of this action respondent paid to the appellant $ 1,750 of said tax of $ 9,625 so levied, being 17 mills on $ 100,000; but appellants claim a further sum of $ 7,995.87, the balance of unpaid taxes, with penalties and costs. That in ascertaining and determining, for the purpose of assessment, the net proceeds of said mine for the year 1896, said assessor estimated the net proceeds of said mine from the 1st day of June, 1895, to the 1st day of June, 1896, and used the amount so found as the basis from which to determine the proceeds of said mine for the year 1896. That the respondent had no plain, speedy, and adequate remedy at law. That at the time of commencing this action the judge of said district court held that the facts stated in the complaint presented an unusual case, where the remedy provided against illegal taxes was inadequate, and granted the injunction for that reason. As conclusions of law, the court found that section 4, art. 13, of the constitution, was not self-executing, and was not in force until April 5, 1896; that the law imposing taxes upon the net annual proceeds of the mine was a new burden, and should be construed as prospective; that the 10-mill special school tax of Mercur district was void; that the payment of $ 1,750 taxes was in accordance with justice; that the taxes levied in excess of that sum were void; that the sale of the mine for the illegal tax created a cloud upon respondent's title, was void, and should be removed. A decree was entered for respondent accordingly. From this decree defendants appealed.

Affirmed.

A. C. Bishop, Atty. Gen., and Benner X. Smith, Asst. Atty. Gen., for appellants.

Frank Pierce and J. E. Frick, for respondent.

MINER J., delivered the opinion of the court. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.

Under the facts shown and found by the trial court, the questions to be determined in this case are--First, for what period of time and to what extent is the respondent liable for taxes upon the net annual proceeds of its mine for the year 1896 under the constitution and laws of this state in force at that time? And, second, was the special school tax in the Mercur district for the year 1896 a legal, binding tax, for which respondent was liable, and was the remedy selected and asked for under its amended and supplemental complaint, the proper remedy in such case?

The constitution of the state of Utah came into existence and was of binding force and effect, on and after the 4th day of January, 1896. Under section 2, art. 24, of the constitution, all laws of the territory of Utah up to that time, not repugnant to the constitution, remained in force until they expired by their own limitation, or were altered or repealed by the legislature. At the time the constitution became operative, there existed no territorial law providing for the taxation of mines or the net annual proceeds thereof. Subdivision 11, § 2009, Comp. Laws Utah 1888, in force when the constitution was adopted, expressly provides that mining claims and the product of mines and the ore in mines were exempt from taxation. Section 4, art. 13, Const., declares that "the net annual proceeds of mines and mining claims shall be taxed as provided by law." By this declaration the net annual proceeds of mines were no longer exempt, but were declared to be the subject for taxation as provided by law. At this time there was no provision of the statute by which such proceeds could be taxed, and by which such net annual proceeds could be ascertained. By the term "net annual proceeds of the mine" is meant what is annually realized from the product of the mine, over and above all the costs and expenses of obtaining such proceeds and converting the same into money. This construction was afterwards prescribed by section 64, p. 442, of the revenue laws of 1896. The effect of this provision of the constitution was, not presently to tax the annual product of the mines, but to declare that such product should be taxed as provided by law. This did not mean the present law, for there was no law making any such provision for taxation, but had reference to a law that should thereafter be enacted by the legislature for that purpose. This provision was a mandate or command to the legislature to enact a law by which the subject, or net annual proceeds of the mine, could be legally assessed. The product of a mine is usually uncertain. While the product may be large the first year, it may be greatly lessened, or the losses and expenses overbalance the product, the second year. With respect to the taxation of the net annual product of a mine, it must have been contemplated that the product should be ascertained at the end of the fiscal year, and should not be simply estimated by the assessor on the basis of its net product the previous year. Nor could it have been intended that the assessment should be levied unless there was some net annual product to levy it upon at the end of the year. This provision in the constitution contemplated that something more was to be done to carry out its mandate, and was, therefore, not self-executing. As a general rule, "where a constitutional provision furnishes no rule for its own enforcement, or where it expressly or impliedly requires legislative action to give effect to the purposes contemplated, it is not self-executing." 6 Am. & Eng. Enc. Law, 915. So, where the provision points to something more to be done, and looks to some future time for the accomplishment of what is required, the general rule is that it contemplates legislation to carry it into effect. Morley v. Thayer, 3 F. 737; In re House resolution (Colo. Sup.), 21 P. 471; City of New Castle v. Lawrence Co., 2 Pa. Dist. R. 95; Suth. St. Const, 362, 363.

After the adoption of the constitution, the revenue act of 1896 was enacted. This law was approved and went into effect April 5 1896. By subdivision 18, § 43, of this statute, assessments made in accordance with law before this statute went into effect were validated. The provision referred to in the constitution not being self-executing, and there being no law for the assessment of the net annual product of mines, this act could not apply to such product until it took effect, on April 5, 1896. Sections 62-69 of the revenue act, above referred to, applied to the assessment of the net annual product of mines, created a new burden, and therefore, under the rules of law, are subject to a strict construction. Suth. St. Const....